• Be Wary of the SRRA and ARRCS' New Document Retention Requirements
  • January 28, 2010
  • Law Firm: Riker Danzig Scherer Hyland & Perretti LLP - Morristown Office
  • Traditionally, the NJDEP has served as the repository of documents related to the environmental conditions of properties in New Jersey's site remediation program. As the SRRA divests NJDEP of much of its responsibility for overseeing site remediation, however, it also shifts the responsibility for preserving documents to LSRPs and the parties responsible for conducting remediation.

    Section 20 of the SRRA requires LSRPs to "maintain and preserve all data, documents and information concerning remediation activities at each contaminated site" regardless of whether that documentation was developed by the LSRPs or by the LSRP's "divisions, employees, agents, accountants, contractors, or attorneys" so long as the documentation relates "in any way to the contamination at the site." Potentially, this provision creates an obligation on LSRPs to gather documentation held by third-parties who are involved in the site remediation process. Such third-party documentation presumably could include attorney-client privileged documents and attorney work product.

    Because LSRPs must retain all of this documentation for all of their sites for an indefinite period of time, it seems likely that they will become the target of increased discovery requests. Litigants will know, for instance, that an LSRP serving as an expert witness ought to have extensive documentation from each of his past sites, as well as which documentation may be used against the LSRP at deposition or trial. Consequently, there may be a risk in using a LSRP as an expert witness if that person has a long history as a LSRP.

    Section 20 of the SRRA also obligates LSRPs, at the time of issuance of a RAO, to provide in triplicate electronic copies to the NJDEP of all retained documentation. Furthermore, based on Governor Corzine's May 7, 2009 Executive Order, the NJDEP must post that documentation on the internet upon receipt. Consequently, there exists a potential for confidential or even privileged materials to become a readily-accessible and searchable part of the public record.

    The ARRCS further complicates this problem because it expands the record retention obligation beyond what is stated in the SRRA. Instead of requiring LSRPs to maintain documentation, the NJDEP's new regulations place that burden on the persons conducting the remediation. Moreover, the regulations increase the amount of documentation that must be maintained, because the responsible parties must retain all documentation related to the remediation of the contaminated site regardless of whether that material was prepared by a LSRP.

    Furthermore, the NJDEP has reserved the right to demand that the responsible party provide copies of all such documentation at any time, if so requested by the NJDEP. While the regulations do mention the "right to assert a privilege regarding such documents," they do not appear to otherwise relieve the responsible party of the obligation to provide the documents. Moreover, there is no apparent safeguard to prevent the NJDEP from disseminating privileged documents. This issue will likely be problematic in cases where the NJDEP is adverse to responsible parties, as it may provide a way to short-circuit normal discovery mechanisms.

    Finally, the ARRCS formulation of the record retention obligation appears to be designed to foil the concept of using a non-LSRP as an armchair expert by responsible parties. Perhaps, with this regulatory change, the only safe way for a responsible party to communicate with its attorneys and experts is orally. In that way, it can still obtain necessary advice without risk of exposing its thoughts to the public. Of course, however, such an arrangement would likely not prove workable or acceptable in the long-run, as the basis for decisions (and the decisions themselves) would become lost to time and cloudy memories. Consequently, responsible parties will need to be wary of the document retention requirements, and will need to carefully consider what information that they memorialize.