Let’s face it, when NJDEP was in the business of issuing “No Further Action Letters” (NFA), a developer or party responsible for a cleanup, had some sense of finality and comfort that the NFA signaled the end of the road, and would limit future costs. Under the LSRP program, the consultant, not DEP, will issue the final approval — a Response Action Outcome (RAO). Under current law, NJDEP has the right to audit a “final” RAO within three years from issuance of filing. That begs the question: When is it legal for DEP to invalidate an RAO?
For starters, an LSRP is bound to follow “applicable specific NJ technical standards”. However, if no applicable standard exists and DEP’s other general guidelines are inappropriate or unnecessary, then the LSRP can, in its professional judgment, turn to (i) federal EPA standards and (ii) standards used in the other 49 states. This is important. DEP, in auditing a filing, can therefore invalidate an RAO where the LSRP (A) failed to adhere to DEP technical standards and requirements or (B) failed a reasonableness test in following an EPA or standard from another state.
The attorney’s role just got a little more complicated.