S1897

An Act concerning site remediation, and amending and supplementing various parts of the statutory law.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) As used in sections 1 through 22 of this act:

"Business firm" means any corporation, association, firm, partnership, sole proprietorship, trust or other form of commercial organization.

"Certified subsurface evaluator" means a person certified to perform services at the site of an underground storage tank or an unregulated heating oil tank pursuant to P.L.1991, c.123 (C.58:10A-24.1 et seq.) as a subsurface evaluator.

"Environmental crime" means any criminal violation of one of the following State laws: R.S.12:5-1 et seq.; P.L.1975, c.232 (C.13:1D-29 et al.); the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.); section 17 of P.L.1975, c.326 (C.13:1E-26); the "Comprehensive Regulated Medical Waste Management Act," P.L.1989, c.34 (C.13:1E-48.1 et al.); P.L.1989, c.151 (C.13:1E-99.21a et al.); the "New Jersey Statewide Mandatory Source Separation and Recycling Act," P.L.1987, c.102 (C.13:1E-99.11 et al.); the "Pesticide Control Act of 1971," P.L.1971, c.176 (C.13:1F-1 et seq.); the "Industrial Site Recovery Act," P.L.1983, c.330 (C.13:1K-6 et al.); the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.); "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.); the "Freshwater Wetlands Protection Act," P.L.1987, c.156 (C.13:9B-1 et al.); the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.); the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.); the "Water Supply Management Act," P.L.1981, c.262 (C.58:1A-1 et al.); P.L.1947, c.377 (C.58:4A-5 et seq.); the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.); P.L.1986, c.102 (C.58:10A-21 et seq.); the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et al.); the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.).

"Immediate environmental concern" means a condition at a contaminated site where: there is confirmed contamination at levels at or above the ground water remediation standards adopted by the department from a discharge of a hazardous substance in wells used for potable purposes; subsurface contaminants from a discharge are confirmed to have migrated into an occupied or confined space producing a toxic or harmful atmosphere resulting in an unacceptable human health exposure, or producing an oxygen-deficient atmosphere, or resulting in demonstrated physical damage to essential underground services; or a condition where there is analytical data that documents that either dermal contact or ingestion of a contaminated material could result in an acute human health impact.

"Local government unit" means a county, municipality, or other political subdivision of the State, or any agency, authority, or other entity thereof.

"Person" means any individual or business firm.

2. (New section) a. The Department of Environmental Protection shall establish a licensing program for site remediation professionals. The department shall establish licensing requirements for site remediation professionals and shall oversee their licensing and performance.

b. The department shall establish standards for education, training and experience that shall be required of any person who applies for a license or a license renewal. The department shall conduct examinations to certify that an applicant possesses sufficient knowledge of the State regulations, standards and requirements applicable to site remediation and the applicant is qualified to obtain a license or a license renewal.

The department shall also adopt standards for the professional conduct for licensed site remediation professionals. The department shall require an applicant to submit references to assure that the applicant meets the standards established for professional conduct by licensed site remediation professionals.

c. Application for a license shall be made in a manner and on such forms as may be prescribed by the department. The filing of an application shall be accompanied by an application fee that shall cover the costs of processing the application and developing and conducting the examinations. The department may also charge an annual license fee that shall cover the costs of the licensing program.

d. An applicant for a site remediation professional license shall demonstrate to the department that the applicant:

(1) holds a bachelor's degree or higher in natural, chemical or physical science, or an engineering degree, from an accredited institution of higher learning;

(2) has 10 years of continuous full time employment in the field of contaminated site remediation during which the applicant has been responsible for managing the remediation of the sites on which the applicant has worked;

(3) has a minimum of 5,000 hours of experience over the five years immediately prior to the submission of the application, of work on contaminated sites within the State;

(4) has attended and completed the minimum environmental health and safety education and training no more than 12 months prior to the submission of an application for a license pursuant to this section;

(5) has attended and completed the course approved by the department on the State's regulations concerning the technical requirements for site remediation no more than 12 months prior to the submission of the application;

(6) the applicant has financial responsibility assurance as provided in subsection e. of this section;

(7) the applicant has not been indicted for, convicted of, or plead guilty to, an environmental crime or any similar or related criminal offense under federal or state law; and

(8) has not had a state license revoked by any state licensing board or any other licensing agency within the previous 10 years.

e. As a condition for the issuance of a license or license renewal of a site remediation professional, a licensee shall be required to provide the department with evidence of financial responsibility for the performance of services provided pursuant to P.L.1993, c.139 (C.58:10B-1 et seq.). Financial responsibility shall be in an amount to be determined by the department but in no case less than:

(1) for bodily injury - $2,000,000 per occurrence and $5,000,000 aggregate;

(2) for property damage - $2,000,000 per occurrence and $5,000,000 aggregate;

(3) for professional liability, errors and omissions - $2,000,000 per occurrence and $5,000,000 aggregate;

(4) for pollution or property damage - $5,000,000.

The licensee shall promptly notify the department of any cancellation or change in coverage. A failure to so notify the department may be grounds for a license suspension or revocation. Financial responsibility in the amount and form required by the department shall be maintained for the term of the license.

f. No person may obtain a license unless that person satisfactorily completes the examination and meets the standards established for training, experience, and education required in subsection b. of this section, provides evidence of financial responsibility as required pursuant to subsection e. of this section, meets standards for professional conduct established pursuant to subsection b. of this section, and satisfies any other requirements established by the department to assure that licensed site remediation professionals meet the requirements established pursuant to this section, and are in compliance routinely and on a continuing basis with all standards and requirements applicable to site remediation professionals.

g. In order to maintain a license issued pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), every licensed site professional shall meet the continuing education requirements as established by the department.

3. (New section) a. Each license issued pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be issued to an individual, shall be valid only for the individual to whom it is issued and shall not be transferable. Each license issued pursuant to section 2 of P.L. , c. (C. ) shall be valid for a period not to exceed three years, unless a shorter period is specified therein, or unless suspended or revoked.

b. A licensed site professional shall submit an application for a license renewal no more than 90 days prior to the expiration of the license. The department shall establish standards for the renewal of the site remediation professional license and may require training or continuing education, experience or other requirements as a condition for the renewal of a license. The department shall also establish standards and requirements for the renewal of a site remediation professional license after a site remediation professional's license has been suspended or revoked. The filing of an application for a license renewal shall be accompanied by a nonrecoverable application fee.

4. (New section) Notwithstanding the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) to the contrary, the department shall adopt, after notice, interim rules and regulations establishing a program for the licensing of site remediation professionals pursuant to the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), and establishing oversight requirements and mandatory timeframes as provided in sections 18 and 19 of P.L. , c. (C. ) (pending before the Legislature as this bill), a no more than 180 days after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill). The rules and regulations shall be effective as regulations immediately upon filing with the Office of Administrative Law and shall be effective for a period not to exceed two years, and may, thereafter, be amended, adopted or readopted by the department in accordance with the provisions of the "Administrative Procedure Act."

5. (New section) a. The Department of Environmental Protection shall issue a temporary site remediation professional license. A person who meets the requirements set forth in this section to the satisfaction of the department shall be issued a temporary license. All applications for a temporary site remediation professional license, together with any applicable fees, shall be submitted to the department no later than three months after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill).

b. An applicant for a temporary site remediation professional license shall demonstrate to the department that the applicant:

(1) holds a bachelor's degree or higher in natural, chemical or physical science, or an engineering degree, from an accredited institution of higher learning;

(2) has 10 years of continuous full time employment in the field of contaminated site remediation during which the person has been responsible for managing the remediation of the sites on which the applicant has worked;

(3) has a minimum of 5,000 hours of experience over the past five years of work on contaminated sites within the State;

(4) possesses at least one of the following certifications:

(a) Certified Hazardous Materials Manager from the Institute of Hazardous Material Management;

(b) Certified Ground Water Professional from the National Ground Water Association;

(d) Licensed Professional Geologist from any state’s professional geologist licensing board;

(e) Certified Environmental Professional from the Academy of Board Certified Environmental Professionals;

(f) Qualified Environmental Professional from the Institute of Professional Environmental Practice;

(g) state license to perform remediation work from a licensing program determined by the department to be comparable to the licensing program established pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill);

(5) has attended and completed the minimum environmental health and safety education and training no more than 12 months prior to the submission of an application for a temporary license pursuant to this section;

(6) has attended and completed the course approved by the department on the State's regulations concerning the technical requirements for site remediation no more than three years prior to the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill);

(7) the applicant has financial responsibility assurance as provided in subsection d. of this section;

(8) the applicant has not been indicted for, convicted of, or plead guilty to, an environmental crime or any similar or related criminal offense under federal or state law; and

(9) has not had a state license or any other certification required pursuant to paragraph (4) of this subsection revoked by any state licensing board or any other licensing agency within the previous 10 years.

c. Any certification or license required pursuant to paragraph (4) of subsection b. of this section shall be maintained in good standing. The loss or lapse of a certification or license provided in order to qualify for a temporary license pursuant to this section shall be grounds for immediate loss of the temporary license.

d. (1) An applicant shall provide with their temporary license application, a list of site remediation projects on which the applicant worked as the manager of the site within the last 10 years that meets the requirement set forth in paragraph (2) of subsection b. of this section. The list shall include name and address of the site, the identifying numbers for the sites, the applicant's dates of participation, and the state or federal environmental agency under whose oversight the projects were conducted. For each referenced project, an applicant shall provide a brief description of the specific activities the applicant performed with respect to the project.

(2) An applicant shall provide with their temporary license application, a list of site remediation projects conducted under the oversight of the department on which the applicant worked within the State during the five years prior to the application date. For each referenced project, the applicant must provide a brief description of the specific activities the applicant performed with respect to the remediation and the rules that were applicable to the site. The remediation work performed as required pursuant to paragraph (3) of subsection b. of this section shall demonstrate the applicant’s knowledge of, and application of, all applicable rules and regulations regarding site remediation.

(3) As a condition for the issuance of a temporary license pursuant to this section, an applicant shall provide the department with evidence of financial responsibility for the performance of services provided pursuant to P.L.1993, c.139 (C.58:10B-1 et seq.). Financial responsibility shall be in an amount to be determined by the department but in no case less than:

(a) for bodily injury - $2,000,000 per occurrence and $5,000,000 aggregate;

(b) for property damage - $2,000,000 per occurrence and $5,000,000 aggregate;

(d) for pollution or property damage - $5,000,000.

An applicant employed by a local government unit or by the federal government shall not be required to maintain financial responsibility assurance as provided in this section. Any applicant so employed shall not be authorized to perform licensed site professional work for any person other than their government employer.

e. A temporary site remediation professional license issued pursuant to this section shall expire 180 days after the adoption of interim rules pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) establishing the licensing requirements for site remediation professionals.

6. (New section) Any person certified to perform services at the site of an underground storage tank or an unregulated heating oil tank pursuant to P.L.1991, c.123 (C.58:10A-24.1 et seq.) as a subsurface evaluator may perform site remediation services at underground storage tank sites or unregulated heating oil tank sites except under the following conditions:

a. the conditions at the site pose an immediate environmental concern;

b. Contaminated groundwater exists within 100 feet of a potable well, whether the well is located on the property of beyond the property boundaries of the site;

c. Groundwater contamination has migrated beyond the property boundaries of the site;

d. A vapor intrusion investigation is required pursuant to the technical rules for site remediation;

e. Contamination from the site impacts any surface water body or wetlands; or

f. The person responsible for conducting the remediation is implementing a restricted use remedial action or a limited restricted use remedial action at the site.

7. (New section) a. No more than 90 days after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), any submissions concerning the remediation of a contaminated site shall be signed and certified by a licensed site professional, or by a subsurface evaluator as provided in subsection d. of section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill).

b. A licensed site professional or a subsurface evaluator, as appropriate, that signs and certifies submissions to the department concerning the remediation of a contaminated site shall certify that the work was performed, that the licensed site professional, or the subsurface evaluator, as appropriate, managed, supervised, or performed the work that is the basis of the submission, and that the work and the submission conform to the technical requirements for site remediation adopted by the department.

