Op-Ed: How We’ve Reduced Backlog of Environmental Remediation Cases in NJ

John Oberer | May 4, 2018 | Opinion
Nine years into a program to cut down on New Jersey’s overload of chemically contaminated sites, the results have been impressive

John Oberer
May 7 will mark the ninth anniversary of New Jersey’s adoption of a Licensed Site Remediation Professional (LSRP) program aimed at reducing a giant backlog of environmental remediation cases in the state while ensuring protection of human health and the environment. At the birth of the LSRP program almost nine years ago, the New Jersey Department of Environmental Protection (NJDEP) had a backlog of more than 20,000 cases with more new cases pouring in every day.

Drawing on aspects of a similar program in Massachusetts, in May 2009, the Legislature enacted, and then-Gov. Jon Corzine signed into law, the Site Remediation Reform Act. Its core mission was to empower a group of state-certified and -licensed remediation professionals to take remedial actions through to conclusion, without having to ask the NJDEP for sign-offs every step of the way.

The results have been enormous. In the coming weeks, the state’s LSRPs will issue their 12,000th Response Action Outcome certification, or RAO. After decades of inaction, delay, and indecision on remediating sites contaminated with hazardous and toxic chemicals, New Jersey is seeing comprehensive progress, thanks to a strong cadre of LSRPs who bring deep qualifications to the work —and are held to the highest standards of responsibility and ethical conduct.

Lessons learned

We’ve learned a lot in New Jersey about the positive impact that can be achieved when government gives the private sector the tools and accountability to take charge of remediating contaminated sites. I’d cite four particularly important lessons:

1. Professional judgment can be squelched by the government — but it can be revived by the government, too.

For many years, even decades, before the adoption of the Site Remediation Reform Act, practitioners in New Jersey did not have the ability to use their professional judgment and many didn’t know what those words meant. In the old days of waiting for regulators, overseen by Trenton, to sign off on every step of a remedial action, remediation specialists honed minimalistic approaches to do as little as possible in the name of advocating for our clients.

Immediately after the act become law, many newly minted LSRPs shifted to a different philosophy of being completely conservative in our approach in order to protect our licenses. Now that the program has its feet under it and there is a case record LSRPs can rely on, the pendulum is swinging toward practicality.

One example: Recently I worked with a client on removing a leaking underground heating oil storage tank adjacent to their building, excavating the soil around the leak, including on one side all the way to the building foundation wall. In the old days, the NJDEP would have refused to sign off on the UST removal because we hadn’t collected samples in all four directions surrounding the excavation. Now, as an LSRP, I had the power to attest: that we dug as far as the rules mandate in three directions and sampled, and in the fourth, we dug out every inch of soil — and then stopped because we reached a concrete wall holding up a building, leaving no soil to sample. (Truth be told, the department itself has also been instrumental in helping LSRPs to learn the standard of care that is expected by working in a compliance assistance mode — not something NJDEP was used to in the old days.)

2. When government empowers private-sector professionals to use their professional judgment, it can deliver much more effective realization of government’s goals.

In its effort to clear the backlog of site actions over the years, the “old” NJDEP sometimes approved closure of sites that would not be approved by today’s LSRPs; nor would these sites have gotten a second look. As a consequence, there are old cases out there, closed by NJDEP, that are being reopened by LSRPs after they have remained essentially inactive for decades. Closure of many sites was allowed to drag on while the department and consultants for responsible parties exchanged letters while no progress toward actual cleanup was made. These cases are working their way through the system now and will eventually get completed.

3. Going to court to threaten defiant site owners with fines and prison gets their attention.

The long, drawn-out process for the Department of Justice and NJDEP to prosecute those who flout New Jersey’s environmental laws had, over the years, created a culture of apathy due to an inability to enforce timeframes for deliverables. Since the mid 1970’s, the NJDEP had made it a practice just to repeatedly send threatening letters to responsible parties who had not met their commitments to clean up contaminated properties.

This created a substantial hurdle for DEP to overcome in convincing people that it was serious, and, in fact, most cases remaining in the backlog are those who have not responded to repeated attempts by the department to contact them. Over the last two years, however, the department has adopted a new way of bringing recalcitrant responsible parties to the table with municipal summons to appear before a judge, in court. Through the end of last year, 74 citations had been issued at 47 sites, threatening more than $200,000 in fines. When a summons arrives, we’re seeing more people connected with contaminated sites now realizing that the DEP is serious.

4. For small firms and solo practitioners, a strong professional association can ensure the same professional development and idea-sharing experiences that big-firm professionals naturally enjoy.

Some LSRPs, particularly those who work as independent consultants or in small firms, initially had no access to resources within their own firms to exchange ideas and develop new approaches to problems with site remediation and had difficulty adjusting to the standard of care. Larger firms with multiple practitioners often facilitate the exchange and sharing of ideas to allow proof-testing of remedial concepts or even provide peer review of professional work. This is where an organization like the Licensed Site Remediation Professionals Association can fill a significant gap by providing a forum for professionals to meet and exchange ideas. The association also provides other services such as the LSRPA Sounding Board. It has also become a great peer resource for those who are active and contribute to it.

As we have worked through the early years of the program, unexpected issues certainly have arisen, and some have made for interesting anecdotes along the way. Nine years in, what’s clear is that the program has demonstrated the adaptability to respond to those issues. Some improvements are being suggested for the statute itself by the LSRPA and other organizations.

The bottom line is that congratulations are in order for the NJDEP and the LSRPs of NJ for working together to hit this impressive upcoming milestone of 12,000 sites achieving Response Action Outcome status, years and even decades sooner than they would have under the old regulatory regime, and to the lasting benefit of the people and natural environment of the state of New Jersey.