At site cleanup deadline, program offers progress, but also questions

As owners and responsible parties of 9,000 polluted sites meet the Department of Environmental Protection's Licensed Site Remediation Professionals program deadline today — or face a steep fine and direct DEP oversight — industry insiders voiced concern over the program's long-term plans for negotiations and the seemingly perpetual responsibilities of private-sector consultants.

“We have no doubt that there will be sticky points over next year or two, as we get this running full speed,” said Michael McGuinness, CEO of the New Jersey chapter of commercial real estate association NAIOP. “But we’ve been so primed for it that I think we’re going to surprise ourselves with the amount of progress we’ll make. You want to get a (response action outcome) that says ‘You’re done, it’s cleaned up,’ but certain criteria exists that could invalidate it … there’s still a lack of clarity in the rules.”

In 2009, the Site Remediation Reform Act established the program to streamline the state’s site cleanup system and clear the DEP’s backlogged caseload. Under the new system, private-sector environmental consultants, known as Licensed Site Remediation Professionals, carry out site remediation work under strict standards established by the DEP.

According to Stephen Santola, executive vice president of Woodmont Properties, the 560 LSRPs licensed by the state are too few and far between for the program, which he said should “get closer to 1,000” as the program becomes more clear cut.

Over the last three years, as the program was phased in, LSRPs have closed about 1,200 cases; the state has approximately 15,000 contaminated sites, though 6,000 are exempt from LSRP. According to the DEP, as of last week, 5,000 cases of the remaining 9,000 had been enrolled in the program. The agency said it will evaluate the remaining cases for further action, but expects that a large number will involve sites where no viable responsible party exists or can be identified.

For his company’s five sites that have already signed up with an LSRP, Santola said, there is no formal agreement or industry standard to negotiate off of, which he said could possibly lead to some confusion in the future.

“Sometimes, I have a 15-page draft or a two-page draft going back and forth with an LSRP,” Santola said. “The LSRP review board should really come up with some base agreement. But, so far, the DEP audits of LSRP reviews have been fair and reasonable. As it’s progressing right now, we don’t have tremendous concerns.”

But McGuinness said it’s unclear how long those negotiations would last, citing a concept of perpetual responsibility that’s written in the DEP’s guidance documents for site cleanup.

“What happens when you sell the site to someone else? We don’t know at what point in time these responsibilities end with LSRPs,” McGuinness said. “These are some obstacles to deal with. All these things have to be figured out.”

In the meantime, McGuinness noted, “there are overall numerous benefits to towns getting businesses into the contaminated sites sooner than before,” and NAIOP’s New Jersey members had “been given fair notice of the (deadline) date change.”

“Today’s deadline should not come as a surprise to any responsible parties,” said David Sweeney, DEP assistant commissioner for site remediation, in a statement. “We will now evaluate these cases to determine how to proceed, fully expecting these responsible parties to comply with the law. It is in their best interest to do so immediately.”