In May of 2009, Governor John Corzine signed the Site Remediation Reform Act ("SRRA") into law, enacting sweeping changes to New Jersey's site remediation program. The Act created the Licensed Site Remediation Professionals ("LSRP") Program and imposed strict reporting requirements and an affirmative obligation to remediate contaminated sites.
On the 10-year anniversary of SRRA, the New Jersey legislature has sought to implement changes to site remediation laws and regulations based on a decade of practical experience. Parallel bills (A5293/S3682) moved swiftly through the legislature and were approved, nearly unanimously, by each legislative body. On Friday, August 23, 2019, Governor Phil Murphy signed the bill into law, codifying what has colloquially become known as "SRRA 2.0."
The new law makes several changes to the current regulatory framework that will affect developers and municipalities seeking to remediate contaminated sites in the State. Impacts of the new law include: (1) changes to the definition of and requirements applicable to "immediate environmental concerns;" (2) enhancing LSRP supervision and disclosure requirements; and (3) codifying changes to the New Jersey Department of Environmental Protection's ("DEP") Direct Oversight ("DO") program.
First, the new law changes the definition of "immediate environmental concern" to relax remediation requirements if structures on the contaminated land will ultimately be razed. The previous definition of "immediate environmental concern" included "confirmed environmental contamination that has migrated into an occupied structure. . . ." The new law inserts language regarding human occupancy in order to bring the requirement more in line with its purpose—protecting against imminent threats to human health. The new definition of "immediate environmental concern" includes "confirmed contamination that has migrated into a structure currently used or able to be used for human occupancy. . . ." This change means that "immediate environmental concerns" which affect an unoccupied structure would not require further remediation if "the person responsible for conducting the remediation provides to the [DEP] a written certification from the property owner that the building (i) is not occupied, (ii) will not be occupied, and (iii) will be demolished. . . ."
The new law also clarifies responsibilities for LSRPs. Under the old law, LSRPs were required to verbally advise the person responsible for conducting remediation ("PRCR") to contact DEP when the LSRP becomes aware that a site condition falls under the category of "immediate environmental concern." The new law requires that LSRPs also notify the PRCR in writing of its duty to report to DEP. Additionally, when an LSRP has been retained to remediate and "obtains specific knowledge" of a discharge at the site, the LSRP would be required to notify the PRCR and DEP of the condition. The new law also sets forth formal requirements for parties seeking to bring malpractice actions against LSRPs. The complainant is now required to provide an Affidavit of Merit stating that the LSRP did not meet the ordinary standard of care. Plaintiffs who fail to provide this affidavit will have their actions dismissed.
Additionally, the new law codifies changes to the Direct Oversight program, which requires DEP supervision and mandates that the PRCR posts funding for sites that have failed to meet statutory remediation deadlines. The new law reinforces that Direct Oversight requirements should "run with the site" regardless of whether there is a transfer of property ownership. The law does, however, provide a mechanism for DEP to modify Direct Oversight requirements to allow for a site to be removed from the program if: (1) the PRCR can demonstrate financial hardship induced by Direct Oversight requirements; or (2) a public emergency has been declared at the State or federal level that resulted in the delay that triggered DO. Moreover, the law allows DEP to exempt a site from the Direct Oversight program if the PRCR can demonstrate, to the DEP's satisfaction, that: (1) the PRCR missed deadlines because it could not enter the site due to ownership issues, despite having made all appropriate attempts to do so; or (2) the site is subject to federal oversight and the PRCR was unable to meet the timeframe due to DEP's additional review of timely submitted documents. The DEP would also be able to enter into Administrative Consent Orders with prospective purchasers of contaminated sites that allow for modification of Direct Oversight requirements.
Parker McCay's attorneys have experience advising our clients on site remediation matters. If you have questions regarding how the new site remediation requirements affect you, please contact our Environmental Department.
The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.