NJ Site Remediation Program Reform Activity Moves Forward

May 16, 2007
by BRUCE KATCHER
Client Alert Newsletter May 2007

Several important recent developments have affected the reform of the New Jersey Department of Environmental Protection's ("NJDEP's") Site Remediation Program ("SRP"). First, NJDEP has formed a stakeholders group to develop recommendations to the legislature to reform the SRP. Topics addressed so far include caseload and work relief options, remedy selection and engineering controls, municipal issues and insurance. Second, bills have been introduced addressing many of the same issues, including (1) Bill A3904, proposing establishment of a board under NJDEP to license site remediation professionals authorized to oversee remediation of lower priority sites and whose certification that the sites have been properly remediated would form the basis for NJDEP to issue a No Further Action ("NFA") letter; (2) Bill A4015, proposing establishment of a licensing board and the use of licensees by all responsible parties; and (3) Bill A3906, proposing to grant NJDEP authority to select the remedy for any property to be used for residential or educational purposes, which selection is currently at the discretion of the remediator. Third, an internal SRP reorganization is planned for July, which would include many SRP senior managers switching responsibilities, the transfer of the Division of Solid and Hazardous Waste Management from Irene Krop (Assistant Commissioner for Site Remediation and Waste Management) to Nancy Wittenberg (Assistant Commissioner for Environmental Regulation), and expansion of the Office of Brownfields Reuse to handle more brownfields projects.

In addition, several internal SRP reforms are already being implemented. For example, responsible parties are no longer permitted to use a Memorandum of Agreement ("MOA") as the oversight document to remediate a site. Rather, they are required to use an administrative consent order, with MOAs reserved for innocent parties, e.g., brownfields developers. In addition, NFAs are being withheld from parties delinquent in paying oversight costs.