8. (New section) a. The Department of Environmental Protection shall issue a certification of authorization to a business firm that shall authorize the business firm to provide services for the remediation of contaminated sites.

b. A business firm may file an application with the department, on forms designated by the department for a certification of authorization for the business firm. The business firm shall provide the following information on its application and any renewal thereof:

(1) the name and address of the business firm and its satellite offices;

(2) the name, home address, and signature of all officers, corporate board members, directors, and principals and any licensed site professionals who are responsible for the provision of licensed site professional services through the business firm;

(3) any other information as may be required by the department to ensure compliance with P.L. , c. (C. ) (pending before the Legislature as this bill).

The department may charge a fee for the issuance or renewal of a certification of authorization to a business firm pursuant to this section.

c. No business firm shall offer to provide licensed site professional services in the State unless the department has issued a certification of authorization to the business firm pursuant to this section.

d. The certificate of authorization shall designate one or more State licensed site professionals. The licensed site professional shall be responsible for the provision of site remediation services and the submission of documents to the department. All final documents concerning the remediation of a contaminated site, when submitted to the department by the business firm or filed for public record, shall be signed and sealed by the State licensed site professional who is responsible for the remediation.

e. Any change to the information submitted to the department pursuant to subsection b. of this section shall be reported to the department no more than 30 days after the change.

f. The business firm shall notify the department upon a change at a business firm of the licensed site professional designated on the certificate of authorization. If a licensed site professional who is designated by the business firm on the certificate of authorization, leaves the business firm, fails to renew his license, or has his license suspended or revoked, the business firm shall not continue to provide licensed site professional services until it has notified the department of the licensed site professional responsible for site remediation at the business firm.

9. (New section) The Department of Environmental Protection shall establish a ranking system for all contaminated sites. Contaminated sites shall be ranked in one of four tiers. The department shall use the following criteria for the classification of sites:

a. the potential impact posed to the public health and the environment as determined by the department using its relative ranking system, including any receptor evaluation;

b. the length of time the site has been undergoing remediation without completing a remedial investigation;

c. the compliance history of the person responsible for conducting the remediation; and

d. any other data deemed necessary by the department to distinguish the tier classification based on impact to public health, safety and the environment.

10. (New section) a. The department shall classify a site as a tier 1 site if it meets the following criteria:

(1) the person responsible for conducting the remediation has a history of non-compliance with environmental statutes and regulations as evidenced by the receipt of multiple formal enforcement actions issued by the department over a four year period;

(2) the person responsible for conducting the remediation has repeatedly failed to meet the remediation timeframes established by the department by rule or regulation or pursuant to an administrative or court order; and

(3) the person responsible for conducting the remediation has failed to complete a remedial investigation of the entire site at least 10 years or more after discovery of the discharge and has failed to complete a remedial investigation for the entire site to the department’s satisfaction two years after the effective date of P.L. , c. (C ) (pending before the Legislature as this bill).

b. The department shall classify a site as a tier 2 site if it meets the following criteria:

(1) the site poses a significant detrimental impact on public health, safety and the environment as determined by a receptor evaluation;

(2) the site is within a brownfield development area or other economic development priority area;

(3) the site affects a licensed childcare facility, school or other sensitive population;

(4) the site remediation is subject to federal oversight; or

(5) the site is in an environmentally sensitive area, or is a high priority for economic development purposes.

c. The department shall classify a site as a tier 3 site if the site does not meet the criteria established for classification as a tier 1, 2 or tier 4 site.

d. The department shall classify a site as a tier 4 site if it meets the following criteria:

(1) the site involves the remediation of a leak from an unregulated heating oil tank; and

(2) the remediation does not pose an immediate environmental concern, ground water contamination is not within 100 feet of a potable well, ground water contamination has not migrated beyond the property boundaries of the property on which the discharge occurred, or the site has not posed a vapor intrusion concern inside a building.

e. The department, in its sole discretion, may change a site’s tier classification based the compliance history of the person responsible for conducting the remediation of a contaminated site, or on new information received from the certified subsurface evaluator or licensed site professional on behalf of the person responsible for conducting the remediation, or on information from any other source.

11. (New section) a. Except as provided in subsection d. of this section, all documents concerning the remediation of a site classified as a tier 1 or a tier 2 site, shall be submitted, signed, and certified by a licensed site professional. The licensed site professional shall submit a preliminary assessment, a site investigation report, a receptor evaluation, a remedial investigation workplan, a remedial investigation report, a remedial action workplan, a remedial action report and progress reports, including any changes or additions made to the reports or other documents. The department may require additional reports or data as appropriate. In addition, the person responsible for conducting the remediation and the licensed site professional shall submit any certifications required by the department.

b. Except as provided in subsection d. of this section, all documents concerning the remediation of a site classified as a tier 3 site shall be submitted by a licensed site professional. The licensed site professional shall submit any screening documents and certifications required by the department, a receptor evaluation, a remedial investigation report, a remedial action workplan, and a remedial action report including any changes or additions made to the reports or other documents. The department may require additional reports or data as appropriate.

c. Except as provided in subsection d. of this section, the documents required to be submitted for a site classified as a tier 4 site may be submitted by a licensed site professional or a certified subsurface evaluator. The licensed site professional or the subsurface evaluator shall submit any checklists and certifications required by the department and a remedial action report.

d. Any person responsible for conducting the remediation of a contaminated site who seeks a no further action letter based solely on the review of a preliminary assessment and site investigation that indicates that no contamination above an applicable standard exists on the site for which the person is seeking the no further action letter, may submit the preliminary assessment and site investigation report to the department.

12. (New section) a. For all sites classified as tier 1 sites:

(1) the department shall review and issue an approval or a denial of all documents submitted by the licensed site professional for the site;

(2) the department shall select the remedial action for the site;

(3) the person responsible for conducting the remediation shall establish a remediation funding source in the form of a remediation trust fund pursuant to subsection c. of section 25 of P.L.1993, c.139 (C.58:10B-3); and

(4) the department shall approve all disbursements of funds from the remediation trust fund prior to payment;

(5) the licensed site professional shall provide all submissions required by the department, to the department and the person responsible for conducting the remediation simultaneously;

(6) the person responsible for conducting the remediation shall implement a public participation plan, as required by the department, to receive public comment from the residents of the surrounding community concerning the remediation of the site.

b. For all sites classified as tier 2 sites, the department shall review and issue an approval or a denial of all documents submitted by the licensed site professional for the site.

c. For all sites classified as tier 3 sites, the department shall review screening documents and certifications submitted by a licensed site professional for the site.

d. For all sites classified as tier 4 sites, the department shall review required checklists and certifications.

13. (New section) a. The department shall audit the remediation of any site classified in tier 3 or tier 4 as follows:

(1) If the department’s review of a screening document or checklist indicates the licensed site professional or certified subsurface evaluator conducting the remediation of the site did not comply with the technical requirements for site remediation, the department may conduct a review of any document submitted to the department or developed by the licensed site professional or certified subsurface evaluator;

(2) If the department’s review conducted pursuant to paragraph (1) of this subsection indicates the data upon which the remedial investigation, remedial action workplan, or remedial action is based, raises concerns about the quality of the work conducted by the licensed site professional or certified subsurface evaluator, the department will conduct a field audit of the site and a more comprehensive review of submitted documents and site conditions;

(3) If the results of the department’s field audit indicate that the licensed site professional or certified subsurface evaluator did not conduct the remediation in accordance with all applicable environmental statutes and regulations, the department shall notify the licensed site professional or certified subsurface evaluator in writing, of any additional remediation activities the licensed site professional or certified subsurface evaluator shall conduct at the site and the deadlines by which the work must be conducted.

b. If the department issued a no further action letter to the person responsible for conducting the remediation based on the documents submitted or the field activities performed by the licensed site professional that the department found to be deficient, the department may revoke the no further action letter.

c. The department shall post the name and license number of all licensed site professionals receiving a notification of deficiencies pursuant to paragraph (3) of subsection a. of this section, on the department's official website.

14. (New section) a. A licensed site professional may be audited by the department at least once during the three-year licensing period.

b. Every licensed site professional shall cooperate with the department in the audit and provide any information requested by the department.

c. Every licensed site professional shall maintain all data, documents and information concerning remediation activities at each contaminated site the licensed site professional has worked on, including but not limited to, technical records and contractual documents, raw sampling and monitoring data, whether or not the data and information, including technical records and contractual documents, were developed by the licensed site professional. The licensed site professional may assert a privilege regarding the documents, but shall agree not to assert any confidentiality or privilege claims with respect to any data related to site conditions, sampling or monitoring.

d. The licensed site professional shall preserve for a minimum of 10 years after the date the department issues a no further action letter concerning a site at which the licensed site professional has conducted remediation, all data and information required to be maintained pursuant to this section in his possession or in the possession of the licensed site professional’s divisions, employees, agents, accountants, contractors, or attorneys that relate in any way to the contamination at the site. After the expiration of the 10-year period, the licensed site professional may make a written request to the department to discard the documents. The request shall be accompanied by a description of the documents involved, including the name of each document, date, name and title of the sender and receiver and a statement of contents. Upon receipt of written approval by the department, the licensed site professional may discard only those documents that the department does not require to be preserved for a longer period. Upon receipt of a written request by the department, the licensed site professional shall agree to submit to the department all data and information required to be maintained pursuant to this section. The licensed site professional may assert any privilege regarding the data or information, but shall agree not to assert any confidentiality or privilege claims with respect to any data related to site conditions, sampling, or monitoring.

e. The department may order a licensed site professional to correct any deficiencies, errors or omissions found as a result of the audit, including deficiencies found in complying with applicable laws, rules or regulations.

f. The department may revoke or suspend the license of a licensed site professional as a result of the audit pursuant to the provisions of sections 16 and 17 of P.L. , c. (C. ) (pending before the Legislature as this bill).

15. (New section) a. There is established a code of professional conduct which shall be binding on every licensed site professional and certified subsurface evaluator.

b. Each licensed site professional or certified subsurface evaluator is required to have knowledge of and familiarity with the provisions of the code of professional conduct set forth in this section, and shall have an understanding of these provisions.

c. Each licensed site professional or certified subsurface evaluator shall act with reasonable care and diligence, and shall apply the knowledge and skill ordinarily exercised by licensed site professionals or certified subsurface evaluators in good standing practicing in the State at the time the services are performed.

d. A licensed site professional or certified subsurface evaluator shall not provide professional services outside the areas of professional competency, when this competency is based on education, training, or experience, unless the licensed site professional or certified subsurface evaluator has relied upon the technical assistance of one or more professionals whom the licensed site professional or certified subsurface evaluator has reasonably determined are qualified in these areas by education, training or experience.

e. A licensed site professional or certified subsurface evaluator shall correct all deficiencies in a submitted document identified by a notice of deficiency issued by the department which shall be provided in the timeframes established for resubmittal.

f. A licensed site professional or certified subsurface evaluator may complete any phase of remediation based on remediation work performed under a previous licensed site professional or certified subsurface evaluator, and the workplan or report generated by the previous licensed site professional or certified subsurface evaluator may be relied upon as sufficient to protect public health, safety, welfare, or the environment, only if the successor licensed site professional or certified subsurface evaluator has: (1) reviewed all available documentation known to the successor licensed site professional that describes previous discharges, remediation and results; (2) conducted a site visit to observe current conditions and to verify the status of as much of the work as is reasonably observable; and (3) concluded, in the exercise of independent professional judgment, that the successor licensed site professional or certified subsurface evaluator has sufficient information upon which to complete any additional phase of remediation and prepare workplans and reports related thereto.

g. A licensed site professional or certified subsurface evaluator who has taken over the responsibility for the remediation of a contaminated site from another licensed site professional pursuant to subsection f. of this section shall correct all deficiencies in a document submitted by the previous licensed site professional or certified subsurface evaluator identified by a notice of deficiency issued by the department which shall be provided in the timeframes established for resubmittal.

