2011 Regulatory Guidance and Policy Initiatives Expected to be a Positive Impact on Development

New Jersey LSRP and Site Remediation Reform

November 7, 2011
by BRUCE S. KATCHER
Client Alert Newsletter Forecast 2011

2011 will be a very important year in the development of the reforms contemplated by the New Jersey Site Remediation Reform Act ("SRRA"). Several of the key developments and their anticipated impacts are described below.

Transition to LSRP Oversight. Enacted in May 2009, the centerpiece of SRRA, the new licensed site remediation professional ("LSRP") program, will be entering the final transition stages to replace NJDEP oversight with LSRP oversight for all cases, which by law must occur by May 2012. Therefore, parties with existing cases which have not yet opted-in to the LSRP program have some critical planning issues facing them in 2011 year concerning whether and when to opt-in and who to retain as their LSRP. A few of our clients have opted-in to the program with their existing cases, however, a large number have delayed doing so pending the further development of the requirements for LSRP licensing and the substantive changes to the remediation process. Time is running out.

LSRP Licensing. Approximately 435 temporary LSRP licenses have been issued by NJDEP, which had expected to have issued approximately 1000 licenses by now; however, the number of applications was far fewer than expected. Whether this will increase in 2011 and whether this lesser number of LSRPs will be able to handle the workload as cases opt-in to the LSRP program prior to May 2012 remains to be seen.

The LSRP Board, the body established by SRRA to regulate LSRP licensing and conduct, held its initial meetings in late 2010 and is expected to be developing regulations to govern its activities during 2011. For parties performing remediations, the Board's activities bear close watching as they begin to set up the processes under which the Board will oversee LSRP conduct, including the handling of complaints and license suspension and revocation.

In addition to these regulations, high on the list of the Board’s activities will be the development and administration of an LSRP licensing exam which all applicants for the final LSRP licenses to be issued by the Board (to replace the temporary licenses being issued by NJDEP while the Board is set up), will be subject to. The exam will be prepared by a contractor and is expected to be in place by the beginning of 2012. This process will create an additional hurdle for consultants considering LSRP status and may further affect the number of LSRPs available to handle new and existing cases as the latter opt-in to the program.

New Regulations and Guidance. On the NJDEP regulatory front, the agency will be proposing new regulations to replace the interim regulations adopted under SRRA in November of 2009 which are scheduled to expire in May 2011. The interim regulations repealed the site remediation program’s oversight rules and adopted a new set of Administrative Requirements for the Remediation of Contaminated Sites ("ARRCS") and revisions to the Technical Requirements for Remediation of Contaminated Sites ("Tech Regs"), the Industrial Site Recovery Act ("ISRA") regulations, the Underground Storage Tank ("UST") regulations and the remediation standards to make those regulations consistent with the new requirements of SRRA. Many draft guidance documents were also released to address program implementation.

NJDEP recently released drafts of its proposed changes to the ARRCS, ISRA and UST rules for stakeholder comment prior to developing a rule proposal. The Tech Reg revisions are still being drafted, with input from a stakeholder group, and are expected to make major modifications in the Tech Regs to make them performance based, remove the detailed prescriptive procedural elements and move the focus to the exercise of professional judgment by LSRPs. Many new guidance documents are being developed and draft guidance updated to provide additional information on how to meet the performance objectives. The proposed regulations and the guidance documents are expected to be made available during the first half of 2011 and final regulations are expected to be in place by May 2012.

These regulatory changes and guidance documents will address topics including groundwater and soil remediation, vapor intrusion (a major modification of the 2005 vapor intrusion guidance document is in the works), remedial action permits, historic fill and diffuse anthropogenic background, ecological evaluation, immediate environmental concerns, free product, clean fill and presumptive remedies. They will provide the substantive requirements under which the LSRP program will operate and will likely transform the process and standards applicable to site remediations in New Jersey. We will continue to follow their progress and provide periodic update reports during the course of the year.