Posted on June 7, 2012 by William L. Warren
Significant consequences may result from the upcoming remedial priority ranking of approximately 12,000 contaminated sites by the New Jersey Department of Environmental Protection (NJDEP). In mid-May NJDEP initiated its formal communications with parties responsible for contaminated sites by sending data forms that identified the information that NJDEP will use to compute the remedial priority rankings of most contaminated sites. After about a 90 day review and comment period, NJDEP will rank all of the sites on a scale from 1 to 5, with “1” being the “lowest risk potential” and “5” being the “highest risk potential.” Within about sixty days of receipt of the data form, each recipient will have to register with the NJDEP to preserve its right to submit comments. Only the Licensed Site Remediation Professional (LSRP) for the site, required to be retained by responsible parties by May 7, 2012, may submit the actual comments on the data form. NJDEP intends to publish site rankings in the Fall and to update the rankings quarterly commencing in 2014, as more data becomes available for each site during the course of remediation.
NJDEP originally planned to publish draft site rankings and submit the rankings for comment. However, it decided to issue these draft forms instead, explaining that it wanted to focus its efforts on giving parties the opportunity to make sure that it had up-to-date site remediation information before it calculated the site ranking.
NJDEP’s ranking will be based on:
• risk to the public and the environment;
• length of time the site has been undergoing remediation;
• economic impact; and
• other factors deemed relevant.
I. Why Is NJDEP Ranking Sites, and How Will Sites Be Affected by the Ranking?
Besides a long overdue statutory obligation to rank contaminated sites, NJDEP wants to insure that the sites with the highest potential risk are being remediated. Although nothing is certain, NJDEP likely will not take any action, even if a site is highly ranked, so long as:
• the site is undergoing active remediation;
• no enforcement actions have been commenced; and
• an LSRP has been retained.
However, if the remediation is not proceeding in compliance with these criteria, a high ranking may cause NJDEP to place the site under its “Direct Oversight,” and “Direct Oversight” is not a place that most responsible parties want to be. (See Section III. below) It is also true that a highly ranked site, even if not placed under NJDEP “Direct Oversight,” is more likely to receive public scrutiny and potential adverse publicity than is a lower ranked site. NJDEP, the United States Environmental Protection Agency (USEPA) and legislators constantly receive requests from environmental groups and others to take remedial action or investigate the progress of a remediation. Undoubtedly, a site with a high ranking is a target for future attention, especially because NJDEP will be posting the rankings on its website.
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