h. A licensed site professional or certified subsurface evaluator shall hold paramount the protection of the public health, safety and the environment in the performance of professional services.

i. A licensed site professional or certified subsurface evaluator shall sign a workplan, report or any other required submittal only when the licensed site professional or certified subsurface evaluator has managed, supervised or actually performed the work that is the basis of the submittal, or has periodically reviewed and evaluated the performance by others of the assessment.

j. In providing professional services, a licensed site professional or certified subsurface evaluator shall: (1) exercise independent professional judgment; (2) adhere to the requirements and procedures set forth in the applicable provisions of P.L. , c. (C. ) (pending before the Legislature as this bill); (3) make a good faith and reasonable effort to identify and obtain the relevant and material facts, data, reports and other information evidencing conditions at a site that the client of the licensed site professional or certified subsurface evaluator possesses or that is otherwise readily available, and identify and obtain whatever additional data and other information as the licensed site professional or certified subsurface evaluator deems necessary to discharge the professional obligations under the provisions of P.L.2005, c.365 (C.58:10B-23.1 et seq.); and (4) disclose and explain in any workplan, report or other required document the material facts, data, other information, and qualifications and limitations known by the licensed site professional or certified subsurface evaluator which may tend to support or lead to a workplan, report or required document contrary to, or significantly different from, the workplan, report or required document completed by the licensed site professional.

k. If a licensed site professional or certified subsurface evaluator identifies a discharge or threat of discharge that in the independent professional judgment of that person meets the definition of an immediate environmental concern at a particular site at which the person is working as a licensed site professional or certified subsurface evaluator, then the licensed site professional or certified subsurface evaluator shall: (1) immediately verbally advise the client of the need to notify the department of the discharge or potential discharge; and (2) immediately notify the department of the discharge or threat of discharge by calling the department’s telephone hotline.

l. If a licensed site professional or certified subsurface evaluator obtains knowledge of a condition that in the independent professional judgment of that person requires notification to the department, then the licensed site professional or certified subsurface evaluator shall promptly notify the client of the existence of the condition and thereupon notify the department pursuant to subsection k. of this section.

m. If a licensed site professional or certified subsurface evaluator has knowledge of an action taken or a decision made by that person’s client with respect to a particular aspect of the work of the licensed site professional or certified subsurface evaluator that significantly deviates from any scope of workplan or report the licensed site professional or certified subsurface evaluator has developed to meet the requirements of P.L.2005, c.365 (C.58:10B-23.1 et seq.) or any rules or regulations adopted pursuant thereto, or an order of the department, the licensed site professional or certified subsurface evaluator shall promptly notify the client in writing of the deviation.

n. A licensed site professional or certified subsurface evaluator shall not reveal facts, data or information obtained in a professional capacity without the prior consent of the client, except as may be authorized or required by law, if the facts, data or information are claimed to be confidential by the client in a written communication to the licensed site professional or certified subsurface evaluator, and these facts, data or information are not in the public domain.

o. If subsequent to the date a licensed site professional or certified subsurface evaluator completes a report concerning a phase of remediation that person learns that material facts, data or other information existed at the time the phase of remediation was conducted which may tend to support or lead to a workplan or report contrary to, or significantly different from, the one completed, the licensed site professional or certified subsurface evaluator shall promptly notify the client in writing of these circumstances.

p. If subsequent to the date a successor licensed site professional or certified subsurface evaluator is engaged that person learns of material facts, data or other information which existed at the date of completion of a phase of remediation by a predecessor licensed site professional or certified subsurface evaluator that was not disclosed in that phase of remediation workplan or report, the successor licensed site professional or certified subsurface evaluator shall promptly notify the client in writing of these circumstances.

q. A licensed site professional or certified subsurface evaluator shall not allow the use of that person’s name by, or associate in a business venture with, any person that the licensed site professional or certified subsurface evaluator knows or should know is engaging in fraudulent or dishonest business or professional practices relating to the professional responsibilities of a licensed site professional.

r. Every licensed site professional or certified subsurface evaluator shall cooperate fully in the conduct of investigations by the department by promptly furnishing, in response to formal requests, orders or subpoenas, whatever information the department, or persons duly authorized by the department, deems necessary to perform its duties. In any investigation by the department of applications or disciplinary complaints, a licensed site professional shall not: (1) knowingly make a false statement of material fact; (2) fail to disclose a fact necessary to correct a material misunderstanding known by the licensed site professional to have arisen in the matter; (3) knowingly and materially falsify, tamper with, alter, conceal, or destroy any document, data record, remedial system, or monitoring device that is relevant to the investigation, without obtaining the prior approval of the department; or (4) knowingly allow or tolerate any employees, agents, or contractors of the licensed site professional to engage in any of the foregoing activities.

s. A licensed site professional or certified subsurface evaluator who is involved in a management or review capacity at a disposal site shall be considered jointly responsible with a second licensed site professional or certified subsurface evaluator for a violation of this code of professional conduct committed by the second licensed site professional or certified subsurface evaluator if the licensed site professional or certified subsurface evaluator: (1) orders, directs, or formally ratifies professional services or an opinion being conducted or prepared by the second licensed site professional or certified subsurface evaluator; (2) recognizes that the professional services or opinion violate an obligation or prohibition contained in this code of professional conduct; and (3) fails to take reasonable steps to attempt to avoid or mitigate the violation.

t. A licensed site professional or certified subsurface evaluator shall comply with all conditions that are imposed on that person’s license or certification as a result of a disciplinary proceeding.

u. In any communication with a client or prospective client, including but not limited to communications with respect to a proposed scope of services or proposed contract, it is the responsibility of the licensed site professional or certified subsurface evaluator to inform the client or prospective client of the relevant and material assumptions, limitations, or qualifications underlying the communication. Evidence that a licensed site professional or certified subsurface evaluator has provided the client or prospective client with timely written documentation of these assumptions, limitations, or qualifications shall be deemed by the department to have satisfied the requirements of this subsection.

v. In any communication with a client or prospective client, a licensed site professional or certified subsurface evaluator shall not state or imply, as an inducement or a threat, an ability to improperly influence a government agency or official.

w. In any description of qualifications, experience, or ability to provide services, a licensed site professional or certified subsurface evaluator shall not knowingly: (1) make a material misrepresentation of fact or law; (2) omit a fact necessary to make the description, when considered as a whole, not materially misleading; or (3) make a statement that, in the opinion of the department, is likely to create an unjustified expectation about results the licensed site professional or certified subsurface evaluator may achieve, or state or imply that the licensed site professional or certified subsurface evaluator may achieve results by means that violate the provisions of applicable environmental laws, rules or regulations, including the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).

x. A licensed site professional who becomes obligated to make any of the notifications required under the provisions of this act shall make the required notification even if that licensed site professional is discharged by the client prior to doing so.

y. A licensed site professional or certified subsurface evaluator shall not accept compensation, financial or otherwise, for professional services pertaining to a site from more than one person having significant conflicting or adverse interests unless the circumstances are fully disclosed and agreed to by all clients engaging that person with regard to that site.

z. A licensed site professional or certified subsurface evaluator shall not be a salaried employee of the person responsible for conducting the remediation for which that person is providing remediation services.

aa. A licensed site professional or certified subsurface evaluator shall not allow any ownership interest, compensation, or continued employment affect the professional services of that person to the extent that the professional services fail to meet the standards set forth in this act.

16. (New section) a. (1) Whenever, on the basis of available information, the department finds that a person is in violation of a provision of P.L. , c. (C. ) (pending before the Legislature as this bill), or any rule, regulation, plan, information request, code of conduct, or order adopted or issued pursuant thereto, or who knowingly has made any false statement, representation, or certification in any documents or information required to be submitted to the department, the department may:

(a) Revoke or suspend the license of a licensed site professional in accordance with subsection b. of this section;

(b) Bring a civil action in accordance with subsection c. of this section;

(d) Bring an action for a civil penalty in accordance with subsection e. of this section; or

(e) Assess a civil administrative penalty in accordance with subsection f. of this section.

The exercise of any of the remedies provided in this section shall not preclude recourse to any other remedy so provided.

(2) A person who purposely, knowingly, or recklessly violates a provision of this act, including making a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under this act, or by falsifying, tampering with, or rendering inaccurate any monitoring device or method required to be maintained pursuant to this act, or by failing to submit a monitoring report, or any portion thereof, required pursuant to this act, shall be guilty, upon conviction, of a crime of the third degree and shall, notwithstanding the provisions of subsection e. of this section, be subject to a fine of not less than $5,000 nor more than $75,000 per day of violation, or by imprisonment, or both.

(3) Any person who negligently violates this act, including making a false statement, representation, or certification in any application, record, or other document filed or required to be maintained under this act, or by falsifying, tampering with, or rendering inaccurate any monitoring device or method required to be maintained pursuant to this act, or by failing to submit a discharge monitoring report, or any portion thereof, required pursuant to this act, shall be guilty, upon conviction, of a crime of the fourth degree and shall, notwithstanding the provisions of subsection e. of this section, be subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment, or both.

b. (1) The department may revoke or suspend a licensed issued to a licensed site professional. The department may not revoke or suspend a license until a violator has been notified by certified mail or personal service. The notice shall: (a) identify the statutory or regulatory basis of the violation; (b) identify the specific citation of the act or omission constituting the violation; (c) identify the license to be revoked or suspended; and (d) affirm the right of the violator to a hearing on any matter contained in the notice and the procedures for requesting a hearing.

(2) A violator shall have 20 days from receipt of the notice within which to request a hearing on any matter contained in the notice, and shall comply with all procedures for requesting a hearing. Failure to submit a timely request or to comply with all procedures set forth by the department shall constitute grounds for denial of a hearing request. After a hearing and upon a finding that a violation has occurred, the department shall issue a final order revoking or suspending the license specified in the notice. If a violator does not request a hearing or fails to satisfy the statutory and administrative requirements for requesting a hearing, the notice of intent to revoke or suspend the license shall become final after the expiration of the 20-day period. If the department denies a hearing request, the notice of denial shall become a final order, revoking or suspending the license, upon receipt of the notice by the violator.

c. The department is authorized to institute a civil action in Superior Court for appropriate relief from any violation of the provisions of this act, or any rule, regulation, plan, information request, code of conduct, or order adopted or issued pursuant thereto. Such relief may include, singly or in combination, a temporary or permanent injunction.

d. Whenever the department finds that any person is in violation of any provision of this act, the department may issue an order (1) specifying the provision or provisions of this act, or the rule, regulation, or code of conduct of which the person is in violation; (2) citing the action which caused the violation; (3) requiring compliance with the provision or provisions; and (4) giving notice to the person of the person’s right to a hearing on the matters contained in the order.

e. Any person who violates the technical rules for site remediation or a court order issued pursuant thereto, or who fails to pay a civil administrative penalty in full or to agree to a schedule of payments therefor, shall be subject, upon order of a court, to a civil penalty not to exceed $50,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).

f. (1) The department may assess a civil administrative penalty of not more than $50,000 for each violation of the provisions of this act, or any rule, regulation, plan, information request, code of conduct, or order adopted or issued pursuant thereto, and each day during which each violation continues shall constitute an additional, separate and distinct offense.

Prior to assessment of a penalty under this subsection, the person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall: (a) identify the statutory or regulatory basis of the violation; (b) identify the specific citation of the act or omission constituting the violation; (c) state the basis for the amount of the civil penalties to be assessed; and (d) affirm the right of the violator to a hearing on any matter contained in the notice and the procedures for requesting a hearing.

