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.
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