- Is an RAO the Equivalent of an NFA?
- December 22, 2011
- Law Firm: Riker Danzig Scherer Hyland Perretti LLP - Morristown Office
Among the many new provisions of the NJDEP rule proposal is a significant change in the way that an RAO issued by an LSRP may be invalidated. Proposed section 6.4 of the Administrative Requirements for the Remediation of Contaminated Sites ("ARRCS") outlines twelve circumstances under which an LSRP must invalidate his or her own RAO. The proposal is significant in that it requires the LSRP, not the NJDEP, to invalidate an RAO. In addition, a determination that the remedial action is not protective of public health and the environment is not required before the RAO is invalidated.
An essential underpinning of the LSRP program is that an RAO has the same force of law, effect and finality as an NFA. Indeed, the SRRA sets a high bar before an RAO may be invalidated. Under the SRRA, failure to comply with regulatory requirements is insufficient to invalidate an RAO; the NJDEP must determine the remedial action itself is not protective of public health and the environment. The NJDEP has stated publicly that the invalidation of an RAO should be a "rare" and "unusual" occurrence. The existing NJDEP rule applicable during the interim, phase-in period of the LSRP program requires a determination by the NJDEP that a remedial action is not protective before an RAO may be invalidated. Under the existing rule, none of the approximately 900 RAOs issued to date by LSRPs have been invalidated.
The proposed rule takes a new approach. An LSRP would be required to invalidate his or her own RAO if any one of twelve generic circumstances is met, without being required to determine that the remedial action is not protective. Several of the listed circumstances requiring invalidation can be triggered by simple mistakes or failure to comply with specific permitting requirements or regulations. Others are vague - e.g., the RAO is "not supported by environmental data" or mistakes "may result in detrimental reliance by a third party" -- or contrary to the SRRA. Only one requires a specific demonstration that the remediation is not protective. The possibility that an LSRP may be required to invalidate the RAO for a site has no time limit.
Many commenters on the NJDEP rule proposal have raised concerns over the effect this provision may have on the LSRP program. If adopted, the proposal would increase uncertainty as to the finality of RAOs. It also would make it too easy for project objectors, litigants or other adversaries to challenge an LSRP's work. An LSRP program where RAOs are frequently invalidated will not give rise to timely and more efficient cleanup and redevelopment of contaminated sites. Commenters have asked the NJDEP not to adopt this aspect of the proposed rule and to retain the approach of the existing rule and SRRA.
The reliability of RAOs is critical to the success of the LSRP program and Riker Danzig will continue to monitor and report on the development of this significant issue.