(2) (a) A violator shall have 20 days from the receipt of the notice within which to request a hearing on any matter contained in the notice, and shall comply with all procedures for requesting a hearing. Failure to submit a timely request or to comply with all procedures set forth by the department shall constitute grounds for denial of a hearing request. After a hearing and upon a finding that a violation has occurred, the department shall issue a final order assessing the amount of the civil administrative penalty specified in the notice. If a violator does not request a hearing or fails to satisfy the statutory and administrative requirements for requesting a hearing, the notice of assessment of a civil administrative penalty shall become a final order after the expiration of the 20-day period. If the department denies a hearing request, the notice of denial shall become a final order upon receipt of the notice by the violator.

(b) Payment of the assessment is due when a final administrative enforcement order is issued or the notice becomes a final order. The authority to levy a civil administrative order is in addition to all other enforcement provisions, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department may compromise any civil administrative penalty assessed under this section in an amount and with conditions the department determines appropriate. A civil administrative penalty assessed, including a portion thereof required to be paid pursuant to a payment schedule approved by the department, which is not paid within 30 days of the date that payment of the penalty is due, shall be subject to an interest charge on the amount of the penalty, or portion thereof, which shall accrue as of the date payment is due. If the penalty is contested, no additional interest charge shall accrue on the amount of the penalty until after the date on which a final order is issued. Interest charges assessed and collectible pursuant to this subsection shall be based on the rate of interest on judgments provided in the New Jersey Rules of Court.

(3) The department may assess and recover, by civil administrative order, the costs of any investigation, cleanup or removal, and the reasonable costs of preparing and successfully enforcing a civil administrative penalty pursuant to this subsection. The assessment may be recovered at the same time as a civil administrative penalty, and shall be in addition to the penalty assessment.

g. A licensed site professional may not apply for a new license for ten years following the date of revocation of the license by the department. At the conclusion of the license revocation, the licensed site professional shall follow the application procedures for licensure in accordance with section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).

h. Upon the second revocation of license, a licensed site professional shall be disqualified from making an application for a license in this State.

i. If a person violates any of the provisions of this act, or any rule, regulation, plan, information request, code of conduct, or order adopted or issued pursuant thereto, the department may institute a civil action in a court of competent jurisdiction for injunctive or other appropriate relief to prohibit and prevent the licensed site professional from engaging in remediation activities.

17. (New section) a. Within 30 days from the receipt of notification from the department suspending or revoking a license, or receipt of an administrative order, or a notice of civil administrative penalty issued by the department pursuant to section 16 of P.L. , c. (C. ) (pending before the Legislature as this bill), the person may request an adjudicatory hearing to contest the action by submitting a written request therefor to the department. The request shall include the following information:

(1) The name, address, and telephone number of the licensee;

(2) The license number (if applicable);

(3) The licensee’s factual position on each question alleged to be at issue, its relevance to the department's decision, specific reference to contested conditions as well as suggested revised or alternative conditions;

(4) The date the licensee received the document from the department containing the decision being contested;

(5) A copy of the decision document and a list of all issues being appealed;

(6) An admission or denial of each of the findings of fact, or a statement of insufficient knowledge;

(7) The defenses to each of the findings of fact contained in the document that the licensee received from the department containing the decision being contested;

(8) Information supporting the licensee’s factual position and proposed conditions and copies of other written documents relied upon to support the request for a hearing;

(9) An estimate of the time required for the hearing, expressed in days or hours; and

(10) request, if necessary, for a barrier-free hearing location for disabled persons.

b. If a written request for a hearing is not received within 30 days from the receipt of notification from the department suspending or revoking a license, the department shall deny the request for a hearing.

c. A written request for a hearing shall be deemed to be filed with the department in accordance with the procedures set forth herein:

(1) If hand-delivered during regular business hours, it shall be deemed filed on the day delivered;

(2) If hand-delivered during non-business hours, it shall be deemed filed on the next regular business day;

(3) If mailed by placing in U.S. mail, it shall be deemed filed on the date so post-marked; and

(4) A delivery by a bonded delivery service shall be treated as a hand delivery.

d. If the licensee fails to include all the information required pursuant to subsection a. of this section, the department may deny the request for a hearing.

e. If a request for a hearing is granted, the department shall file the request for a hearing with the Office of Administrative Law. The hearing shall be held before an administrative law judge, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B‑1 et seq.), or any rules or regulations adopted pursuant thereto.

f. Pending the decision on appeal to the department a person shall not act, advertise, or otherwise make representations as being a licensed site professional.

18. (New section) The owner or operator of an industrial establishment or any other person required to perform remediation activities pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), or a discharger, a person in any way responsible for a hazardous substance, or a person otherwise liable for cleanup and removal costs pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.), shall comply with the oversight requirements established pursuant to rules and regulations adopted pursuant to the provisions of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill), unless the person is required to enter into an administrative consent order or a judicial consent order. The oversight requirements shall include but shall not be limited to, the following requirements:

a. the person shall hire a licensed site professional or subsurface evaluator certified to conduct all remediation at the site;

b. the person shall remediate all contamination at, or emanating from, the site in accordance with the technical requirements established by the department;

c. the person shall perform the remediation in accordance with the mandatory timeframes established pursuant to the provisions of section 19 of P.L. , c. (C. ) (pending before the Legislature as this bill);

d. the person shall conduct the remediation pursuant to the department's oversight;

e. the person shall establish a remediation funding source pursuant to the provisions of section 25 of P.L.1993, c.139 (C.58:10B-3);

f. the person shall pay all applicable fees and oversight costs as required by the department;

g. the person shall provide access to the department to all areas of the contaminated site; and

h. the person shall provide access to the department to all documents associated with the remediation of the contaminated site.

19. (New section) a. The owner or operator of an industrial establishment or any other person required to perform remediation activities pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), or a discharger, a person in any way responsible for a hazardous substance, or a person otherwise liable for cleanup and removal costs pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.), and the designated licensed site professional or certified subsurface evaluator shall comply with the mandatory timeframes for remediation and reporting as provided in subsection b. of this section and as established pursuant to rules and regulations adopted pursuant to the provisions of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill).

b. The department shall establish mandatory timeframes for, at a minimum, the following:

(1) The initial evaluation of the risks that the contaminated site poses to the public health and safety and to the environment;

(2) Interim remedial measures to eliminate immediate risks to the public health and safety and to the environment, and any contaminant removal or stabilization of the contaminated site necessary to properly manage the risks the contamination poses;

(3) Reports for each phase of the remediation; and

(4) Other activities necessary to effectuate timely remediation to protect the public health and safety and the environment.

c. In establishing the timeframes as required in subsection b. of this section, the department shall differentiate conditions that warrant different response times and expedited actions. When establishing timeframes as required in subsection b. of this section, the department shall take into account the following factors:

(1) the risk to the public health and safety and to the environment the contamination poses based on (a) potential and actual exposure of humans to the contamination, via direct contact, exposure to drinking water and air, and (b) the proximity of the contaminated site to wellhead protection areas, potable wells, structures where vapor intrusion could be a source of unacceptable exposure, and to sensitive populations including, but not limited to, persons in daycare facilities, educational facilities, hospitals, and nursing homes; and

(2) the complexity of the contaminated site based on media impacted, ground water contamination in bedrock and multiple aquifers, contaminant toxicity, presence of free and residual product or radiological materials, buried drums or chemical production or other high contaminant level waste in soil, the magnitude of contamination, and offsite migration of contamination.

d. The department may grant extensions from the mandatory timeframes based upon a demonstration by the person subject to this section, and the designated licensed site professional or certified subsurface evaluator, that extraordinary cause beyond the reasonable control of the person subject to the provisions of this section, exists and that the extension of time would not extend any unacceptable risk to the public health and safety or to the environment. The department may grant an extension for additional time necessary:

(1) as a result of a delay in receiving state funding for remediation, provided that there was a timely filing of the application for such funding;

(2) to obtain access to property, provided the person subject to the provisions of this section can demonstrate that access was denied, and a complaint was filed with Superior Court, in accordance with department rules; and

(3) extraordinary circumstances when the person subject to the provisions of this section can demonstrate that that person has been implementing the remediation in a timely manner.

e. The person requesting the extension of a mandatory timeframe shall specify the precise cause of any delay, the measures taken to minimize the delay, and the risks associated with the contamination, along with an explanation of how much additional time is necessary to complete the task.

f. The department may require, on a site-specific basis, the expedited performance of:

(1) a remedial investigation at a site or area of concern that poses a significant risk to the public health and safety, or to the environment, based on the complexity of the contaminated site; or

(2) a remedial action that is necessary to protect the public health and safety, or the environment.

g. If the person subject to the provisions of this section and the designated licensed site professional or certified subsurface evaluator fail to comply with the mandatory timeframes or site- specific timeframes established by the department, the person subject to the provisions of this section and the designated licensed site professional or certified subsurface evaluator shall be subject to an enforcement action. The department may also reclassify the site as a tier 1 contaminated site, and the department may evaluate the performance of licensed site professional in accordance with the licensing provisions of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).

20. (New section) For any site for which a grant, loan or other financial assistance is awarded from a public fund for the remediation, a licensed site professional or subsurface evaluator, as appropriate, shall provide written documentation to the Department of Environmental Protection of any work performed by a person other than the licensed site professional or subsurface evaluator, as appropriate. The licensed site professional or subsurface evaluator, as appropriate, shall certify that the work was properly completed in accordance with the requirements of all applicable laws, rules and regulations.

21. (New section) No person shall take retaliatory action if a licensed site professional:

a. discloses, or threatens to disclose to the department an activity, policy or practice of the licensed site professional that the licensed site professional reasonably believes; (1) is in violation of a law, or a rule or regulation adopted pursuant to law, including any violation involving deception of, or misrepresentation to, any client customer, the department or any governmental entity; or (2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation that the licensed site professional reasonably believes may defraud any client, customer, the department, or any governmental entity;

b. provides information to, or testifies before, any public body conducting an investigation, hearing, or inquiry into any violation of law, or a rule or regulation adopted pursuant to law, by the client or customer, with whom there is a business relationship, including any violation involving deception of, or misrepresentation to, any client, customer, the department or any governmental entity, or, in the case of a licensed site professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into the quality of remediation of a contaminated site; or

c. objects to, or refuses to participate in any activity, policy or practice which the licensed site professional reasonably believes; (1) is in violation of a law, or a rule or regulation adopted pursuant to law, including any violation involving deception of, or misrepresentation to, any, client, customer, the department or any governmental entity, (2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the licensed site professional reasonably believes may defraud any client, customer, the department, or any governmental entity, or (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

22. (New section) No person shall knowingly employ a person who is not a licensed site professional pursuant to the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) or who is not otherwise authorized to perform remedial activities pursuant to this act, or a business firm that has not been issued a certification of authorization pursuant to section 8 of P.L. , c. (C. ) to conduct the remediation of a contaminated site or submit any documents regarding a remediation to the department for approval on that person’s behalf. Any person violating provisions of this section shall be subject to penalties as prescribed in section 16 of P.L. , c. (C. ) (pending before the Legislature as this bill).

23. Section 6 of P.L.1976, c.141 (C.58:10-23.11e) is amended to read as follows:

6. a. Any person who may be subject to liability for a discharge which occurred prior to or after the effective date of [the act of which this act is amendatory] P.L.1976, c. 141 (C.58:10-23.11 et seq.) shall immediately notify the department. Failure to so notify shall make persons liable to the penalty provisions of section 22 of [this act] P.L.1976, c.141 (C.58:23.11u).

b. Any person who may be subject to liability for a discharge that occurred prior to or after the effective date of P.L.1976, c. 141 (C.58:10-23.11 et seq.), shall clean up and remove the discharge pursuant to rules adopted by the department, unless the department, pursuant to section 7 of P.L.1976, c.141 (C.58:10-23.11f), has directed a person who may be subject to liability for the discharge to arrange for the cleanup and removal of the discharge. If the person who may be subject to liability for the discharge fails to submit a report of the remedial action to the department within 180 days after the discharge occurred, the department may order that person to clean up and remove the discharge pursuant to rules adopted by the department. If the discharge occurred prior to the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), a report of the remedial action undertaken shall be submitted to the department no more than 180 days after the effective date of P.L. , c. (pending before the Legislature as this bill) .

