United States: Updated NJ Site Remediation Law Makes Public Outreach Key

Last Updated: September 24 2019
Article by Lori A. Mills

Ten years after its initial rollout in May 2009, New Jersey's Site Remediation Reform Act, or SRRA, has been given a tuneup. On Aug. 23, New Jersey Gov. Phil Murphy signed into law an act known colloquially as SRRA 2.0.

When initially adopted in 2009, the SRRA was intended to help streamline site remediation by shifting significant portions of traditional oversight of site cleanup work from the New Jersey Department of Environmental Protection to newly authorized licensed site remediation professionals, or LSRPs. These professionals would facilitate cleanups by the exercise of their professional judgment, subject to NJDEP rules, regulations and guidance, including mandatory and regulatory deadlines, presumptive remedies and an overarching duty of care to human health and the environment.

As might be expected, practical implementation of the SRRA immediately brought into view some of its flaws. In response, its original sponsors, and others who had worked to bring the SRRA into being, launched a stakeholder initiative to identify areas needed for change based upon lessons learned. At the end of that initiative, we have SRRA 2.0, which, like its predecessor, changes a host of New Jersey environmental statutes, including the Industrial Site Recovery Act, the Spill Compensation and Control Act, and the Brownfield and Contaminated Site Remediation Act.

There are over a dozen changes in the new law, but most are just new finish over old paint — aligning definitions used in the various statutes impacted by the SRRA procedures, codifying or clarifying existing practices, or providing a higher degree of certainty to the LSRP community with respect to those practices.

For example, to avoid risks associated with the heightened duty of disclosure applicable to LSRPs, it is not uncommon for the so-called persons responsible for conducting remediation, or PRCRs, under the law to retain a non-LSRP remediation consultant to help navigate issues arising in the remediation before elevating those issues to the LSRP, or to evaluate the remedial decision-making of the LSRP.

SRRA 2.0 tightens up the framework for those kinds of practices — such as by making clear that a person need not retain an LSRP for sampling or investigation to confirm or evaluate an LSRP's work, but at the same time expressly prohibiting a non-LSRP consultant from performing remediation without supervision by an LSRP.

So it is for most of SRRA 2.0. It avoids any major overhaul of the existing program (although various stakeholders looked for such changes), and so the real challenges will be navigating the bumps along the road as parties try to integrate the changes, which take effect immediately, into existing cases. There are, however, a handful of changes that warrant closer scrutiny for the greater significance they could have on how a PRCR and its LSRP should manage a remediation.

Public outreach is a familiar component of the SRRA and the rules applicable to it. Once a discharge is confirmed, notification of it must be provided to the NJDEP. That obligation is coupled by a requirement to provide the notification and updates on the remedial responses made to property owners and tenants within 200 feet of the site. Historically, notice could be by sign posting or biennial notice letter and fact sheets. The NJDEP can now require both.

Similarly, under the SRRA, once a remedial action was decided upon, but prior to its initiation, a PRCR would have to send notice to the local municipality and health agencies and, upon request, provide the municipality and/or health agency a copy of the remedial action work plan. SRRA 2.0 requires such notice earlier in the remediation process, and expands the types of information to local entity can request, including other reports or work plans and validated data developed during the investigation.

Perhaps the most significant change to public outreach is the formalization of an obligation for a PRCR to respond to written or email inquiries from the public that the PRCR receives, or that the NJDEP receives and forwards to the PRCR. This is not an entirely new situation. As the original SRRA unfolded, the deference given to LSRP decision-making often meant that certain reports or information did not reach the NJDEP until a later point in the process.

And, because the function of the LSRP effectively replaced the day-to-day oversight of the traditional NJDEP case manager, the NJDEP would often forward open public records act requests for handling by the LSRP. PRCRs and their LSRPs struggled with the concept of having to implement what is traditionally a government function. The need to do so is now a requirement — and the PRCR could find itself responding to inquiries by neighboring owners, prospective purchasers of property near the contaminated site or community action groups, among others.

So what does all of this mean? Taken together, the various changes to public outreach could bring a wider array of information regarding a contaminated property into the public domain — not only sooner rather than later, but also by way of direct communications from the PRCR and/or its LSRP.

Rather than being reactive to requests, consideration of a public outreach strategy should be part of the early planning stages of a site remediation program. What kind of messaging might accompany a document transmittal? Should counsel be involved to temper the impact of potentially binding admissions? Should there be a process established, such as a hotline, for fielding public inquiries? What kind of public relations strategy might make sense with local officials or active community groups?

Companies with in-house public relations resources should consider tapping into those resources during remedial planning, or otherwise consider outside public relations expertise. As the old adage goes, an ounce of prevention is worth a pound of cure.

Reprinted with permission of Law360.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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