Site Remediation Reform Act Summary
The speed with which contaminated sites are remediated in New Jersey and converted to productive use is slow and unacceptable. The delays associated with remediating contaminated sites results in contaminants remaining in our environment for long periods of time, spreading and negatively impacting our natural resources. Properties that can be redeveloped and placed back on local tax rolls remain, as a result of such delays, unutilized or under utilized. Significant reform is needed to the site remediation program in order to fix the problem.
A bill has been introduced in the State legislature which addresses this issue. This bill is known as the “Site Remediation Reform Act” or Senate Bill S-1897 and Assembly Bill A-2962. The proposed bill:
- Establishes a new streamlined process by which the Department of Environmental Protection (DEP) will oversee the cleanup of contaminated sites,
- Establishes the ability of the DEP to prescribe mandatory time frames to conduct cleanup of contaminated sites so sites do not languish unremediated for years,
- Establishes a program which will license environmental consultants to oversee the cleanup of contaminated sites,
- Require persons who discharge hazardous substances at sites to clean up such discharges pursuant to the Spill Act,
- Continues the concept of “Covenants not to sue”, but does so by operation of law rather than issuance of a document by the DEP,
- Makes changes to existing site remediation laws which will improve the site cleanup process, and
- Allows the DEP to require more protective cleanups at schools, child care facilities and residential housing developments.
This proposed bill specifically establishes a new licensing board that will be authorized to license environmental consultants, known as Licensed Site Remediation Professionals (LSRP), who perform remediation work at contaminated sites. The board will be comprised of 13 individuals, 6 of which are LSRPs, 3 environmentalists (one of whom shall be an LSRP), one academic, one businessperson, the State Geologist and the Commissioner of the DEP. The board will be required to develop rules related to licensing as well as the enforcement of said licenses including the ability to issue penalties, suspend and revoke licenses.
Licensed Site Remediation Professionals will be required to adhere to a strict Code of Conduct, Ethics and Conflict of Interest. They will be required to certify that all submittals to the DEP comply with State statutes and rules, and they will issue, upon completion of a clean up at a site, a Response Action Outcome (RAO) which certifies that a site does not pose a risk to human health, safety and the environment. As a result of the LSRPs issuing RAOs, the DEP, with the exception of certain fuel oil tank cleanups, will no longer issue No Further Acton (NFA) letters.
The DEP will change how it oversees site remediation cases by establishing an initial screening process for all documents submitted by an LSRP. All screenings will include an evaluation of specific triggers enumerated in this proposed bill. Based on this evaluation, the DEP will either accept the document as is, perform some level of audit of the document or assign a full time case manager to oversee the remediation at the site.
The DEP will also provided direct oversight for a group of remediation cases that represent the “worst of the worst”. Remediation cases will receive direct oversight if any of the following conditions exist:
1. The person conducting the remediation has a history of noncompliance as evidenced by missing mandatory cleanup deadlines;
2. The person conducting the remediation receives 2 enforcement actions within 5 years for failure to comply with cleanup rules and regulations; or
3. An entire site remedial investigation has been ongoing during the last 10 years and is not completed within 5 years of enactment of this bill.
In addition, the Department may provide direct oversight of a remediation case if the contaminated site significantly impacts sensitive ecological or human receptors on or near the site.
The Department’s direct oversight of these cases includes its ability to require a remediation funding source (RFS) in the form of a Remediation Trust Fund for the entire cost of the remediation, and the DEP will make disbursements from this Fund to pay the LSRP and the costs of remediation. The DEP will have remedy selection authority for these cases and will dictate the level of public participation. Additionally, an LSRP working on these cases must submit all documents, data, reports to the client and DEP simultaneously.
This bill also modifies existing cleanup statutes with regards to who is required to establish a Remediation Funding Source (RFS). This bill will exempt homeowners, governmental agencies, educational facilities and childcare facilities from the need to establish a RFS. Current law requires an annual 1% surcharge on all RFSs and this money is placed in the Hazardous Discharge Site Remediation Fund. This bill continues the practice of charging a 1% surcharge but redirects this money to the Remediation Guarantee Fund (RGF). Moneys in the RGF will be used by the DEP to remediate any contaminated site where the person responsible for conducting the remediation fails to conduct or properly conduct that remediation. The money can also be disbursed by the DEP as technical assistance grants to nonprofit groups to assist them in evaluating remediation methods and monitor site conditions at specific sites of public concern in the local community.
This proposed bill provides the DEP with the ability to mandate presumptive remedies and/or disapprove proposed remedies for the following category of sites: educational facilities, child care facilities, and residential developments. The proposed bill also prohibits the development of educational facilities, child care facilities, and single family homes on landfills that require leachate and methane collection systems.
The proposed bill also clarifies that dischargers of hazardous substances have an affirmative obligation to remediate their discharges pursuant to the Spill Act,
outlines the requirements of cleanup oversight for persons remediating site, and provides the DEP with the ability to establish mandatory timeframes for the completions of various remedial phases. It also eliminates the DEP’s requirement to issue a covenant not to sue and replaces it with a covenant not to sue by statute.
The bill also changes the statute of limitations for natural resource damages to make it consistent with that for cost recovery and begins the statute of limitation at the issuance of the RAO versus the completion of a remedial investigation. The bill updates various sections of remedial statutes that contain requirements that are outdated, and requires the DEP to make available internet-based reports to the general public concerning site remediation activities. The bill clarifies that persons applying for HDSRF grants can not relinquish or waive any right to recover costs of remediation against an insurance carrier, discharger or person responsible for a hazardous substance.
Finally, the proposed bill limits the category of sites a certified subsurface evaluator can work on to homeowner heating oil tanks