(cf: P.L.1979, c.346, s.3)

24. Section 25 of P.L.1993, c.139 (C.58:10B-3) is amended to read as follows:

25. a. [The] Except as provided below, the owner or operator of an industrial establishment or any other person required to perform remediation activities pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), [or] a discharger, a person in any way responsible for a hazardous substance, or a person otherwise liable for cleanup and removal costs pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.) who has been issued a directive or an order by a State agency, who has entered into an administrative consent order with a State agency, or who has been ordered by a court to clean up and remove a hazardous substance or hazardous waste discharge pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.), or any person who voluntarily conducts a remediation, shall establish and maintain a remediation funding source in the amount necessary to pay the estimated cost of the required remediation. [A person who voluntarily undertakes a remediation pursuant to a memorandum of agreement with the department, or without the department's oversight, or who performs a remediation in an environmental opportunity zone is not required to establish or maintain a remediation funding source. A person who uses an innovative technology or who, in a timely fashion, implements an unrestricted use remedial action or a limited restricted use remedial action for all or part of a remedial action is not required to establish a remediation funding source for the cost of the remediation involving the innovative technology or permanent remedy.] A person responsible for conducting the remediation at the site of an unregulated heating oil tank, a childcare facility, an educational facility, or at any site that is classified as tier 4 pursuant to section 10 of P.L. , c. (C. ) (pending before the Legislature as this bill), is not required to establish a remediation funding source. A person required to establish a remediation funding source pursuant to this section shall provide to the department satisfactory documentation that the requirement has been met.

The remediation funding source shall be established in an amount equal to or greater than the cost estimate of the implementation of the remediation (1) as approved by the department for tier 1 sites, (2) as determined by the licensed site professional pursuant to guidance established by the department for tier 2 and tier 3 sites, (3) as provided in an administrative consent order or remediation agreement as required pursuant to subsection e. of section 4 of P.L.1983, c.330, [(3)] (4) as stated in a departmental order or directive, or [(4)] (5) as agreed to by a court, and shall be in effect for a term not less than the actual time necessary to perform the remediation at the site. Whenever the remediation cost estimate increases, the person required to establish the remediation funding source shall cause the amount of the remediation funding source to be increased to an amount at least equal to the new estimate. Whenever the remediation or cost estimate decreases, the person required to obtain the remediation funding source may file a written request to the department to decrease the amount in the remediation funding source. The remediation funding source may be decreased to the amount of the new estimate upon written approval by the department delivered to the person who established the remediation funding source and to the trustee or the person or institution providing the remediation trust, the environmental insurance policy, [or] the line of credit, the letter of credit or the surety bond, as applicable. The department shall approve the request upon a finding that the remediation cost estimate decreased by the requested amount. The department shall review and respond to the request to decrease the remediation funding source within 45 days of receipt of the request. Upon submission of a remedial action workplan that proposes to implement a restricted use remedial action or a limited restricted use remedial action, the person responsible for performing the remediation shall, on an annual basis, estimate the costs of the remediation required for 20 years after the approval of the remedial action workplan, including the costs of operation, monitoring and maintenance of the remedial action proposed and shall include those costs in the remediation funding source.

b. The person responsible for performing the remediation and who established the remediation funding source may use the remediation funding source to pay for the actual cost of the remediation. [The department may not require any other financial assurance by the person responsible for performing the remediation other than that required in this section. In the case of a remediation performed pursuant to P.L.1983, c.330, the remediation funding source shall be established no more than 14 days after the approval by the department of a remedial action workplan or upon approval of a remediation agreement pursuant to subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), unless the department approves an extension. In the case of a remediation performed pursuant to P.L.1976, c.141, the remediation funding source shall be established as provided in an administrative consent order signed by the parties, as provided by a court, or as directed or ordered by the department.] The remediation funding source shall be established (1) for tier 1 sites, no more than 60 days after departmental approval of the plan for the remedial investigation, (2) for sites subject to an administrative consent order, prior to the execution of the order, (3) for sites subject to a remediation agreement pursuant to subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), no more than 60 days after the approval of the remediation agreement; and (4) for all other sites, prior to the implementation of the remedial investigation. The establishment of a remediation funding source for that part of the remediation funding source to be established by a grant or financial assistance from the remediation fund may be established for the purposes of this subsection by the application for a grant or financial assistance from the remediation fund and satisfactory evidence submitted to the department that the grant or financial assistance will be awarded. However, if the financial assistance or grant is denied or the department finds that the person responsible for establishing the remediation funding source did not take reasonable action to obtain the grant or financial assistance, the department shall require that the full amount of the remediation funding source be established within 14 days of the denial or finding. The remediation funding source shall be evidenced by the establishment and maintenance of (1) a remediation trust fund, (2) an environmental insurance policy, issued by an entity licensed by the Department of Banking and Insurance to transact business in the State of New Jersey, to fund the remediation, (3) a line of credit from a [person or] financial institution regulated pursuant to State or federal law and satisfactory to the department authorizing the person responsible for performing the remediation to borrow money, [or] (4) a self-guarantee, (5) a letter of credit from a financial institution regulated pursuant to State or federal law and satisfactory to the department authorizing the person responsible for performing the remediation to borrow money, or (6) a surety bond guaranteeing payment, issued by an entity licensed by the Department of Banking and Insurance to transact business in the State, or by any combination thereof. Where it can be demonstrated that a person cannot establish and maintain a remediation funding source for the full cost of the remediation by a method specified in this subsection, that person may establish the remediation funding source for all or a portion of the remediation, by securing financial assistance from the Hazardous Discharge Site Remediation Fund as provided in section 29 of P.L.1993, c.139 (C.58:10B-7).

c. A remediation trust fund shall be established pursuant to the provisions of this subsection. An originally signed duplicate of the trust agreement shall be delivered to the department by certified mail within [14 days of receipt of notice from the department that the remedial action workplan or remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330 is approved] within the time as required pursuant to subsection b. of this section or as specified in an administrative consent order, civil order, or order of the department, as applicable. The remediation trust fund agreement shall conform to a model trust fund agreement as established by the department and shall be accompanied by a certification of acknowledgment that conforms to a model established by the department. The trustee shall be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or New Jersey agency.

The trust fund agreement shall provide that the remediation trust fund may not be revoked or terminated by the person required to establish the remediation funding source or by the trustee without the written consent of the department. The trustee shall release to the person required to establish the remediation funding source, or to the department or transferee of the property, as appropriate, only those moneys as the department authorizes, in writing, to be released. The person entitled to receive money from the remediation trust fund shall submit documentation to the department detailing the costs incurred or to be incurred as part of the remediation. Upon a determination by the department that the costs are consistent with the remediation of the site, the department shall, in writing, authorize a disbursement of moneys from the remediation trust fund in the amount of the documented costs.

The department shall return the original remediation trust fund agreement to the trustee for termination after the person required to establish the remediation funding source substitutes an alternative remediation funding source as specified in this section or the department notifies the person that that person is no longer required to maintain a remediation funding source for remediation of the contaminated site.

d. An environmental insurance policy shall be established pursuant to the provisions of this subsection. An originally signed duplicate of the insurance policy shall be delivered to the department by certified mail, overnight delivery, or personal service within [30 days of receipt of notice from the department that the remedial action workplan or remediation agreement, as provided in subsection e. of section 4 of P.L.1983, c.330, is approved] the time as required pursuant to subsection b. of this section, or as specified in an administrative consent order, civil order, or order of the department, as applicable. The environmental insurance policy may not be revoked or terminated without the written consent of the department. The insurance company shall release to the person required to establish the remediation funding source, or to the department or transferee of the property, as appropriate, only those moneys as the department authorizes, in writing, to be released. The person entitled to receive money from the environmental insurance policy shall submit documentation to the department detailing the costs incurred or to be incurred as part of the remediation.

e. A line of credit shall be established pursuant to the provisions of this subsection. A line of credit shall allow the person establishing it to borrow money up to a limit established in a written agreement in order to pay for the cost of the remediation for which the line of credit was established. An originally signed duplicate of the line of credit agreement shall be delivered to the department by certified mail, overnight delivery, or personal service within [14 days of receipt of notice from the department that the remedial action workplan or remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330 is approved,] the time as required pursuant to subsection b. of this section, or as specified in an administrative consent order, civil order, or order of the department, as applicable. The line of credit agreement shall conform to a model agreement as established by the department and shall be accompanied by a certification of acknowledgment that conforms to a model established by the department.

A line of credit agreement shall provide that the line of credit may not be revoked or terminated by the person required to obtain the remediation funding source or the person or institution providing the line of credit without the written consent of the department. The person or institution providing the line of credit shall release to the person required to establish the remediation funding source, or to the department or transferee of the property as appropriate, only those moneys as the department authorizes, in writing, to be released. The person entitled to draw upon the line of credit shall submit documentation to the department detailing the costs incurred or to be incurred as part of the remediation. Upon a determination that the costs are consistent with the remediation of the site, the department shall, in writing, authorize a disbursement from the line of credit in the amount of the documented costs.

The department shall return the original line of credit agreement to the person or institution providing the line of credit for termination after the person required to establish the remediation funding source substitutes an alternative remediation funding source as specified in this section, or after the department notifies the person that that person is no longer required to maintain a remediation funding source for remediation of the contaminated site.

f. A person may apply to the department to self-guarantee a remediation funding source for up to $1,000,000. [upon the submittal of] The person shall submit documentation to the department demonstrating that the estimated cost of the remediation [as estimated in the remedial action workplan, in the remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330, in an administrative consent order, or as provided in a departmental or court order, would] does not exceed [one-third] one-tenth of the [tangible net worth] equity of the person required to establish the remediation funding source, and that the person has a cash flow sufficient to assure the availability of sufficient moneys for the remediation during the time necessary for the remediation. [Satisfactory documentation of a person's capacity to self-guarantee a remediation funding source shall consist of] A person who applies to self-guarantee a remediation funding source pursuant to this subsection, shall satisfactorily document their capacity to self-guarantee by submitting audited financial statements, in which the auditor expresses an unqualified opinion, including a statement of income and expenses or similar statement of that person and the balance sheet or similar statement of assets and liabilities as used by that person for the fiscal year of the person making the application that ended closest in time to the date of the self-guarantee application[, or in] . In the case of a special purpose entity established specifically for the purpose of acquiring and redeveloping a contaminated site, and for which a statement of income and expenses is not available, the person shall submit a statement of assets and liabilities certified by a certified public accountant. The self-guarantee application shall be certified as true to the best of the applicant's information, knowledge, and belief, by the chief financial, or similar officer or employee, or general partner, or principal of the person making the self-guarantee application. The department's approval of an application to self-guarantee a remediation funding source shall be based upon a review of the financial statements provided, including, but not limited to, an evaluation of the net cash provided by operating activities included in the cash flow statement. A person shall be deemed by the department to possess the required cash flow pursuant to this section if that person's [gross receipts exceed its gross payments] net cash provided by operating activities in that fiscal year is in an amount at least equal to the estimated costs of completing the [remedial action workplan schedule] remediation activities scheduled to be performed in the 12-month period following the date on which the application for self-guarantee is made. In the event that a self-guarantee is required for a period of more than one year, applications for a self-guarantee shall be renewed annually pursuant to this subsection for each successive year. The department may establish requirements and reporting obligations to ensure that the person proposing to self-guarantee a remediation funding source meets the criteria for self-guaranteeing prior to the initiation of remedial action and until completion of the remediation.

g. (1) If the person required to establish the remediation funding source fails to perform the remediation as required, the department shall make a written determination of this fact. A copy of the determination by the department shall be delivered to the person required to establish the remediation funding source and, in the case of a remediation conducted pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), to any transferee of the property. Following this written determination, the department may perform the remediation in place of the person required to establish the remediation funding source. In order to finance the cost of the remediation the department may make disbursements from the remediation trust fund [or] , the line of credit , the letter, the surety bond guaranteeing payment, or claims upon the environmental insurance policy, or may make a demand for monies provided by a self-guarantee, as appropriate[, or, if sufficient moneys are not available from those funds, from the remediation guarantee fund created pursuant to section 45 of P.L.1993, c.139 (C.58:10B-20)].

