Pre-SRRA? SRRA!: NJDEP Clarifies Applicability of SRRA to Pre-SRRA Cleanup Orders and Agreements
In a listserv published on September 10, 2020, the New Jersey Department of Environmental Protection (NJDEP) has once again made clear that the innovative requirements of the 2009 Site Remediation Reform Act (SRRA), including the requirement to retain a licensed site remediation professional (LSRP), apply to any cleanup being performed under an administrative consent order (ACO) or remediation agreement (RA) that predates the enactment of SRRA on November 4, 2009. (SRRA was amended last year in what some commentators termed “SRRA 2.0.”)
The NJDEP release, which supersedes a 2012 listserv on the same subject, confirms that (except for cleanups at certain federal facilities or sites being addressed under federal statutes) all parties conducting remediation work must retain an LSRP, even if they are subject to a pre-SRRA ACO or RA. NJDEP will hold in abeyance all ACO/RA requirements regarding departmental pre-approval of reports and work plans, as well as any deadlines contained in the order or agreement. Remediating parties must instead meet all regulatory and mandatory timeframes in NJDEP’s regulations. Other requirements in the ACO/RA will remain in effect, including those relating to a remediation funding source (RFS), RFS surcharges, and stipulated penalties.
The new listserv also clarifies that SRRA overrides any termination provision in a pre-SRRA ACO or RA. NJDEP will not terminate an ACO or RA until the remediation satisfies SRRA requirements for completion, including submission of a remedial action report, the issuance by an LSRP of a response action outcome, and (if applicable) the issuance by NJDEP of all required remedial action permits.