Significant NJ Site Remediation Program Reforms Likely

January 16, 2008
by BRUCE KATCHER
Client Alert Newsletter Forecast 2008

New Jersey's Site Remediation Program ("SRP"), under attack by both industry and environmental groups, will likely be the subject of legislative and regulatory initiatives in 2008. The legislative initiatives will grow out of the SRP stakeholder process initiated in February 2007 by New Jersey Department of Environmental Protection ("NJDEP") Commissioner Lisa Jackson to make recommendations to the legislature on needed reforms in the program. This process, involving a series of meetings among stakeholders selected to provide a wide range of viewpoints on the SRP, resulted in the generation in late 2007 of draft white papers prepared by NJDEP staff and responses prepared by various stakeholder groups. Topics included (1) case backlogs, (2) remedy selection, (3) engineering and institutional controls, (4) acute exposure and hot spot removal, (5) environmental insurance, (6) performance vs. prescriptive-based remediations, (7) public notification and participation, (8) pesticides, (9) dry cleaners, (10) municipal issues, and (11) cumulative exposure. Many of these topics are likely to be the subject of legislative reforms this year as both legislative committees have promised to address stakeholder concerns.

While the stakeholder process was underway, NJDEP was also busy proposing several key regulatory changes in 2007 that will be adopted this year. First, in May 2007, NJDEP proposed to adopt soil cleanup standards ("SCS"). The SCS would replace the SRP's soil cleanup criteria ("SCC") and in many instances would be more stringent than the SCC. Final adoption is expected by this May. If adopted in anything like their proposed form, cleanup of soils in New Jersey, particularly soils contaminated with chlorinated solvents, could become much more expensive. Second, in August 2007, NJDEP proposed new SRP regulations governing public notice and outreach in response to new legislation enacted earlier in the year. The proposal provides for posting signs or sending public notifications, notifying municipal officials, identifying nearby sensitive populations and providing enhanced outreach where contamination has migrated beyond the property boundary or where a municipal or citizen petition evidences substantial public interest. These regulations should be adopted before the summer.

Finally, as a consequence of new regulations proposed under the solid waste management program in January 2008, the management of fill material in New Jersey may undergo change in the coming year. Under this proposal, NJDEP intends to clarify that "clean fill" is limited to "uncontaminated" material (i.e., below applicable remediation standards) that has not been affected by a release under the Spill Compensation and Control Act. How this definition will interact with applicable SRP soil reuse requirements, and whether it will result in greater limitations on the use of fill material in the coming year, are issues that bear close scrutiny particularly by the development community.