Cause for Concern? NJDEP to Score Contaminated Sites Under the Remedial Priority Scoring System

The New Jersey Department of Environmental Protection (“NJDEP”) will soon release scores for contaminated properties pursuant to the Remedial Priority Scoring (“RPS”) system. The RPS system was mandated by the Spill Compensation and Control Act (N.J.S.A. 58:10-23.16) as amended by the Site Remediation Reform Act (“SRRA”).

Under the statute, the factors that NJDEP may consider in ranking the sites include:

• the level of risk to the public health, safety, or the environment;
• the length of time the site has been undergoing remediation;
• the economic impact of the contaminated site on the municipality and on surrounding property; and
• any other factors deemed relevant by the NJDEP.

The RPS system is a computerized modeling system designed to help the Department to categorize sites based on potential risk to public health, safety or the environment. The RPS model utilizes a variety of information, including ground water, soil, and vapor intrusion, sampling data to determine a site score. Once the RPS score is determined, the site is catalogued for relative ranking against sites with similar scores and assigned a specific category number from 1 through 5. Category 1 represents the lowest score (least potential risk to public health) and Category 5 represents the highest score (greatest potential risk to public health).

Should the RPS scores trouble remediating parties? On the one hand, the Department states that it will use the RPS system simply to assist it in allocating its Site Remediation Program resources and that categories represent potential risk and are not indicative of compliance. On the other hand, NJDEP admits that the RPS system is a tool to help it evaluate if direct oversight of remediation activity by the NJDEP is warranted now that the typical remediation will be overseen by a private Licensed Site Remediation Professional. Indeed, N.J.S.A. § 58:10C-27(b)(4) states that a site ranked by the “category requiring the highest priority pursuant to the ranking system” may be subject to direct oversight.

But fear not. NJDEP advises that “if a Category 5 site is being actively remediated pursuant to the regulations and in compliance with the mandatory and regulatory timeframes then it would not be considered for direct Department oversight.” Additionally, the responsible party is allowed a one-time opportunity to review their initial score and category and may provide NJDEP with supplemental information that should have been submitted if it believes the initial score is based on old or incorrect data. Therefore, direct oversight is not automatic, however, a party expecting a Category 5 ranking should be diligent in ensuring it is in compliance with all regulations. A party receiving a Category 5 ranking will have the opportunity to convince NJDEP that it deserves a lower score.

NJDEP anticipates that the category determinations will be finalized and posted on the SRP website in September of 2012. Originally, NJDEP intended to send letters to responsible parties with their draft scores last November. This exercise was pushed back, but will need to occur by June in order for NJDEP to have a sufficient comment and review period prior to the September posting. After September, NJDEP will then update its listing during the first year at 6 month intervals and then quarterly from that point forward.