New Jersey Site Remediation Reform Legislation Introduced

August 16, 2008
by BRUCE KATCHER
Client Alert Newsletter August 2008

By the end of 2008, the New Jersey contaminated property remediation program could be transformed under a bill introduced in the state legislature on June 5. Aimed at expediting the program, the bill proposes to significantly increase the degree of environmental consultant responsibility and generally reduce the degree of New Jersey Department of Environmental Protection ("NJDEP") oversight. The bill also proposes to modify remedy selection and financial responsibility requirements applicable under the current program.

Most important would be a new program to license environmental consultants—referred to as licensed site professionals ("LSPs")— including educational, training, experiential and insurance requirements, and an examination to certify qualifications. LSPs would be bound by a strict code of conduct and all submissions to NJDEP would have to be LSP-signed and certified. Non-compliance could result in penalties or license revocation.

Cases would be divided into four tiers, with varying degrees of NJDEP oversight. For most cases, the degree of agency oversight would be greatly reduced, with LSPs bearing primary responsibility for ensuring the completion of cases, although NDJEP would always retain the final authority to issue no further action letters to close out any case. NJDEP would also retain authority to select remedies for sites falling in the tier with greatest NJDEP oversight (cases with a history of significant non-compliance or delay) and private party remedy selection would be limited for all sites involving reuses for residential, child-care or school purposes.

In addition, the remediation funding source financial assurance requirement that currently applies to cases under the Industrial Site Recovery Act would be extended to cases under the voluntary cleanup program, thereby adding a new expense to the latter cases. The ability of companies to "self-guarantee" would also be severely restricted.