The New Jersey Department of Environmental Protection ("NJDEP") will soon release scores for contaminated properties pursuant to the Remedial Priority Scoring ("RPS") system established under the Site Remediation Reform Act, N.J.S.A. 58:10C-1, et seq. ("SRRA"). With the RPS system, the NJDEP will assign a score and rank to contaminated sites in New Jersey. By statute, the factors that the NJDEP considers in ranking the sites include: (i) the level of risk to the public health, safety, or the environment; (ii) the length of time the site has been undergoing remediation; (iii) the economic impact of the contaminated site on the municipality and on surrounding property; and (iv) any other factors "deemed relevant" by the NJDEP. See N.J.S.A. 58:10-23.16.
These efforts are in conjunction with a database that, by statute, the NJDEP is required to maintain. In the database, the NJDEP is required to provide specific information about a contaminated site, including the location of the known or suspected contaminated site, the status of the remediation, the contaminants of concern, and whether institutional or engineering controls are in use at the site. The NJDEP is required to provide public access to reports from the database on its website. The NJDEP currently maintains a list of known contaminated sites, which is available online at http://www.nj.gov/dep/srp/kcsnj/.
There are number of foreseeable negative impacts of a high RPS score. For example, the RPS score may impact marketability (and prospective redevelopment) of a site. Also, the SRRA provides that the NJDEP may undertake direct oversight of sites ranked in the highest priority category. See N.J.S.A. 58:10C-27.b. The consequences of NJDEP direct oversight are severe and include (among others): (i) the person responsible for conducting the remediation must establish a remediation trust fund in the amount of the estimated cost of the remediation; and (ii) the NJDEP will select the remedy for the site. See N.J.S.A. 58:10C-27.c.
Recipients will have sixty (60) days to challenge the ranking and should have the opportunity to present existing site environmental data with an explanation as to why the data supports a lower RPS score. Recipients may also look to use the challenge to try to explain to the NJDEP why the RPS score is inaccurate.
Those that receive a RPS score from the NJDEP should review it carefully and consider all available options. Developing a complete understanding of technical aspects of the RPS score, the NJDEP's methodology in deriving that score, and the potential consequences of that score are good places to begin.
The RPS system is only one of several recent developments connected with the SRRA.
March 1, 2012 was the mandatory deadline for parties to submit an Initial Receptor Evaluation for many contaminated properties in New Jersey undergoing environmental cleanup. Also, all remediating parties will be required to retain a Licensed Site Remediation Professional by May 7, 2012.
More information on the NJDEP's RPS system can be found at: http://www.nj.gov/dep/srp/srra/rps/
More information on the SRRA can be found at: http://www.nj.gov/dep/srp/srra/
Disclaimer by McCarter & English, LLP: This publication is for informational purposes only and is not offered as legal advice as to any particular matter. No reader should act on the basis of this publication without seeking appropriate professional advice as to the particular facts and applicable law involved.
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