Site Remediation Reform Act: How Will the Act Impact the Use of Alternate Remediation Standards (ARS)?

November 11th, 2009 | Posted by: Christopher DeGrezia 1| comments:

DSC_0371Although the Site Remediation Reform Act (SRRA) gives Licensed Site Remediation Professionals (LSRPs) substantial authority once the exclusive purview of NJDEP, not all of the functions held by NJDEP case managers under the pre-SRRA process for remediation will be transferred to the LSRP.  Such is the case with Alternate Remediation Standards (ARS).  An ARS is a remediation standard developed for use at a given site based on site-specific conditions and risks that is often less restrictive than adopted standards.  One of the laws modified by SRRA continues to allow the use of ARS in lieu of the established minimum soil remediation standards for residential or non-residential use.  In the pre-SRRA world, a party desiring to use an ARS would make a request to do so to its case manager, likely as part of its remedial action workplan submitted to NJDEP for approval.

Post-SRRA, we know that NJDEP expects not to be involved in approval of remedial plans and that LSRPs are to proceed with remediation under new mandatory time frames without awaiting NJDEP approval.  We also know that an LSRP is directed to follow the health-based remediation standards established or adopted by NJDEP pursuant to N.J.S.A. 58:10B-12 (the same provision that allows use of ARS), but the LSRP is not authorized to approve such standards. So, what happens when you want to use an ARS? Under Section 21 of SRRA, NJDEP may undertake additional review of any submittal proposing an ARS or site-specific standard.  According to NJDEP, requests for use of an ARS will be flagged for NJDEP’s attention when an LSRP copies NJDEP on its reports.  Forms that will be designed by NJDEP to cover submittals will specifically call out issues such as requests for use of an ARS that will then trigger NJDEP’s audit or heightened review function for that submittal.  The request to use an ARS will then be accepted or rejected by NJDEP based on results of the review.

The time it takes NJDEP to rule on the request to use an ARS (if timely made) should constitute a basis for extension of a mandatory time frame; however, a request for such an extension must still be made.  Any NJDEP delay in approving an ARS is not among the explicit activities that automatically requires an extension of mandatory deadlines.  NJDEP’s discretionary authority is certainly broad enough to allow it to grant extensions in such cases, but those determinations will be made by NJDEP on a case-by-case basis.  Hopefully, NJDEP will address this issue in the guidance relating to mandatory time frames SRRA requires NJDEP to issue.

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One Response to “Site Remediation Reform Act: How Will the Act Impact the Use of Alternate Remediation Standards (ARS)?”

  • Tracy Doyle says:

    Chris:

    I will pass along to those in our group who have involvement in NJ Projects.

    I also wanted to send you the link to Hill’s blog -http://constructionadvisory.blogspot.com/.

    Tracy

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