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.