New Jersey Law

Proposed Legislation Seeks to Fine Tune Legal Requirements for Clean Up of Contaminated Properties

The legislature is currently working to fine tune the Site Remediation Reform Act (SRRA) which addresses remediation of contaminated properties. The SRRA which was implemented in 2009 essentially privatized the process of remediating contaminated sites within New Jersey. Prior to the SRRA the process of site remediation required analysis and preparation of reports by consultants retained by a property owner, developer, or prospective buyer which were then reviewed by the NJDEP prior to any implementation of the remedial process. The implementation was also overseen and approved by the Department. This would usually slow down the process of remediation and development due to the time delay in the Department reviewing and approving each step in the process.

The SRRA allows qualified consultants to be licensed to implement the regulatory requirements and to approve site clean up subject to a final review by the Department. A licensed site remediation professional (LSRP) is required to follow all aspects of those regulatory requirements for site remediation. This effectively improves the speed by which sites are able to be remediated. It has been reported that thousands of fallow sites have become available for new development as a result of the SRRA. The legislation, Senate Bill 3682, co-sponsored by firm partner Kip Bateman, is intended to fine tune certain aspect of the SRRA. The bill is currently being evaluated and reviewed by the stakeholders and is expected to be finalized in the near future. Proposed revisions include enhanced public notice requirements; broadening of the areas where vapor intrusion investigations are required to be conducted, including vacant structures that may be used in the future human occupancy; clarifying the obligation of LSRPs to report contamination to the NJDEP; and proposes more formalized requirements in order to bring a malpractice action against an LSRP, including the requirement of an Affidavit of Merit which is typically required for malpractice claims against attorneys, doctors or other licensed professionals; providing parameters under which cases in which the NJDEP has direct oversight to go back to the LRSP program; and to expand the type of remediation funding sources available.

Although environmental groups have raised certain concerns about the nature and extent of some of the remediation that has been permitted, and the failure of the NJDEP to develop a ranking system for hazardous waste sites within the State of New Jersey, it is evident that the SRRA has been beneficial by expediting approved environmental remediation, enhancing the ability of parties to buy and sell properties that had some environmental issues, and to enable properties with some environmental issues to be put to beneficial use.

The DiFrancesco Bateman environmental department will continue to monitor to progress of this legislation, and will report on any significant changes that may be of interest to our clients. If you have any questions regarding this article, or require further information on legal aspects of site remediation, contact Steven A. Kunzman, the chair of the firm’s environmental practice group.