Posts Tagged ‘ISRA’

NJ legislature about to pass the buck on clean-ups

Written by Mike Pisauro on February 25th, 2009 in Clean Up, legislation, Politics | 1 Comment »

As I wrote in prior posts (here and here) the State is pushing a complete revamp of our site remediation bill.  On February 2nd, I and other environmentalists testified before the Senate Environment Committee in opposition to the bill.  Our written comments can be found here: Enviro’s comments on s1897.

Tomorrow both the Assembly Environment and Solid Waste Committee and the Senate Environment Committee will consider S1897 at a joint hearing. I expect the bill will be passed out of the committee in short order tomorrow and then make it to a vote in both Houses. The bill has gone through many changes since the Feb. 2nd hearing and almost none of the changes have been for the better.

For example the latest version of the bill removes any DEP oversight of the cleanup by the worst offenders until the responsible party violates the cleanup regulations at least twice. The worst offenders are going to be given at least two more bites at the rotten apple before DEP may take over even if they already have a long history of non-compliance up to now.

Another example is that DEP’s is only required to “audit” 10% of the documents submitted during a year.  Given that a cleanup could involve hundreds of documents and multiple that by all of the cleanups going on during a year, 10% of all of the documents submitted in a year is grossly inadequate to fully protection people and the environment.  The DEP cannot audit LSPs but must ask that the LSP board undertake an audit.  There is no requirement that the LSP act on the DEP’s request. There is also no requirement that a LSP board member step aside if an audit is against one of the board member’s co-workers.

Another example is the bill will do little to protect those who need protection the most, our children. While the bill provides that cleanups on properties that will be residences, schools and day care should be cleanup to an unrestricted standard, those properties can also be cleaned up to a presumptive remedies (a standard to be developed by DEP) or using engineering or institutional controls. This means that contamination will remain on the property under a layer of concrete, pavement or additional dirt. Children whose bodies, including their hearts, lungs, brains and nervous systems, are developing are more susceptible to the effects of toxins. If the Mass. model is any indication of how cleanups are going to occur in NJ less than a third of the cleanups will be to an unrestricted level. This is not acceptable. It is also unacceptable that the legislature has repeatedly refused to provide enhanced protection to recreational fields in addition to residences, schools and daycare centers.

In short, fast cleanups are not necessary good cleanups especially if they have to be redone at a later date after people have been exposed to hazardous levels of pollutants.

DEP releases proposed site remediation bill

Written by Mike Pisauro on November 7th, 2008 in Clean Up | 2 Comments »

There is a general consensus, both in the environmental community as well as the regulated community, that New Jersey’s process to clean up contaminated properties is broken.  New Jersey was once a model and pioneer on cleanups.  Now contaminated sites linger.  For the last several years that has been a string of cases dealing with contaminated sites, Kidde Kollege, W.R. Grace, Ford’s Edison plant, Ringwood and probably others.  A Federal government report came out critical of how DEP has handled cleanups.  The State has recognized that something has to be done.

After a lengthy and long process that began over a year ago we have reached another milestone.  Back in June the legislature released a bill to revamp our site clean up process, S1897/A2962.  Now, DEP has released their own bill on how they would like to see this revamping occur.  From what DEP said last week their bill has been crafted after many consultations with the Chairmen of the Senate and Assembly environment committees.  This major revamping will get a public airing on November 13th, when the legislature holds a joint Senate Environment and Assembly Environment and Solid Waste hearing to discuss DEP’s bill.  It will then be scheduled for another hearing(s) where the bill will be voted on by the committees.

DEP’s bill (here) is 130 pages long and I have not had a chance to read it as of yet, but based upon a meeting last week, this is what I understand to be in the bill.  Many things may have changed from that meeting till the release of the bill on Wed as DEP was still working on the draft.  I will have another post once I have had a chance to review and digest the bill.  Also, here is a link to DEP’s stakeholder site where there is more information regarding the stakeholder process and prior testimony on the state of site remediation.

First, DEP will start a licensed site professional program (LSP).  These LSP will be the ones responsible for determining how to clean up (with some exceptions), the review of the cleanup and then the final review and determination that the site has been cleanup in accordance with New Jersey law.  The LSP is responsible for certifying to the DEP that all documents submitted to the DEP is accurate and in accordance with the law.

The LSPs will be selected and paid directly by the responsible party.  A proposal from the environmental community that the LSPs be selected by the DEP for each particular site and that the DEP pay the LSPs from an escrow fund funded by the responsible parties has been rejected.  This LSP program has been modeled after the Massachusetts program.

LSPs will be subject to random audits and a “strict” code of ethics.  These audits could be of multiple cites that are being handled or had been handled by the LSP.  DEP’s position is that the threat of audits, the code of ethics is enough to make sure there is no undue influence on the LSPs.

There will remain a class of contaminated sites that DEP has more oversight responsibility for.  These may be active sites whose owners or responsible parties have difficult and slow to clean up their properties.  These “Tier 1” sites may also be those that pose the greatest risk to natural resources because of the nature of the contamination or its location to natural resources.

Second, the DEP will no longer issue No Further Action letters.  These NFAs would be issued once a site was clean-up and were relied on by the regulated community and financial institutions to buy and sell formerly contaminated sites.  Now the LSP will certify the site is clean and DEP will not require further clean up as long as what was done was protective of the environment and human health; that it was actually done or that contamination was not missed in the original site investigation.  I can’t see how this one would be acceptable to the regulated community, but we will see.

Third, DEP is asking that the statutes of limitations (SOL) affecting contaminated sites be consistent with each other.  For example the statute of limitations for natural resource damages is longer than that for cost recovery.  DEP is proposing that all SOL’s been the same.

Fourth, DEP is going to (maybe) receive more authority to pick or require certain remedies at educational facilities, child daycares, and residential developments.  This may in fact be an illusionary increase in authority.

Fifth, during the stakeholder process DEP found a large percentage (I think the number is like 30+% but I don’t remember) of applications that come into the Department were deficient.  DEP will institute strict timelines and procedures on how to return a deficient application and for the LSP to provide the revised or corrected application.

Once I have had a chance to look at the bill I will post further comments and correct those things that may have changed from the meeting last week to Wed’s release.

DEP will not issue letters of non-applicability

Written by Mike Pisauro on May 4th, 2008 in Clean Up | No Comments »

On DEP’s website today is a notice that it no longer will issue letters of non-applicability. DEP’s notice can be found here. These letters of non-applicability are staples of the transactional word. A buyer of business or property normally requires that the Seller of the business or property a letter of non-applicability before the transaction can be completed. What the Seller does is to submit an application to DEP for a determination that the previous activities on the property do not trigger an obligation under the Industrial Site Remediation Act to perform a cleanup of the property or for additional testing to be performed. This letter of non-applicability provides a certain level of comfort if not protection to a buyer that the property he is buying is clean.

According DEP’s testimony during a joint hearing with Senate Environment Committee and Assembly Environment and Solid Waste Committee. Irene Kropp, assistant commissioner for site remediation program, testified that a majority of the program’s work load is involving dealing with transactional requests. And that this is part of the problem with getting to the real clean ups in the State.

While this will alleviate some of DEP’s workload, and may or may not violate statutes, it definitely cause serious issues with the business world.