Properties that are in the New Jersey Department of Environmental Protection (NJDEP) Site Remediation Program (SRP) are required to complete various cleanup activities by specified deadlines under the auspices of a Licensed Site Remediation Professional (LSRP). If the remediation of a site fails to stay on schedule, the site may become subject to the onerous Direct Oversight (DO) requirements of the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS). N.J.A.C. 7:26C-14. In 2017, we saw a significant increase in the number of sites subjected to DO, either at the discretion of NJDEP or by operation of law. Regardless of the mechanism by which DO was imposed on sites, NJDEP has also developed mechanisms to avoid or relax the DO requirements, where NJDEP believes it is warranted. Two forms of Administrative Consent Order were developed by NJDEP as a result.
Where a site faces deadlines that will not be met and a prospective purchaser wishes to acquire the contaminated property, but only if it will not be subject to DO, NJDEP has developed a Pre-Purchaser Administrative Consent Order (ACO) which must be negotiated and fully executed by the purchaser and NJDEP prior to the acquisition. This form of ACO effectively extends the deadlines that would otherwise trigger DO. Another mechanism being used in circumstances where DO has been triggered at a site, perhaps innocently, are ACOs where adjustments to the DO requirements are earned and the site is allowed to proceed through the remediation process largely under the auspices of an LSRP. The details of such orders vary depending upon the circumstances of each site.
Absent the change in administration in Trenton, we would have expected this flexible approach to DO to expand as more and more sites are deemed by NJDEP to have triggered DO; however, it’s unclear whether the new administration will look favorably on this flexibility when DO has been triggered or is likely to be triggered. Equally, it’s unclear whether non-governmental organizations (NGOs) might challenge any ongoing efforts by NJDEP to “relax” the strictures of DO. This will be an emerging issue to watch in 2018.