In the next few weeks, responsible parties for some 12,000 known contaminated sites in New Jersey will be receiving a letter with a draft Remedial Priority Score (RPS) for their particular site compliments of the New Jersey Department of Environmental Protection (NJDEP). The NJDEP has not specified how the rankings will be used, although the RPS system has been described by the NJDEP as “a triage tool to sort sites for further consideration.”
Under the Site Remediation Reform Act (SRRA), N.J.S.A. 58:10C-1 et seq., passed in May 2009, the NJDEP is required to establish a ranking system for active remediation sites based on risk to public health, safety and the environment, the length of time the site has been undergoing cleanup, economic impact, and other relevant factors. To that end, NJDEP designed the Remedial Priority Scoring system which uses modeling assumptions on data gathered from a number of databases on the 12,000 known contaminated sites. Certain sites are excluded from the RPS process, including homeowner sites, sites undergoing operations and maintenance monitoring, and unknown source cases.
The computerized process attempts to provide relative rankings of active sites using selected data from the Geographic Information System (GIS) tools, multiple geographic databases and layers, the New Jersey Environmental Management System (NJEMS), the Known Contaminated Sites (KCS) report, and groundwater sampling data. Ongoing development of the model will eventually incorporate contaminated soil data and corresponding pathways. All sites will receive a tiered ranking between one and five, with tier five representing the highest contamination risk.
The RPS system attempts to minimize subjective human interpretations and anecdotal data, and thus, the final score is only as reliable as the data upon which the model is based. Score accuracy thus depends on the quality and quantity of the available data. Responsible parties can take action to improve a score by submitting additional information. For example, “closed” pathways between the source of contamination and receptors, institutional and engineering controls, and the absence of an impact to groundwater all act to reduce the cumulative risk of a site. Responsible parties will have sixty (60) days to challenge the ranking by submitting new information or an explanation of why the proposed ranking is inaccurate or fails to account for certain data.
While it is not clear what use NJDEP will make of these rankings, one can be sure that creative lawyers will be analyzing potential uses for them particularly in the area of toxic torts, environmental cost recovery cases and property transfers. Responsible parties should be on the look out for these draft RPS rank letters and analyze them carefully.
Susanne Peticolas is a Director in the Gibbons Real Property & Environmental Department. Brett S. Theisen, an Associate in the Gibbons Financial Restructuring & Creditors' Rights Department, assisted in the preparation of this post.