Changes in Store for Site Remediation Program and SRRA?

January 18, 2018
Bruce S. Katcher, Esq.
MGKF Special Alert - Forecast 2018

While it is unclear whether the new administration will make significant changes in the site remediation regulatory program, it seems likely that an effort to amend the Site Remediation Reform Act (SRRA) will at least begin in 2018.   Now that over eight years have passed since the statute was enacted in 2009, it is obvious that the statute is in need of fine tuning.  Examples of issues that could be addressed in that process include the following:

  1. Remedial Action Permits: Improvements to the remedial action permit process to

    a.  Clarify that the process should not be used by NJDEP as a substitute for remedy review but instead only to review the post-remedy monitoring and maintenance program,

    b.  Eliminate the requirement that an owner that acquired a property after a discharge occurs and implements a remediation must remain a permittee indefinitely and have permittee status eliminated after it sells the property, and

    c.  Authorize the issuance of permits by rule and general permits based on LSRP certification that would eliminate the extensive delays in NJDEP permit issuance that are created under the current system of individual permits.

  2. Financial Assurance: Reform the options for financial assurance for engineering controls to allow self-guarantees and surety bonds (including with respect to remediation funding sources under the Industrial Site Recovery Act as to the latter) and reduce the term of financial assurance mechanisms, with allowance for renewal as appropriate.

  3. Direct Oversight: Creation of a process to terminate direct oversight for cases where parties proceed in good faith to correct a deficiency that caused them to be in direct oversight and to expand the litigation settlement carve out to include matters settled administratively by consent order. 
  4. Liability Reform: Provide more clarity as to and expand liability relief for innocent purchasers (e.g., see the bona fide prospective purchaser relief available under federal Superfund law) and volunteers.

  5. Historic pesticides/historic fill: The status of these conditions and when they require remediation is in need of clarification and greater flexibility than what is provided under existing law.

On the regulatory/guidance side, issues that may be in line for attention include the following:

  1. Reform of the agency’s fill guidance to enable the use of alternate fill above the floodplain and relax the “like-on-like” limitation in appropriate circumstances

  2. Clarification of situations in which LSRP’s must evaluate so-called “contaminants of emerging concern” and what standards to apply in addressing the remediation of such contaminants (see the article elsewhere in tis Forecast for further information on the issue of emerging contaminants).

  3. Application of the agency’s direct oversight enforcement policy as more and more sites run afoul of missing deadlines and falling into “mandatory” direct oversight

  4. Finalization of the agency’s rule proposal to specify the remediation requirements for discharges from “unregulated heating oil tanks”.

Re-examination of recent changes to soil and groundwater remediation standards and updating of default values for soil impact to groundwater standards.