New Jersey Legislature Seeking to Overhaul Site Remediation Reform Act

New Jersey Legislature Seeking to Overhaul Site Remediation Reform Act

The New Jersey Legislature is advancing legislation that would amend the state’s Site Remediation Reform Act (SRRA). The bill, dubbed SRRA 2.0, aims to incorporate lessons learned since the environmental law was enacted a decade ago.

Site Remediation Reform Act­­

The SRRA, enacted in 2009, established the Licensed Site Remediation Professional (LSRP) program. It also altered the process of how contaminated sites are remediated in New Jersey, shifting the day-to-day oversight of site remediation to LSRPs.

The SRRA also established an affirmative obligation for persons to remediate any discharge for which they would be liable pursuant to the Spill Compensation and Control Act. The statute also created mandatory remediation timeframes for the completion of key phases of site remediation.

Proposed Amendments to SRRA

The legislation, Senate Bill 3683/Assembly Bill 5293, would make several amendments to the SRRA, both with respect to the remediation of contaminated sites and the oversight of LSRPs. Below are several of the most significant changes:

• Actions Against LSRPs: In any action for damages for personal injuries, wrongful death, or property damage resulting from an alleged act of malpractice or negligence by an LSRP, a plaintiff must provide each defendant with an affidavit of merit. If a plaintiff fails to file an affidavit of merit, the case would be dismissed for failure to state a cause of action.
• Remediation Funding: The bill makes several changes to laws governing the establishment of remediation funding sources, including when and how those remediation funding sources may be used, dispersed, and released. Notably, the legislation provides that a person may establish a surety bond from an entity that is listed as an acceptable surety on federal bonds in the United States Treasury Department Circular 570.
• Green Practices: The bill requires the New Jersey Department of Environmental Protection (DEP) to encourage the use of green and sustainable practices during the remediation of a contaminated site. The use of green and sustainable practices would not alter the requirement that the remediation be protective of the public health and safety and of the environment.
• Responding to Public Inquiries: The bill requires a person responsible for conducting a remediation to respond to any inquiries from the public regarding the status of the remediation that the person receives or that the DEP receives and forwards to that person. Under the bill, the person’s response must include either: (1) information or documents that are responsive to the public inquiry; or (2) a written summary status report for the remediation in a form and manner as determined by the DEP. A person responsible for conducting a remediation would be permitted to designate an LSRP to respond to public inquiries.
• Reporting Discharges: The bill provides that if an LSRP who is retained to perform remediation at a site or any portion of a site obtains specific knowledge that a discharge has occurred at any location on the site, the LSRP must notify the person responsible for conducting the remediation and the NJDEP.
• NJDEP Direct Oversight: The bill amends the SRRA’s direct oversight provisions. It provides that if a person responsible for conducting a remediation fails to meet certain conditions, 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 timeframe 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 timeframe due to the performance of additional review by the DEP. The legislation also 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 timeframe or other condition that triggered direct oversight. The NJDEP would also be authorized to 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.

What’s Next?

The Assembly Environment and Solid Waste Committee advanced Assembly Bill 5293 on June 10, 2019. In the Senate, the bill is pending before the Senate Environment and Energy Committee. The attorneys of the Scarinci Hollenbeck Environmental & Land Use Law Group will continue to track its status and post updates.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, John Scagnelli, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.