Site Remediation Reform Act: What Does Executive Order No. 140 Add to the Licensend Site Remediation Professional Program?

October 6th, 2009 | Posted by: Christopher DeGrezia 0| comments:

Site Remediation Reform Act - Executive OrderAs with any new and major environmental law, the Site Remediation Reform Act (SRRA) had its share of critics from all ends of the political spectrum.  The New Jersey environmental activist community was among the most vocal objectors to certain aspects of the proposed Licensed Site Remediation Professional (LSRP) legislation.  Executive Order No. 140 was designed by the Governor’s Office to ease the concerns of the environmental groups.

An executive order cannot amend or change the provisions of a law passed by the Legislature. An executive order can provide direction to the agency charged with implementing a new law, however.  In fact, Executive Order No. 140 acknowledges that: “…the DEP will promulgate rules to implement the Legislation [SRRA], and given the complexity and range of issues, it would be helpful for those affected by the Legislation to have a sense of the direction of how the DEP and the Office of the Governor will work together to implement it;….” Executive Order No. 140 gives NJDEP just this type of guidance from the Governor.

In particular, Executive Order No. 140 includes the following directions to NJDEP as it prepares for the implementation of SRRA and the LSRP program:

NJDEP shall increase its auditing and monitoring, including on-site inspections and LSRP submissions at the following types of “high priority” sites:

  • sites with groundwater contamination above remediation standards;
  • residential housing sites;
  • educational sites, including child care, day care centers, public, private or charter schools; or
  • play grounds and ball fields.

Executive Order No. 140 does not specify the extent of the required increase in NJDEP oversight.

  •  NJDEP was required to develop guidelines governing the circumstances in which it will undertake direct oversight of a remediation of a contaminated site pursuant to N.J.S.A. 58:10C-27. NJDEP has now posted the guidance document required by Executive Order No. 140 on its website.  Click here for more information about NJDEP’s direct oversight of remediation under SRRA.  Undoubtedly, direct NJDEP oversight will lead to increased costs and delays, making this a very important issue for the regulated community.
  • During the two years immediately following the effective date of SRRA (until May 7, 2011), NJDEP’s review of 10 percent of all documents submitted by LSRPs must include “at least one review of case documents submitted by every LSRP.” No LSRP will escape the watchful eye and audit pen of NJDEP in the first two years of the LSRP program. (Note that SRRA requires the 10 percent review to be conducted by the newly formed Licensed Site Remediation Professional Board, staffed by NJDEP personnel, not NJDEP directly.)
  • NJDEP is required to issue technical assistance grants (TAGs) to a minimum of five local community environmental groups per year during the temporary phase of the LSRP program to evaluate remediation methods or interpret the work of temporary LSRPs.  The source of NJDEP’s funding for these LSRP program TAGs is not clear in Executive Order No. 140. These grants will provide local environmental groups with resources necessary to monitor NJDEP’s implementation of the temporary phase of the LSRP program. Your case will be subject to heightened scrutiny if located in a municipality impacted by TAGs.
  • Starting on or before December 31, 2010, NJDEP must prepare annual reports on the implementation of SRRA and the LRSP Program by NJDEP for review by the Governor, the Senate Environment Committee and the Assembly Environment and Solid Waste Committee.  Any problems revealed in these annual reports could lead to revisions to the ongoing LSRP program.

Executive Order No. 140 includes several other directions to NJDEP relating to the establishment and oversight of the LSRP program as follows:

  • In order to “further the transparency of the operations of [NJDEP’s] Site Remediation Program,” NJDEP is directed to post on an Internet site every document submitted by an LSRP in connection with a contaminated site.  These Internet postings must include all audit findings within 60 days of their being finalized, a very ambitious undertaking for NJDEP’s information technology staff. Potentially, a wealth of information will be easily accessible, without the need to employ NJDEP’s Open Public Records Act process.  The Internet availability of these documents should make it less expensive for a review of this information by environmental groups and potential adverse litigants related to remediated properties and, therefore, increase the possibility of future litigation.
  • NJDEP is directed to work with the Governor’s Appointments Office to locate persons of the “highest professional caliber” to serve as members of the LSRP Board. Special care is required to find one appointee with expertise in public health and another with experience as a hydrogeologist.  The Appointments Office is directed to name all 11 initial nominations for the LSRP Board at the same time.
  • Directs the LSRP Board to immediately “promulgate rules insulating an LSRP’s professional judgment from economic pressures to the maximum extent practicable,” making this a potentially significant impact of Executive Order No. 140. The LSRP program already dramatically changes the client/environmental consultant relationship. Click here to read more about the LSRP program. We will need to review the LSRP Board’s proposed rules to determine whether they will cause any further erosion of a client’s ability to control the work it has contracted for.
  • NJDEP is directed to propose and adopt the provisions of Executive Order No. 140 as regulations with the force and effect of law.

NJDEP’s implementation of SRRA will determine the full impact of the LSRP program on the regulated community.  With the issuance of Executive Order No. 140, the development of the LSRP program may be a little bit clearer, but the devil is always in the details.

If you need assistance or have any specific questions, feel free to contact: 

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