New Jersey Enacts Changes to Landmark 2009 Site Remediation Reform Act

In 2009, in the face of a significant backlog of sites that were stuck in the Department of Environmental Protection (DEP) pipeline, the New Jersey Legislature dramatically changed the process of site remediation in the Garden State with the enactment of the Site Remediation Reform Act (SRRA). The SRRA partially outsourced DEP’s review role by authorizing “private” oversight of cleanups by Licensed Site Remediation Professionals (LSRPs). On August 23, 2019, Governor Murphy signed new legislation that made further adjustments to the changes wrought by the SRRA.

The legislation (L. 2019, c. 263), which sailed through both legislative chambers without a single opposing vote, makes a number of changes to the LSRP program, as well as other changes affecting parties responsible for conducting remediation projects.

Amendments Affecting LSRPs

• Removal of unoccupied structures from list of areas that must be addressed as an “immediate environmental concern.”
• Expansion of LSRP duties to report immediate environmental concerns and previously unreported discharges.
• A slight relaxation of licensing requirements for individuals who may have temporarily left the work force for personal reasons.
• Clarification of prior acts and punishments that will disqualify a person from obtaining an LSRP license.
• Tightening of LSRPs’ oversight responsibilities to ensure that non-LSRPs do not effectively perform work reserved for LSRPs.
• Requiring an affidavit of merit from any party who sues an LSRP for malpractice or negligence.

Amendments Affecting Parties Responsible for Conducting Remediation

• Clarification that an LSRP need not be retained to oversee due diligence activities that are not required by remediation rules or conducted to obtain a response action outcome or address a known or suspected discharge.
• Confirmation of the availability of a defense to Spill Act liability for certain post-1993 “innocent purchasers.”
• Authorization for the Superior Court and municipal courts to impose civil penalties for Spill Act violations.
• Addition of surety bonds as a new option for remediation funding sources.
• Tightening of requirements involving disclosure of cleanup information to the public.
• Addition of a requirement to retain an LSRP to manage, supervise, or perform the requirements of a remedial action permit for the duration of the permit.
• Changes to requirements involving when a remediation will come under direct oversight by DEP.

Some of the statutory changes will also require regulatory amendments to implement the Legislature’s goals.

While not nearly as revolutionary as the 2009 SRRA, the 2019 amendments represent a “course correction” for DEP, LSRPs, and responsible parties. Those with any connection – past, present, or future – to contaminated sites in New Jersey would do well to update their files, and to be mindful of DEP’s likely regulatory response to the new enactment.