(2) [The transferee of property subject to a remediation conducted pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), may, at any] Any time after the department's determination of nonperformance by the [owner or operator] person required to establish the remediation funding source, any other person may petition the department, in writing, with a copy being sent to the owner [and operator] of the property and the person required to establish the remediation funding source, for [authority] approval to perform the remediation at the [industrial establishment] site. The department, upon a determination that the [transferee] person who filed the petition is competent to do so, may grant that petition which shall authorize the [transferee] person to perform the remediation [as specified in an approved remedial action workplan, or to perform the activities as required in a remediation agreement,] and to avail itself of the moneys [in the remediation trust fund or line of credit or to make claims upon the environmental insurance policy for these purposes] available in the remediation funding source established by the person who failed to perform the remediation . The petition [of the transferee] shall not be granted by the department if the [owner or operator] person who established the remediation funding source continues or begins to perform its obligations within 14 days of the petition being filed with the department.

(3) After the department has begun to perform the remediation in the place of the person required to establish the remediation funding source or has granted the petition of [the transferee] another person to perform the remediation, the person required to establish the remediation funding source shall not be permitted by the department to continue its performance obligations except upon the agreement of the department or the [transferee] other person, as applicable, or except upon a determination by the department that the [transferee] other person is not adequately performing the remediation.

h. A letter of credit shall be established pursuant to the provisions of this subsection. A letter of credit shall allow a person to borrow money up to a limit established in a written agreement in order to pay for the cost of the remediation for which the letter of credit was established. An originally signed duplicate of the letter of credit agreement shall be delivered to the department by certified mail, overnight delivery, or personal service within 14 days of receipt of notice from the department that the remedial action workplan or remediation agreement as provided in subsection e. of section 4 of P.L. 1983, c. 330 (C.13:1K-9) is approved, or as specified in an administrative consent order, civil order, order of the department, or restricted use cleanup, as applicable. The letter of credit agreement shall conform to a model agreement as established by the department and shall be accompanied by a certification of acknowledgment that conforms to a model established by the department.

A letter of credit agreement shall provide that institution providing the letter of credit shall release to the person required to establish the remediation funding source, or to the department or transferee of the property as appropriate, only those moneys as the department authorizes, in writing, to be released. The person entitled to draw upon the letter of credit shall submit documentation to the department detailing the costs incurred or to be incurred as part of the remediation. Upon a determination that the costs are consistent with the remediation of the site, the department shall, in writing, authorize a disbursement from the letter of credit in the amount of the documented costs.

The department shall return the duplicate original letter of credit agreement to the institution providing the letter of credit for termination after the person required to establish the remediation funding source substitutes an alternative remediation funding source as specified in this section, or after the department notifies the person that that person is no longer required to maintain a remediation funding source for remediation of the contaminated site.

i. A surety bond for a payment guarantee shall be established pursuant to the provisions of this subsection. An originally signed duplicate of the surety bond shall be delivered to the department by certified mail within 14 days of receipt of notice from the department that the remedial action workplan or remediation agreement as provided in subsection e. of section 4 of P.L. 1983, c. 330 (C.13:1K-9) is approved or as specified in an administrative consent order, civil order, order of the department, or restricted use cleanup, as applicable. Under the terms of the bond, the surety will become liable on the bond obligation when the person establishing it fails to perform as guaranteed by the bond. Under the terms of the bond, all amounts paid by the surety under the bond will be deposited directly into the standby trust fund in accordance with instructions from the department. The surety bond guaranteeing payment shall conform to a model surety bond guaranteeing payment as established by the department and shall be accompanied by a certification of acknowledgment that conforms to a model established by the department. The surety company issuing the bond must be among those listed as acceptable sureties on federal bonds in the latest Circular 570 of the United States Department of the Treasury.

The surety bond guaranteeing payment shall provide that the insurer shall release to the person required to establish the remediation funding source, or to the department or transferee of the property, as appropriate, only those monies as the department authorizes, in writing, to be released. The person entitled to receive money from the surety bond guaranteeing payment shall submit documentation to the department detailing the costs incurred or to be incurred as part of the remediation. Upon a determination by the department that the costs are consistent with the remediation of the site, the department shall, in writing, authorize a disbursement of moneys from the remediation surety bond guaranteeing payment in the amount of the documented costs.

The department shall return the original surety bond guaranteeing payment to the insurer for termination after the person required to establish the remediation funding source substitutes an alternative remediation funding source as provided in this section or the department notifies the person that that person is no longer required to maintain a remediation funding source for remediation of the contaminated site.

j. Any person who has established a remediation funding source or financial assurance prior to the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill) shall make any changes as required by the department pursuant to the provisions of P.L. , c. (pending before the Legislature as this bill) upon the renewal date of the currently posted remediation funding source or financial assurance.

k. Upon the issuance of a no further action letter for the entire site, the department may authorize termination of the remediation funding source if an unrestricted use remedial action was implemented for the site. Upon implementation of a limited restricted use remedial action or a restricted use remedial action, the person responsible for conducting the remediation shall pay a surcharge equal to 5% of the actual cost of the remedial action, except that an owner or operator of an unregulated heating oil tank or an underground storage tank used to store heating oil for on-site consumption in a one to four family residential building or the owner of a site on which a regulated childcare facility or educational institution is located shall not be required to pay the 5% surcharge. The 5% surcharge shall be deposited into the Remediation Guarantee Fund. Upon payment of the 5% surcharge, the 1% annual surcharge shall no longer be imposed. Except as provided in this subsection, the person responsible for conducting the remediation shall make this 5% surcharge payment regardless of case type or tier and regardless of whether a remediation funding source is required to be established.

(cf: P.L.2003, c.224, s.2)

25. Section 26 of P.L.1993, c.139 (C.58:10B-4) is amended to read as follows:

26. a. There is established in the New Jersey Economic Development Authority a special, revolving fund to be known as the Hazardous Discharge Site Remediation Fund. Except as provided in section 4 of P.L.2007, c.135 (C.52:27D-130.7), moneys in the remediation fund shall be dedicated for the provision of financial assistance or grants to municipalities, counties, redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), and persons, for the purpose of financing remediation activities at sites at which there is, or is suspected of being, a discharge of hazardous substances or hazardous wastes.

b. The remediation fund shall be credited with:

(1) moneys as are appropriated by the Legislature;

(2) moneys deposited into the fund as repayment of principal and interest on outstanding loans made from the fund;

(3) any return on investment of moneys deposited in the fund;

(4) [remediation funding source surcharges imposed pursuant to section 33 of P.L.1993, c.139 (C.58:10B-11)] Deleted by amendment, P.L. , c. (pending before the Legislature as this bill);

(5) moneys deposited in the fund as repayment of recoverable grants made by the New Jersey Redevelopment Authority for brownfield redevelopment;

(6) moneys deposited into the fund from cost recovery subrogation actions; and

(7) moneys made available to the authority for the purposes of the fund.

(cf: 2007, c.135, s.1)

26. Section 33 of P.L.1993, c.139 (58:10B-11) is amended to read as follows:

33. a. There is imposed upon every person who is required to establish a remediation funding source pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3) a remediation funding source surcharge. The remediation funding source surcharge shall be in an amount equal to 1% of the required amount of the remediation funding source required by the department to be maintained. No surcharge, however, may be imposed upon [(1) that amount of the remediation funding source that is met by a self-guarantee as provided in subsection f. of section 25 of P.L.1993, c.139 (C.58:10B-3), (2)] that amount of the remediation funding source that is met by financial assistance or a grant from the remediation fund[, (3) any person who voluntarily performs a remediation pursuant to an administrative consent order, (4) any person who entered voluntarily into a memorandum of understanding with the department to remediate real property, as long as that person continues the remediation in a reasonable manner, or as required by law, even if subsequent to initiation of the memorandum of understanding, the person received an order by the department or entered into an administrative consent order to perform the remediation, (5) any person performing a remediation in an environmental opportunity zone, or (6) that portion of the cost of the remediation that is specifically for the use of an innovative technology or to implement a limited restricted use remedial action or an unrestricted use remedial action]. The surcharge shall be based on the [cost of remediation work remaining to be completed] amount of the required remediation funding source and shall be paid on an annual basis as long as the remediation continues and until (1) the Department of Environmental Protection [issues a no further action letter for the] determines that an unrestricted use remedial action has been implemented for the entire property subject to the remediation , or (2) the 5% surcharge has been paid as required pursuant to subsection k. of section 25 of P.L.1993, c.139 (C.58:10B-3). The remediation funding source surcharge shall be due and payable [within 14 days of the time of the department's approval of a remedial action workplan or signing an administrative consent order or as otherwise provided by law] upon the establishment of the remediation funding source and annually thereafter, on the date on which the remediation funding source was established . The department shall collect the surcharge and shall remit all moneys collected [to the Economic Development Authority] for deposit into the [Hazardous Discharge Site Remediation] Remediation Guarantee Fund.

b. By February 1 of each year, the department shall issue a report to the Senate Environment Committee and to the Assembly [Agriculture and Waste Management] Environment and Solid Waste Committee, or their successors, listing, for the prior calendar year, each person who owed the remediation funding source surcharge, the amount of the surcharge paid, and the total amount collected.

(cf: P.L.1997, c.278, s.16)

27. Section 35 of P.L.1993, c.139 (C.58:10B-12) is amended to read as follows:

35. a. The Department of Environmental Protection shall adopt minimum remediation standards for soil, groundwater, and surface water quality necessary for the remediation of contamination of real property. The remediation standards shall be developed to ensure that the potential for harm to public health and safety and to the environment is minimized to acceptable levels, taking into consideration the location, the surroundings, the intended use of the property, the potential exposure to the discharge, and the surrounding ambient conditions, whether naturally occurring or man-made.

Until the minimum remediation standards for the protection of public health and safety as described herein are adopted, the department shall apply public health and safety remediation standards for contamination at a site on a case-by-case basis based upon the considerations and criteria enumerated in this section.

The department shall not propose or adopt remediation standards protective of the environment pursuant to this section, except standards for groundwater or surface water, until recommendations are made by the Environment Advisory Task Force created pursuant to section 37 of P.L.1993, c.139. Until the Environment Advisory Task Force issues its recommendations and the department adopts remediation standards protective of the environment as required by this section, the department shall continue to determine the need for and the application of remediation standards protective of the environment on a case-by-case basis in accordance with the guidance and regulations of the United States Environmental Protection Agency pursuant to the "Comprehensive Environmental Response, Compensation and Liability Act of 1980," 42 U.S.C. s.9601 et seq. and other statutory authorities as applicable.

