BY AGNES ANTONIAN, ESQ., AND CHRISTINA SARTORIO KU, ESQ., CONNELL FOLEY LLP
GOVERNOR PHIL Murphy recently signed legislation amending the Site Remediation Reform Act (SRRA), the law created a decade ago to govern the remediation of contaminated sites in New Jersey through the creation of the Licensed Site Remediation Professional (LSRP) program. The revisions, known as “SRRA 2.0,” are intended to improve the process and policies of the SRRA, thereby streamlining the number of sites that can be remediated.
After almost two years of evaluation, on June 20, 2019, the New Jersey Legislature passed the revisions to SRRA set forth in Senate bill S3682 and Assembly bill A5293. The following is a summary of some of the notable changes affected by SRRA 2.0:
Natural Resource Damages
● The definition of “remediation” is revised to exclude the payment of compensation for damage to or loss of natural resources.
Remediation Funding Sources
● A new mechanism for remediation funding sources has been added: surety bonds. Property owners may now use surety bonds from an entity that is listed as an acceptable surety on federal bonds in the United States Treasury Depart-ment Circular 570 to fund financial assurance obligations.
Green and Sustainable Practices
● SRRA 2.0 encourages the use of green and sustainable practices during the remediation of a contaminated site. The use of these practices does not alter the requirement that the remediation be protective of public health and the safety of the environment.
Public Notice and Public Inquiry Requirements
● Notice is now required to municipalities, county health departments, and local health agencies prior to the initiation of the remedial investigation, rather than prior to the remedial action.
● In response to public inquiries, written or e-mail, the person responsible for conducting a remediation shall provide either responsive information or documents or a written summary status report of the remediation. An LSRP may be designated to respond to these public inquiries.
Immediate Environmental Concerns
● The definition of “immediate environmental concern” is broadened to include unoccupied structures if able to be used for human occupancy. It also clarifies that “immediate environmental concern” includes confirmed contamination rather than simply conditions that pose an immediate threat to the environment or to public health or safety.
● If an unoccupied structure is determined to be an immediate environmental concern, and if the property owner submits a written certification that the building is not occupied, will not be occupied and will be demolished, no further remediation is required.
Definition of “Retained”
● SRRA 2.0 includes a new definition for the term “retained,” which means “hired, individually or through a firm or other person, by or on behalf of a person responsible for conducting remediation, to perform, manage or supervise remediation or to periodically review and evaluate a remediation performed by other persons.” The amendment also replaces the term “hired” with “retained” throughout.
LSRP Requirements and Responsibilities
● A number of changes were also made to required LSRP credentials: (a) at least three years of full-time professional experience shall have occurred in New Jersey within five years prior to submission of the application; (b) excludes those who have been convicted of or pled guilty to crimes involving breach of trust, that would qualify the person for registration under section 2 of P.L. 1994, c. 113, or any other crime involving moral turpitude; and (c) excludes those who have had a professional certification revoked or have surrendered a professional license or professional certification in response to a disciplinary investigation within the previous 10 years.
● The amendment provides that a person who is not an LSRP shall not perform remediation unless the remediation is managed, supervised, or periodically reviewed and evaluated by an LSRP. The LSRP can only manage, supervise, perform, engage or participate in the remediation if (1) the LSRP was retained by a person responsible for conducting the remediation and (2) the New Jersey Department of Environmental Protection (NJDEP) was notified.
● SRRA 2.0 requires that an LSRP only certify a document submitted to the NJDEP if the LSRP believes that the information is true, accurate and complete. It indicates that an LSRP shall not knowingly make any false statement, representation or certification in any document or information requirement to be submitted to the New Jersey Site Remediation Professional Licensing Board or the NJDEP.
LSRP Notice Requirements
● The amendment clarifies that should the LSRP obtain specific knowledge of an immediate environmental concern and provided the LSRP knows the person responsible for conducting the remediation, the LSRP must inform that person of his/her duty to notify the NJDEP of the condition.
● Previously, an LSRP was only required to give notice of a discharge if he/she had specific knowledge that a discharge occurred on the portion of the site for which he/she was responsible. SRRA 2.0 requires an LSRP retained to perform remediation on any portion of a site to give this notice if he/she knows of a discharge at any location on the site.
Remedial Action Permit
● The person to whom a remedial action permit is issued must retain an LSRP to oversee permit responsibilities.
NJDEP Direct Oversight
● If a person responsible for conducting a remediation fails to meet certain conditions, under SRRA 2.0 the NJDEP would not undertake direct oversight of the contaminated site if the person demonstrates, and the agency finds, that: (1) the person was unable to meet the applicable time frame because the person was unable to enter the contaminated site because the person does not own the property, and the person took all appropriate and timely action to gain access to the site; or (2) the contaminated site is subject to federal oversight, the person has made timely submissions to the NJDEP, and the person was unable to meet the applicable time frame due to the performance of additional review by the NJDEP.
● It also clarifies that the requirement of direct oversight runs with the site, regardless of who owns the property or whether there was a transfer of ownership.
● SRRA 2.0 authorizes the NJDEP to modify direct oversight requirements if: (1) the person responsible for conducting the remediation demonstrates financial hardship that prevents the performance of the remediation due to the imposition of direct oversight; or (2) there is a public emergency, as declared by the state or federal government, that resulted in a delay in meeting the mandatory or expedited site-specific time frame or other condition that triggered direct oversight. The NJDEP can also modify the requirements of direct oversight if it makes a written determination that the modification is in the public interest and protective of the public health and safety and the environment.
These changes, including additional obligations and duties on behalf of LSRPs, will impact companies required to investigate and/or remediate contaminated properties in New Jersey.