On August 15, 2011, the New Jersey Department of Environmental Protection (NJDEP) issued proposed Final Rules to implement the Site Remediation Reform Act (SRRA) adopted in May 2009. These rules are intended to be the final implementation step in the phased transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by Licensed Site Remediation Professionals (LSRPs). Instead of NJDEP overseeing every step of a cleanup, the LSRP, licensed by a 13-member Licensed Site Remediation Professional Board with investigative and disciplinary powers, is responsible for making day-to-day decisions about a clean-up. Certain categories of cleanups remain under NJDEP oversight, such as where the responsible party has a history of non-compliance or has failed to meet mandatory deadlines. The rule proposal appeared in the New Jersey Register on August 15, 2011 and can be viewed online. Comments can be submitted until October 14, 2011.

The proposal includes major amendments, repeals and new rules intended to fully implement the new LSRP oversight remediation paradigm. The proposed Final Rules provide for the following:

  • Amending the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) rules, the Underground Storage Tank (UST) rules and the Industrial Site Remediation Act (ISRA) Rules to remove all provisions related to the phase-in period;
  • Recodifying all administrative requirements from the ISRA Rules and UST rules to the ARRCS rules;
  • Adding mandatory timeframes for completion of remedial investigation and implementation of remedial action;
  • Repealing and replacing the current Technical Requirements with new performance-based Technical Requirements, intended to allow more flexibility in addressing contamination and potential exposure pathways. Many of the existing Technical Requirements will be recast as a new series of technical guidance documents providing direction on how to achieve the performance-based goals;
  • Amending the Discharges of Petroleum and Other Hazardous Substances rules to require compliance with both a facility’s discharge cleanup and removal plan and the ARRCs rules; and 
  • Reformatting text where needed to make the rules easier to understand, to correct typographical and grammatical errors, and to update cross-references.

According to NJDEP Commissioner Bob Martin,

It is a priority of the Christie Administration to clean the more than 16,000 contaminated sites across the State. This is an important step to help us more quickly and efficiently achieve that important goal. It will benefit public health and the environment, and will make underutilized properties available more quickly for redevelopment, benefiting economic growth.

The proposed rules were developed with the input of interested stakeholders. A public hearing on the proposed rules is scheduled for September 13 at 9 am in the first floor public hearing room at the DEP building, 401 East State Street, Trenton. NJDEP will accept written comments until October 14, addressed to Janis Hoagland, NJDEP, Office of Legal Affairs, Mail Code 401-041L, PO Box 402, 401 East State Street, 4th Floor, Trenton, NJ 08625-0402, ATTN: DEP Docket No. 12-11-07. The transition of New Jersey’s site remediation process from NJDEP command and control to private oversight by LSRPs presents complex issues for the department and the regulated community. Thus it is important for the regulated community to analyze the proposed rules and take advantage of NJDEP’s efforts to respond to stakeholder comments.

Susanne Peticolas is a Director in the Gibbons Real Property & Environmental Department.