May 7, 2014: SRRA Will Fail If Enforcement Not Deadline Slides

This is the first of two blogs about the critical role of enforcement by the NJDEP in the Site Remediation Reform Act of 2009.

If the Legislature extends the May 7, 2014 deadline in the Site Remediation Reform Act for two more years, under what circumstances will the New Jersey Department of Environmental Protection still fine property owners whose groundwater plumes of oil, gasoline, or dry cleaning fluid are seeping into storm drains and streams?

How much is the NJDEP deferring enforcement to statutory deadlines that come and go?

What Will Make or Break the SRRA Legacy

If the NJDEP issues two penalties against a “Responsible Party” within five years, the SRRA dictates that the NJDEP “shall” become responsible again for assuming the “Direct Oversight” of the cleanup of that property - regardless of any deadline.

But the whole point of the SRRA in 2009 was to shift the state's responsibility for overseeing the cleanup of contaminated sites to Licensed Site Remediation Professionals in the private sector. The SRRA privatized case management so that LSRPs could speed up the remediation of thousands of sites that NJDEP case managers had backlogged.

So: how has the NJDEP - which has seen its share of staff cuts and “transformations” since 2009 - been issuing penalties, when just two will trigger “Direct Oversight” and return its staff to their role as case managers?

The May 7, 2014 or 2016 Deadline

When you Google “May 7 2014 deadline site remediation”, you will scroll through several pages of links to consultant and attorney websites warning that the “looming” statutory deadline of May 7, 2014 is “rapidly approaching” for properties where contamination was identified on or before May 7, 1999.

The RPs are not being required to clean up their property by May. To avoid the “specter” of Direct Oversight, they are required to complete a “Remedial Investigation”.

Their LSRP needs to write a report showing that they have defined the extent of the contamination; whether it's impacting onsite or offsite “receptors” (human or natural resources); and how they plan to remove or treat the contamination. The SRRA deadline is requiring “Responsible Parties”, who have known for fifteen or more years that their property is contaminated, to complete their RI report.

A few of these links discuss a bill proposed on 11/18/13 (S3075) that under certain circumstances would extend the RI deadline for 2 years to May 7, 2016. One of the sponsors of S3075, as well as the SRRA, is Senator Bob Smith of Middlesex. The bill appears to exempt only those members of the regulated community that can prove that they have completed most but not all of the RI since 2009. The NJDEP has to publish a proposed extension in the New Jersey Register for public comment before it can be granted.

That seems reasonable. But to insure that this also protects the public welfare for two more years, the NJDEP’s Mission Statement about protecting the environment needs to kick in, by way of sections C.58:10C-27a and C.58:10C-27b of the SRRA.

27a

The strongest and most general section is C.58:10C-27a. This uses the “shall” word that unequivocally directs the NJDEP to take back the responsibility for remediation from the LSRP if they have issued the Responsible Party two enforcement actions during any five-year period. Enforcement taken before 2009 does not count. Violation Notices are not considered enforcement actions because they are warnings, not fines: "enforcement action means an administrative order (AO), a notice of civil administrative penalty (ANOPCA), or a court order.” However, a penalty for violating “any rule or regulation adopted pursuant thereto” the SRRA would be relevant (pursuant means consistent with). The NJDEP would also inherit Direct Oversight if a statutory deadline is missed, like the one coming up in May.

vs. 27b

Section C.58:10C-27b is limited to higher priority cases and is more convoluted. The NJDEP “may” - not “shall” - take over the remediation if the site is contaminated with waste from chromium production; if it has impacted more than one “environmentally sensitive natural resource”; if it has contaminated aquatic sediments with polychlorinated biphenyl, mercury, arsenic, or dioxin; or if “the site is ranked by the department in the category requiring the highest priority pursuant to the ranking system developed pursuant to section 2 of P.L.1982, c.202 (C.58:10-23.16).”

So what does that last one mean? And what is more than one “environmentally sensitive natural resource”?

That requires another blog. A shortish one.