NJDEP to Rank Contaminated Properties Based Upon Environmental Risk

Over the next three to four weeks, the NJDEP will be sending letters to the responsible parties for all contaminated properties in New Jersey (other than residential properties) providing the NJDEP’s proposed ranking for each site.  Responsible parties will have only about 60 days to “challenge” those rankings.

The Site Remediation Reform Act, passed in 2009, not only established the LSRP program, but also requires the NJDEP to establish a “Priority Ranking System” to classify/categorize all contaminated properties in the state.  Specifically, the Act requires the NJDEP to create “a ranking system that establishes categories in which to rank sites based upon the level of risk to the public health, safety, or the environment, the length of time the site has been undergoing remediation, the economic impact of the contaminated site on the municipality and on surrounding property, and any other factors deemed relevant by the department.”  Site rankings are expected to become public in September 2012.

Contaminated sites will be ranked between 1 and 5, with category 5 reserved for sites presenting the highest risk to public health, safety or the environment, or the sites undergoing remediation for the longest time.  Category 1 will be for the sites with the least risk.  The NJDEP has not yet included economic impact or other factors in their ranking system, despite the Act’s mandate that those factors be included in the ranking process.

The rankings have been established using computer modeling, based upon electronic data submitted for contaminated sites as well as the NJDEP’s existing GIS computer data.  The NJDEP’s model considers data inputs such as the proximity of a site to sensitive receptors (e.g., schools, residential properties, wetlands, etc.), the contaminants of concern at the property, the toxicity of those contaminants, and the affected media (soil, groundwater, surface water or vapor intrusion).  The model then generates a score for a property, and that score in turn determines the overall site ranking.

The letters to be sent out by the NJDEP over the next several weeks are expected to allow responsible parties approximately 60 days to challenge the NJDEP’s ranking.  Those challenges will likely be limited to claims that the NJDEP used incorrect, outdated or incomplete data in determining a site’s rank.  The NJDEP has stated that this challenge period will not be extended for any site.  After considering challenges, the NJDEP is expected to issue its final site rankings in September 2012.  Those rankings will be updated periodically by the NJDEP based upon new data received from on-going cleanup cases.

This is a brand new NJDEP program, and it is not known how the NJDEP will ultimately use the rankings or how the public will use them.  With such uncertainty over the potential use of the rankings, a responsible party should minimally make sure that its site ranking is “accurate” under the NJDEP’s model.

With such a short window to present the NJDEP with any challenges to a site’s rank, it is critical that responsible parties discuss this issue with their attorneys and environmental consultants as soon as they receive their letter from the NJDEP.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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