NJDEP Commissioners Testify on Proposed Site Remediation Reforms

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

On April 15, 2008, New Jersey Department of Environmental Protection ("NJDEP") commissioner Lisa Jackson and assistant commissioner for site remediation Irene Kropp testified before a joint session of the Senate and Assembly Environment Committees on the agency's legislative proposals to reform the Site Remediation Program. The proposals, an outgrowth of a stakeholder process initiated by NJDEP in early 2007, address a wide range of reforms aimed primarily at streamlining the case review process and buttressing the level of protection of cleanups at more sensitive sites (e.g., day-care, school, and residential properties). The proposed reforms include the following:

  • a licensed site professional program whereby private consultants licensed by NJDEP would assume more responsibility for completing site remediation cases, and low-risk cases would be subject to less-intensive oversight by NJDEP to expedite case review;
  • new restrictions on remedy selection that would give NJDEP the ability to disapprove or select remedies, particularly when it comes to day-care, school, and residential properties;
  • requirements for developers to notify the municipality when developing a former industrial property for day-care, school, or residential use;
  • mechanisms to provide greater finality to parties that implement permanent remedies;
  • elimination of liability for innocent purchasers for off-site contamination;
  • establishment of a permitting system for the biennial certification process for engineering and institutional controls;
  • tightening the remediation funding source financial assurance requirements applicable to Industrial Site Recovery Act cleanups and those undertaken pursuant to enforcement orders;
  • establishment of a state-funded dry-cleaner remediation program; and
  • prohibition of new or replacement residential heating oil underground storage tanks.

In their announced form, the proposed reforms leave many unanswered questions. Indeed, before the proposed reforms can even take effect, legislation will have to be developed and the devil will likely be in the details. Regardless of the outcome of the process, whether the reforms will achieve the proffered efficiencies in the case review process or stifle brownfield redevelopment are questions to which we may not have answers for some time.