Major Legislative Changes in Store for NJDEP's Site Remediation Program

January 8, 2009
by CHRISTOPHER BALL
Client Alert Newsletter Forecast 2009

Driven primarily by the objective of reducing the New Jersey Department of Environmental Protection's ("NJDEP's") fabled site remediation program ("SRP") case backlog, the New Jersey Senate Environment Committee is considering proposed legislation to create a licensed site remediation professional ("LSRP") program. If enacted, an LSRP program could partially privatize a large part of NJDEP's SRP activities.

Various forms of the LSRP program have been proposed for consideration by the Senate Environment Committee, with a consistent theme being the requirement that all cleanups use an LSRP, who, in turn, would be subject to a code of conduct and potentially onerous enforcement provisions implemented by a Licensed Site Remediation Professional Board ("LSRP Board"). LSRPs would oversee most cleanups (subject to limited NJDEP review authority), although a defined category of cases would still be subject to full direct NJDEP oversight. No Further Action letters would be replaced by Response Action Outcome determinations issued by LSRPs. Bills proposed to-date have also introduced a number of other SRP reforms, including provisions expanding NJDEP's authority over remedy selection, requiring NJDEP to set mandatory timeframes for initiating and completing remedial activities, and extending the statute of limitations for natural resource damage claims. Revisions that would have imposed new financial assurance requirements in earlier versions of the bill look like they may be greatly scaled back.

If enacted, these changes are likely to have a significant impact on how site remediation cases are processed, the cost of consultants and cleanups, and the available range of cleanup strategies at many sites. As of the date of publication of this 2009 Client Alert Forecast edition, the proposed LSRP bill remains subject to significant change, with central issues such as the composition of the LSRP Board, the set of standards that the LSRPs must apply to cleanups, the maximum penalties under the program, and remedy selection at residential and school sites all in flux. Manko, Gold, Katcher & Fox is closely following these issues and the progress of the proposed bills and will report on the final bill once enacted. For more information on specifics of the proposed LSRP program, clients may contact Bruce Katcher at bkatcher@mgkflaw.com or 484-430-5700.