Governor Corzine Signs Site Remediation Reform Act

Posted on May 8, 2009 by Douglas I. Eilender

On May 7, 2009, Governor Jon Corzine signed into law the Site Remediation Reform Act (the “Law”) that will overhaul the way investigations and cleanups are done in New Jersey. The Governor concurrently signed Executive Order #140 that clarifies certain provisions to the Law (http://www.state.nj.us/infobank/circular/eojsc140.htm). The Law addresses the overburdened New Jersey Department of Environmental Protection (“DEP”)’s current staff, budget constraints and case backlog by creating a Licensed Site Remediation Professional (“LSRP”) program. The LSRPs are environmental consultants with specified education and experience who perform investigations and remediation at sites in New Jersey. The legislation, sponsored by Senator Bob Smith, was passed by the New Jersey Senate on March 16, 2009. 

The Law identifies who may become LSRPs, establishes their qualifications, licensing procedures, and a code of conduct and defines their role in the remediation process. In addition, the Law establishes a separate Site Remediation Professional Licensing Board (“Board”), tasked with creating standards for education, training and experience that will be required of any person who applies for a license or a license renewal. The Board conducts examinations to certify that an applicant possesses sufficient knowledge of the state regulations, standards and requirements applicable to site remediation and the applicant is qualified to obtain a license or a license renewal.

The Law calls for rules and regulations to be adopted no later than 18 months after enactment to implement the LSRP program. However, since it will take some time for this Law to be fully developed and implemented, the Law calls for an interim licensing program to be established within 90 days of enactment. Those seeking a temporary LSRP license must have the same qualifications as a full LSRP, as well as one of several professional certifications (i.e., certified hazardous materials manager from the Institute of Hazardous Materials Management, a certified groundwater professional from the National Groundwater Association, a licensed professional engineer from the National Council of Examiners for Engineers). Further, an applicant for a temporary LSRP license must show that they have existing current site remediation experience.

Within 180 days of the effective date of the Law, any submissions concerning the remediation of a contaminated site must be signed and certified by both the person responsible for conducting the remediation and the LSRP. The LSRP’s certification will state that the work was performed, that the LSRP managed, supervised or performed the work and that the work and submission conform to the Technical Requirements for Site Remediation, N.J.A.C. 7:26E 1 et seq. Remediation projects that are on-going or that begin within 180 days of enactment of the Law are not required to be conducted by an LSRP. However, all remediation projects will need to be conducted by an LSRP after the third anniversary of enactment of the Law.

The level of coordination between the LSRP and the DEP depends on various factors, such as the history of compliance, the contamination present, natural resources impacted and the ranking of the individual site. The more complex the site, the higher the degree of involvement DEP will have with the LSRP. However, it is unclear as to the timing of DEP’s decision to retain jurisdiction or delegate it to the LSRP. Pursuant to Executive Order #140, by July 6, 2009, DEP shall develop guidelines to address this concern.

The Law is designed to streamline the DEP’s review of environmental reports, so that transactions are not delayed due to the lack of responsiveness from the DEP. We shall see whether New Jersey can join states like Connecticut and Massachusetts, which run effective LSRP programs.
 

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Failure of Notice Deadly to Plaintiff's Claim

Posted on May 6, 2009 by Dorothy Mello Laguzza

The District Court of New Jersey in a case of first impression recently held that a New Jersey resident’s lawsuit under the New Jersey Environmental Rights Act (“ERA”) must be dismissed due to her failure to give the appropriate parties notice. (Scott v. Dupont, 2009 WL 901135 (D.N.J. April 1, 2009). Although the plaintiff later provided the requisite notice, the court held that the notice provision under the ERA is a mandatory condition precedent and plaintiff’s failure to properly file notice is fatal to her claim.


The ERA provides that any person can commence an action in court against any other person alleged to be in violation of any “statute, regulation or ordinance which is designed to minimize pollution, impairment or destruction of the environment.” N.J.S.A. § 2A:35A-4(b). The ERA effectively allows a citizen to step into the shoes of the Department of Environmental Protection (“DEP”) and enforce environmental laws against an alleged violator. However, the ERA requires that prior to commencing such an action the plaintiff must first provide the DEP, other public officials, and the defendant at least 30 days advance written notice of their intention to file the suit. N.J.S.A. § 2A:35-A-11.


In Scott v. Dupont, the plaintiff was one of several in a class action filed against Dupont alleging that the company allowed significant amounts of a Teflon-related material to contaminate the public water supply. Prior to filing her ERA claim, the plaintiff failed to comply with the act’s advance notice provision. The court dismissed her claim despite the plaintiff’s argument that her ERA lawsuit should continue because she notified the DEP and requisite others before Dupont moved for dismissal for failure to provide notice. The court held that the “ERA notice is a mandatory condition precedent to bringing a private cause of action under the ERA,” and therefore, is a defect that cannot later be cured.


This decision may possibly be used by New Jersey courts to dismiss claims under other statutory notice provisions. Therefore, plaintiffs should be aware at the commencement of their lawsuit that if statutory notice is required they risk dismissal of their claim prior to the merits ever being heard if notice is not correctly filed. Although a harsh result, if there is a defect in following an environmental statute’s notice provision, that defect cannot be cured.

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