The department may not require any person to perform an ecological evaluation of any area of concern that consists of an underground storage tank storing heating oil for on-site consumption in a one to four family residential building.

b. In developing minimum remediation standards the department shall:

(1) base the standards on generally accepted and peer reviewed scientific evidence or methodologies;

(2) base the standards upon reasonable assumptions of exposure scenarios as to amounts of contaminants to which humans or other receptors will be exposed, when and where those exposures will occur, and the amount of that exposure;

(3) avoid the use of redundant conservative assumptions. The department shall avoid the use of redundant conservative assumptions by the use of parameters that provide an adequate margin of safety and which avoid the use of unrealistic conservative exposure parameters and which guidelines make use of the guidance and regulations for exposure assessment developed by the United States Environmental Protection Agency pursuant to the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980," 42 U.S.C. s.9601 et seq. and other statutory authorities as applicable;

(4) where feasible, establish the remediation standards as numeric or narrative standards setting forth acceptable levels or concentrations for particular contaminants; and

(5) consider and utilize, in the absence of other standards used or developed by the Department of Environmental Protection and the United States Environmental Protection Agency, the toxicity factors, slope factors for carcinogens and reference doses for non-carcinogens from the United States Environmental Protection Agency's Integrated Risk Information System (IRIS).

c. (1) The department shall develop residential and nonresidential soil remediation standards that are protective of public health and safety. For contaminants that are mobile and transportable to groundwater or surface water, the residential and nonresidential soil remediation standards shall be protective of groundwater and surface water. Residential soil remediation standards shall be set at levels or concentrations of contamination for real property based upon the use of that property for residential or similar uses and which will allow the unrestricted use of that property without the need of engineering devices or any institutional controls and without exceeding a health risk standard greater than that provided in subsection d. of this section. Nonresidential soil remediation standards shall be set at levels or concentrations of contaminants that recognize the lower likelihood of exposure to contamination on property that will not be used for residential or similar uses, which will allow for the unrestricted use of that property for nonresidential purposes, and that can be met without the need of engineering controls. Whenever real property is remediated to a nonresidential soil remediation standard, except as otherwise provided in paragraph (3) of subsection g. of this section, the department shall require, pursuant to section 36 of P.L.1993, c.139 (C.58:10B-13), that the use of the property be restricted to nonresidential or other uses compatible with the extent of the contamination of the soil and that access to that site be restricted in a manner compatible with the allowable use of that property.

(2) The department may develop differential remediation standards for surface water or groundwater that take into account the current, planned, or potential use of that water in accordance with the "Clean Water Act" (33 U.S.C. s.1251 et seq.) and the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.).

d. The department shall develop minimum remediation standards for soil, groundwater, and surface water intended to be protective of public health and safety taking into account the provisions of this section. In developing these minimum health risk remediation standards the department shall identify the hazards posed by a contaminant to determine whether exposure to that contaminant can cause an increase in the incidence of an adverse health effect and whether the adverse health effect may occur in humans. The department shall set minimum soil remediation health risk standards for both residential and nonresidential uses that:

(1) for human carcinogens, as categorized by the United States Environmental Protection Agency, will result in an additional cancer risk of one in one million;

(2) for noncarcinogens, will limit the Hazard Index for any given effect to a value not exceeding one.

The health risk standards established in this subsection are for any particular contaminant and not for the cumulative effects of more than one contaminant at a site.

e. Remediation standards and other remediation requirements established pursuant to this section and regulations adopted pursuant thereto shall apply to remediation activities required pursuant to the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.), the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.), P.L.1986, c.102 (C.58:10A-21 et seq.), the "Industrial Site Recovery Act," P.L.1983, c.330 (C.13:1K-6 et al.), the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), the "Comprehensive Regulated Medical Waste Management Act," P.L.1989, c.34 (C.13:1E-48.1 et seq.), the "Major Hazardous Waste Facilities Siting Act," P.L.1981, c.279 (C.13:1E-49 et seq.), the "Sanitary Landfill Facility Closure and Contingency Fund Act," P.L.1981, c.306 (C.13:1E-100 et seq.), the "Regional Low-Level Radioactive Waste Disposal Facility Siting Act," P.L.1987, c.333 (C.13:1E-177 et seq.), or any other law or regulation by which the State may compel a person to perform remediation activities on contaminated property. However, nothing in this subsection shall be construed to limit the authority of the department to establish discharge limits for pollutants or to prescribe penalties for violations of those limits pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.), or to require the complete removal of nonhazardous solid waste pursuant to law.

f. (1) A person performing a remediation of contaminated real property, in lieu of using the established minimum soil remediation standard for either residential use or nonresidential use adopted by the department pursuant to subsection c. of this section, may submit to the department a request to use an alternative residential use or nonresidential use soil remediation standard. The use of an alternative soil remediation standard shall be based upon site specific factors which may include (1) physical site characteristics which may vary from those used by the department in the development of the soil remediation standards adopted pursuant to this section; or (2) a site specific risk assessment. If a person performing a remediation requests to use an alternative soil remediation standard based upon a site specific risk assessment, that person shall demonstrate to the department that the requested deviation from the risk assessment protocol used by the department in the development of soil remediation standards pursuant to this section is consistent with the guidance and regulations for exposure assessment developed by the United States Environmental Protection Agency pursuant to the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980," 42 U.S.C.s.9601 et seq. and other statutory authorities as applicable. A site specific risk assessment may consider exposure scenarios and assumptions that take into account the form of the contaminant present, natural biodegradation, fate and transport of the contaminant, available toxicological data that are based upon generally accepted and peer reviewed scientific evidence or methodologies , and physical characteristics of the site, including, but not limited to, climatic conditions and topographic conditions. Nothing in this subsection shall be construed to authorize the use of an alternative soil remediation standard in those instances where an engineering control is the appropriate remedial action, as determined by the department, to prevent exposure to contamination.

Upon a determination by the department that the requested alternative remediation standard satisfies the department's regulations, is protective of public health and safety, as established in subsection d. of this section, and is protective of the environment pursuant to subsection a. of this section, the alternative residential use or nonresidential use soil remediation standard shall be approved by the department. The burden to demonstrate that the requested alternative remediation standard is protective rests with the person requesting the alternative standard and the department may require the submission of any documentation as the department determines to be necessary in order for the person to meet that burden.

(2) The department may, upon its own initiative, require an alternative remediation standard for a particular contaminant for a specific real property site, in lieu of using the established minimum residential use or nonresidential use soil remediation standard adopted by the department for a particular contaminant pursuant to this section. The department may require an alternative remediation standard pursuant to this paragraph upon a determination by the department, based on the weight of the scientific evidence, that due to specific physical site characteristics of the subject real property, including, but not limited to, its proximity to surface water, the use of the adopted residential use or nonresidential use soil remediation standards would not be protective , or would be unnecessarily overprotective, of public health or safety or of the environment, as appropriate.

g. The development, selection, and implementation of any remediation standard or remedial action shall ensure that it is protective of public health, safety, and the environment, as applicable, as provided in this section. In determining the appropriate remediation standard or remedial action that shall occur at a site, the department and any person performing the remediation, shall base the decision on the following factors:

(1) Unrestricted use remedial actions, limited restricted use remedial actions and restricted use remedial actions shall be allowed except that unrestricted use remedial actions and limited restricted use remedial actions shall be preferred over restricted use remedial actions. [The department, however, may not disapprove the use of a restricted use remedial action or a limited restricted use remedial action so long as the selected remedial action meets the health risk standard established in subsection d. of this section, and where, as applicable, is protective of the environment.] The department shall give a higher priority to any site where the person responsible for conducting the remediation proposes to implement an unrestricted use remedial action. The department shall require the use of an unrestricted use remedial action, a presumptive remedy, or an enhanced remedy at a site where there is new residential construction, new construction involving a sensitive population such as a childcare facility or a school, or where there is a change in use of the site to residential, school purposes, or childcare purposes. The choice of the remedial action to be implemented shall be made by the person performing the remediation in accordance with regulations adopted by the department and that choice of the remedial action shall be approved by the department if all the criteria for remedial action selection enumerated in this section, as applicable, are met. The department may not require a person to compare or investigate any alternative remedial action as part of its review of the selected remedial action The department shall have the authority to disapprove the selection of a remedial action for a site on which the proposed remedial action will render the real property inappropriate for future use;

(2) Contamination may, upon the department's approval, be left onsite at levels or concentrations that exceed the minimum soil remediation standards for residential use if the implementation of institutional or engineering controls at that site will result in the protection of public health, safety and the environment at the health risk standard established in subsection d. of this section and if the requirements established in subsections a., b., c. and d. of section 36 of P.L.1993, c.139 (C.58:10B-13) are met . The department may require the removal or treatment of contaminated material that poses an acute hazard in the event of failure of an engineering control;

(3) Real property on which there is soil that has not been remediated to the residential soil remediation standards, or real property on which the soil, groundwater, or surface water has been remediated to meet the required health risk standard by the use of engineering or institutional controls, may be developed or used for residential purposes, or for any other similar purpose, if (a) all areas of that real property at which a person may come into contact with soil are remediated to meet the residential soil remediation standards [and] , (b) it is clearly demonstrated that for all areas of the real property, other than those described in subparagraph (a) above, engineering and institutional controls can be implemented and maintained on the real property sufficient to meet the health risk standard as established in subsection d. of this section , and (c) a presumptive remedy or an enhanced remedy as established by the department has been approved as required in paragraph (1) of this subsection;

(4) Remediation shall not be required beyond the regional natural background levels for any particular contaminant. The department shall develop regulations that set forth a process to identify background levels of contaminants for a particular region. For the purpose of this paragraph "regional natural background levels" means the concentration of a contaminant consistently present in the environment of the region of the site and which has not been influenced by localized human activities;

(5) Remediation shall not be required of the owner or operator of real property for contamination coming onto the site from another property owned and operated by another person, unless the owner or operator is the person who is liable for cleanup and removal costs pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.);

(6) Groundwater that is contaminated shall not be required to be remediated to a level or concentration for any particular contaminant lower than the level or concentration that is migrating onto the property from another property owned and operated by another person;

(7) The technical performance, effectiveness and reliability of the proposed remedial action in attaining and maintaining compliance with applicable remediation standards and required health risk standards shall be considered. In reviewing a proposed remedial action, the department shall also consider the ability of the owner or operator to implement the proposed remedial action within a reasonable time frame without jeopardizing public health, safety or the environment;

(8) The use of a remedial action for soil contamination that is determined by the department to be effective in its guidance document created pursuant to section 38 of P.L.1993, c.139 (C.58:10B-14), is presumed to be an appropriate remedial action if it is to be implemented on a site in the manner described by the department in the guidance document and applicable regulations and if all of the conditions for remedy selection provided for in this section are met. The burden to prove compliance with the criteria in the guidance document is with the person performing the remediation;

(9) (Deleted by amendment, P.L.1997, c.278).

The burden to demonstrate that a remedial action is protective of public health, safety and the environment, as applicable, and has been selected in conformance with the provisions of this subsection is with the person proposing the remedial action.

The department may require the person performing the remediation to conduct expanded public participation or to supply the information required pursuant to this subsection , as is necessary for the department to make a determination.

h. (1) The department shall adopt regulations which establish a procedure for a person to demonstrate that a particular parcel of land contains large quantities of historical fill material. Upon a determination by the department that large quantities of historic fill material exist on that parcel of land, there is a rebuttable presumption that the department shall not require any person to remove or treat the fill material in order to comply with applicable health risk or environmental standards. In these areas the department shall establish by regulation the requirement for engineering or institutional controls that are designed to prevent exposure of these contaminants to humans, that allow for the continued use of the property, that are less costly than removal or treatment, which maintain the health risk standards as established in subsection d. of this section, and, as applicable, are protective of the environment. The department may rebut the presumption only upon a finding by the preponderance of the evidence that the use of engineering or institutional controls would not be effective in protecting public health, safety, and the environment. The department may not adopt any rule or regulation that has the effect of shifting the burden of rebutting the presumption. For the purposes of this paragraph "historic fill material" means generally large volumes of non-indigenous material, no matter what date they were emplaced on the site, used to raise the topographic elevation of a site, which were contaminated prior to emplacement and are in no way connected with the operations at the location of emplacement and which include, but are not limited to, construction debris, dredge spoils, incinerator residue, demolition debris, fly ash, and non-hazardous solid waste. Historic fill material shall not include any material which is substantially chromate chemical production waste or any other chemical production waste or waste from processing of metal or mineral ores, residues, slags or tailings.

(2) The department shall develop recommendations for remedial actions in large areas of historic industrial contamination. These recommendations shall be designed to meet the health risk standards established in subsection d. of this section, and to be protective of the environment and shall take into account the industrial history of these sites, the extent of the contamination that may exist, the costs of remedial actions, the economic impacts of these policies, and the anticipated uses of these properties. The department shall issue a report to the Senate Environment Committee and to the Assembly Agriculture and Waste Management Committee, or their successors, explaining these recommendations and making any recommendations for legislative or regulatory action.

