As might be expected, practical implementation of SRRA immediately brought into view some of its flaws.

Ten years after its initial rollout in May 2009, the Site Remediation Reform Act (SRRA) has been given a tuneup. On August 23, 2019, New Jersey Governor Phil Murphy signed into law an act known colloquially as SRRA 2.0. When initially adopted in 2009, SRRA was intended to help streamline site remediation by shifting significant portions of traditional oversight of site cleanup work from the New Jersey Department of Environmental Protection (NJDEP) to newly authorized Licensed Site Remediation Professionals (LSRPs). These professionals would facilitate cleanups by the exercise of their professional judgment, subject to NJDEP rules, regulations and guidance, including mandatory and regulatory deadlines, presumptive remedies and an overarching duty of care to human health and the environment.

As might be expected, practical implementation of SRRA immediately brought into view some of its flaws. In response, its original sponsors and others who had worked to bring SRRA into being launched a stakeholder initiative to identify areas needed for change based upon lessons learned. At the end of that initiative, we have SRRA 2.0, which, like its predecessor, changes a host of New Jersey environmental statutes, including the Industrial Site Recovery Act, the Spill Compensation and Control Act and the Brownfield and Contaminated Site Remediation Act. It avoids any major overhaul of the existing program (although various stakeholders looked for such changes) but even still, some of the changes have significant implications for persons responsible for conducting remediation (PRCRs) and the LSRPs they retain.

Here are some highlights:

Public Outreach

• PRCRs will be required to involve municipalities and county or local health agencies at an earlier point in the remediation process. Under SRRA, that point was prior to initiation of the remedial action. Under SRRA 2.0, written notice must be given prior to initiation of remedial investigation.
• The notice must also advise that the municipality and/or county/local health agency has a right to request any work plan, report or validated data that NJDEP requires under relevant environmental laws (prior law required only the remedial action work plan).
• PRCRs (itself or through its LSRP) must to respond to written (including email) public inquiries regarding the status of remediation by providing either “information or documents that are responsive” or a “written status report for the remediation in a form and manner to be prescribed by” NJDEP.
• Biennial public notification reports to surrounding property occupants, made at the PRCR’s discretion via posting a sign at the site or written notice and fact sheet, can now be required by NJDEP to include both forms of notice.

Expanded Definition of Immediate Environmental Concerns (IECs)

• IECs, which generally relate to specified conditions deemed to give rise to an immediate threat to human health or the environment, could potentially expand obligations in the vapor intrusion setting. Thus, migration of contamination into a structure would now be identified as an IEC regardless of whether the structure is occupied, used or able to be used for human occupancy unless the PRRC provides written certification to the NJDEP that the structure is not occupied, will not be occupied and will be demolished.

Expanded LSRP Reporting Obligations

• An LSRP that obtains “specific knowledge” of an IEC must provide verbal advice and written confirmation to the PRCR (provided such person is known to the LSRP) and of the PRCR’s duty to notify NJDEP of the condition. This obligation may be construed to apply regardless of whether the IEC occurs at the site for which the LSRP is retained. Moreover, given the expanded definition of an IEC, the reporting obligation could now be construed to extend to unoccupied structures.
• An LSRP that obtains “specific knowledge” of a discharge at any portion of the site at which he or she has been retained must notify the PRCR and NJDEP of the discharge even if the LSRP is retained in connection with an unrelated portion of the site.

LSRP Oversight Required

• Subject to certain exceptions, persons who are not qualified as LSRPs may not perform remediation unless the remediation is managed, supervised or periodically reviewed and evaluated by an LSRP. Exceptions include (i) remediation of an unregulated heating oil tank; (ii) persons who do not own and have not discharged at the contaminated site who conduct preliminary assessment or site investigation to satisfy “all appropriate inquiry” in prior use and ownership (i.e., the prospective purchaser); (iii) sampling or investigation to evaluate remediation performed by an LSRP in certain circumstances.
• Concomitantly, and subject to the noted exceptions, an LSRP shall not facilitate, aid, assist or cooperate with any person in retaining a person not qualified as an LSRP unless the LSRP provides the requisite management, supervision or periodic review or evaluation. Further, the LSRP is prohibited from such management or supervision unless he or she has been specifically retained and NJDEP notified of the retention unless there is another LSRP in that role.

Relief from Direct Oversight by NJDEP?

• Various changes to the direct oversight provisions (i.e., cases where NJDEP assumes control of the remediation) were inserted largely to codify historic practices by NJDEP, including the position that once a site is placed into direct oversight that condition will “run with the land.” There is potential relief for parties who can demonstrate financial hardship if delay resulted from a public emergency, or if it is in the public interest to do so.
• Relief for prospective purchasers is also available if such parties are willing to enter into an administrative consent order with NJDEP that would, in exchange for some form of negotiated performance obligation, relieve some or all of the direct oversight requirements.

Remediation Funding Sources

• Various clarifications have been made to the remediation funding source provisions, largely to codify existing practices, but the new rule allows for the use of a surety bond as an approved remediation funding source mechanisms.

The changes to the law take effect immediately. So, expect a few bumps along the way as parties move to integrate the changes into existing cases.

For Further Information

If you have any questions about this Alert, please contact Lori A. Mills, any of the attorneys in our Environmental Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.