New Jersey Transitions to Partial Privatization of NJDEP Oversight

By Scott Lippert, Esq.
slippert@pashmanstein.com

The supervision of the remediation of contaminated property has essentially been privatized in New Jersey.  Effective May 2012, the party responsible for any clean-up will have to hire a Licensed Site Remediation Professional (“LSRP”) who will take care of the functions formerly performed by a case manager of the New Jersey Department of Environmental Protection (“NJDEP”).  NJDEP simply no longer has the staff or the funding to do its job in this area.  Environmental clean-up cases, especially “low-priority” cases have been languishing literally for years for lack of response from NJDEP.  We have one case in our office that has been pending for about 9 years.

It remains to be seen how effective the new LSRP program will be.  From a “green” perspective, concerns have been raised that these privately-paid professionals will not have the best interests of the state in mind when deciding whether or not to approve a particular clean-up plan.  On the other hand, there is no question that the new program will get remedial projects moving again.

Will some LSRPs seek to be perceived as business friendly and perhaps allow less comprehensive, less expensive plans to be implemented than might have occurred under NJDEP supervision?  Perhaps.  Another school of thought is that they will be so concerned with maintaining their licenses that they may in fact be more difficult to deal with than the case managers at NJDEP were.  We’ll just have to see what happens.

One thing to keep in mind when dealing with LSRPs is that they are agents of the state.  If they enter a site and find or suspect contamination, they must report it.  Therefore, an LSRP should never be used to conduct due diligence.  There will still be good old-fashioned environmental scientists who will not have LSRP licenses, who should be used for such investigations.  A seller of real property should make sure that the contract of sale has a provision expressly prohibiting the buyer from using an LSRP to conduct due diligence.

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