(3) The department may not, as a condition of allowing the use of a nonresidential use soil remediation standard, or the use of institutional or engineering controls, require the owner of that real property, except as provided in section 36 of P.L.1993, c.139 (C.58:10B-13), to restrict the use of that property through the filing of a deed easement, covenant, or condition.

i. The department may not require a remedial action workplan to be prepared or implemented or engineering or institutional controls to be imposed upon any real property unless sampling performed at that real property demonstrates the existence of contamination above the applicable remediation standards.

j. Upon the approval by the department of a remedial action workplan, or similar plan that describes the extent of contamination at a site and the remedial action to be implemented to address that contamination, the department may not subsequently require a change to that workplan or similar plan in order to compel a different remediation standard due to the fact that the established remediation standards have changed; however, the department may compel a different remediation standard if the difference between the new remediation standard and the remediation standard approved in the workplan or other plan differs by an order of magnitude. The limitation to the department's authority to change a workplan or similar plan pursuant to this subsection shall only apply if the workplan or similar plan is being implemented in a reasonable timeframe, as may be indicated in the approved remedial action workplan or similar plan.

k. Notwithstanding any other provisions of this section, all remediation standards and remedial actions that involve real property located in the Pinelands area shall be consistent with the provisions of the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.), any rules and regulations promulgated pursuant thereto, and with section 502 of the "National Parks and Recreation Act of 1978," 16 U.S.C. s.471i; and all remediation standards and remedial actions that involve real property located in the Highlands preservation area shall be consistent with the provisions of the "Highlands Water Protection and Planning Act," P.L.2004, c.120 (C.13:20-1 et al.), and any rules and regulations and the Highland regional master plan adopted pursuant thereto.

l. Upon the adoption of a remediation standard for a particular contaminant in soil, groundwater, or surface water pursuant to this section, the department may amend that remediation standard only upon a finding that a new standard is necessary to maintain the health risk standards established in subsection d. of section 35 of P.L.1993, c.139 (C.58:10B-12) or to protect the environment, as applicable. The department may not amend a public health based soil remediation standard to a level that would result in a health risk standard more protective than that provided for in subsection d. of section 35 of P.L.1993, c.139 (C.58:10B-12).

m. Nothing in P.L.1993, c.139 shall be construed to restrict or in any way diminish the public participation which is otherwise provided under the provisions of the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.).

n. Notwithstanding any provision of subsection a. of section 36 of P.L.1993, c.139 (C.58:10B-13) to the contrary, the department may not require a person intending to implement a remedial action at an underground storage tank facility storing heating oil for on-site consumption at a one to four family residential dwelling to provide advance notice to a municipality prior to implementing that remedial action.

o. A person who has remediated a site pursuant to the provisions of this section, who was liable for the cleanup and removal costs of that discharge pursuant to the provisions of paragraph (1) of subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), and who remains liable for the discharge on that site due to a possibility that a remediation standard may change, undiscovered contamination may be found, or because an engineering control was used to remediate the discharge, shall maintain with the department a current address at which that person may be contacted in the event additional remediation needs to be performed at the site. The requirement to maintain the current address shall be made part of the conditions of the no further action letter issued by the department.

(cf: P.L.2004, c.120, s.81)

28. Section 36 of P.L.1993, c.139 (C.58:10B-13) is amended to read as follows:

36. a. When real property is remediated to a nonresidential soil remediation standard or engineering or institutional controls are used in lieu of remediating a site to meet an established remediation standard for soil, groundwater, or surface water, the department shall, as a condition of the use of that standard or control measure:

(1) require the establishment of any engineering or institutional controls the department determines are reasonably necessary to prevent exposure to the contaminants, require maintenance, as necessary, of those controls, and require the restriction of the use of the property in a manner that prevents exposure;

(2) require, with the consent of the owner of the real property, the recording with the office of the county recording officer, in the county in which the property is located, a notice to inform prospective holders of an interest in the property that contamination exists on the property at a level that may statutorily restrict certain uses of or access to all or part of that property, a delineation of those restrictions, a description of all specific engineering or institutional controls at the property that exist and that shall be maintained in order to prevent exposure to contaminants remaining on the property, and the written consent to the notice by the owner of the property. The notice shall be recorded in the same manner as are deeds and other interests in real property. The department shall develop a uniform deed notice that ensures the proper filing of the deed notice. The provisions of this paragraph do not apply to restrictions on the use of surface water or groundwater;

(3) require a notice to the governing body of each municipality in which the property is located that contaminants will exist at the property above residential use soil remediation standards or any other remediation standards and specifying the restrictions on the use of or access to all or part of that property and of the specific engineering or institutional controls at the property that exist and that shall be maintained;

(4) require, when determined necessary by the department, that signs be posted at any location at the site where access is restricted or in those areas that must be maintained in a prescribed manner, to inform persons on the property that there are restrictions on the use of that property or restrictions on access to any part of the site;

(5) require that a list of the restrictions be kept on site for inspection by governmental enforcement officials; and

(6) require a person, prior to commencing a remedial action, to notify the governing body of each municipality wherein the property being remediated is located. The notice shall include, but not be limited to, the commencement date for the remedial action; the name, mailing address and business telephone number of the person implementing the remedial action, or his designated representative; and a brief description of the remedial action.

b. If the owner of the real property does not consent to the recording of a notice pursuant to paragraph (2) of subsection a. of this section, the department shall require the use of a residential soil remediation standard in the remediation of that real property.

c. Whenever engineering or institutional controls on property as provided in subsection a. of this section are no longer required, or whenever the engineering or institutional controls are changed because of the performance of subsequent remedial activities, a change in conditions at the site, or the adoption of revised remediation standards, the department shall require that the owner or operator of that property record with the office of the county recording officer a notice that the use of the property is no longer restricted or delineating the new restrictions. The department shall also require that the owner or operator notify, in writing, the municipality in which the property is located of the removal or change of the restrictive use conditions.

d. The owner or lessee of any real property, or any person operating a business on real property, which has been remediated to a nonresidential use soil remediation standard or on which the department has allowed engineering or institutional controls for soil, groundwater, or surface water to protect the public health, safety, or the environment, as applicable, shall maintain the engineering or institutional controls as required by the department. An owner, lessee, or operator who takes any action that results in the improper alteration or removal of engineering or institutional controls or who fails to maintain the engineering or institutional controls as required by the department, shall be subject to the penalties and actions set forth in section 22 of P.L.1976, c.141 (C.58:10-23.11u) and, where applicable, shall be liable for any additional remediation and damages pursuant to the provisions of section 8 of P.L.1976, c.141 (C.58:10-23.11g). The provisions of this subsection shall not apply if a notification received pursuant to subsection b. of this section authorizes all restrictions or controls to be removed from the subject property.

e. Notwithstanding the provisions of any other law, or any rule, regulation, or order adopted pursuant thereto to the contrary, whenever contamination at a property is remediated in compliance with any soil, or any groundwater or surface water remediation standards that were in effect or approved by the department at the completion of the remediation, no person, except as otherwise provided in this section, shall be liable for the cost of any additional remediation that may be required by a subsequent adoption by the department of a more stringent remediation standard for a particular contaminant. Upon the adoption of a regulation that amends a remediation standard, or where the adoption of a regulation would change a remediation standard which was otherwise approved by the department, only a person who is liable to clean up and remove that contamination pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g), and who does not have a defense to liability pursuant to subsection d. of that section, shall be liable for any additional remediation costs necessary to bring the site into compliance with the new remediation standards except that no person shall be so liable unless the difference between the new remediation standard and the level or concentration of a contaminant at the property differs by an order of magnitude and that person did not implement an unrestricted use remedial action. The department may compel a person who is liable for the additional remediation costs to perform additional remediation activities to meet the new remediation standard except that a person may not be compelled to perform any additional remediation activities on the site if that person can demonstrate that the existing engineering or institutional controls on the site prevent exposure to the contamination and that the site remains protective of public health , safety and the environment pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12). The burden to prove that a site remains protective is on the person liable for the additional remediation costs. A person liable for the additional remediation costs who is relying on engineering or institutional controls to make a site protective, shall comply with the provisions of subsections a., b., c. and d. of this section.

Nothing in the provisions of this subsection shall be construed to affect the authority of the department, pursuant to subsection f. of this section, to require additional remediation on real property where engineering controls were implemented.

Nothing in the provisions of this subsection shall limit the rights of a person, other than the State, or any department or agency thereof, to bring a civil action for damages, contribution, or indemnification as provided by statutory or common law.

f. Whenever the department approves or has approved the use of engineering controls for the remediation of soil, groundwater, or surface water, to protect public health, safety or the environment, the department may require additional remediation of that site only if the engineering controls no longer are protective of public health, safety, or the environment.

g. Whenever the department approves or has approved the use of engineering or institutional controls for the remediation of soil, groundwater, or surface water, to protect public health, safety or the environment, the department shall inspect that site at least once every five years in order to ensure that the engineering and institutional controls are being properly maintained and that the controls remain protective of public health and safety and of the environment.

h. A property owner of a site on which a deed notice has been recorded shall notify any person who intends to excavate on the site of the nature and location of any contamination existing on the site and of any conditions or measures necessary to prevent exposure to contaminants.

(cf: P.L. 1997, c.278, s.18)

29. Section 45 of P.L.1993, c.139 (C.58:10B-20) is amended to read as follows:

45. a. There is created in the Department of Environmental Protection [and Energy] a special, revolving fund to be known as the Remediation Guarantee Fund. The fund shall be credited with the 5% surcharge imposed pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3), the remediation funding source surcharge imposed pursuant to section 33 of P.L.1993, c.139 (C.58:10B-11), all moneys appropriated to it by law, all moneys collected in subrogation actions to recover moneys expended from the fund, and all moneys earned from the investment of the moneys in the fund.

b. [The Commissioner of Environmental Protection and Energy shall appoint and supervise an administrator of the fund. The administrator shall be the chief executive of the fund, shall approve all disbursements of moneys from the fund, and shall ensure the proper deposit of all moneys authorized to be deposited into the fund.] Deleted by amendment, P.L. , c. (pending before the Legislature as this bill) .

c. (1) Moneys in the fund shall be used by the Department of Environmental Protection [and Energy] to remediate, or contract for the remediation of, any real property for which a person was required to establish a remediation funding source pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3) and where that person fails to conduct or properly conduct that remediation.

(2) Moneys in the fund may be disbursed by the department as grants to persons, homeowner associations, or government entities:

(a) who own property for which the department has issued a no further action letter for a restricted use remedial action and (i) there is a failure of the remedy, (ii) the person, homeowner or government entity did not cause the discharge of the hazardous substance that is the subject of the no further action letter, (iii) the person, homeowner or government entity maintained the engineering control that was implemented as part of the remedial action at the site, and (iv) there is no financially viable or existing responsible party. The person, homeowner association, or government entity may use only use the grant money to evaluate and repair the failed remedy;

(b) who own property for which the department has issued a no further action letter for an unrestricted use or limited restricted use remedial action and a remediation standard upon which the no further action letter was based has changed by an order of magnitude or more, to conduct remediation activities to determine if the remedial action is no longer protective of public health, safety and the environment due to the change in the remediation standard. Persons, homeowner associations, or government entities may obtain grants from the fund to implement another remedial action at the property pursuant to this paragraph, provided that the remediation activities reveal that the remedial action is no longer protective of public health, safety and the environment due to the change in the remediation standard;

(c) who own property for which the department has issued a no further action letter for a restricted use remedial action where a remediation standard upon which the no further action letter was based has changed by an order of magnitude or more, to conduct remediation activities to determine if the remedial action is no longer protective of public health, safety and the environment due to the change in the remediation standard provided that the person, homeowners association or government entity did not cause the discharge of the hazardous substance that is the subject of the no further action letter and there is no financially viable or existing responsible party. Persons, homeowner associations, or government entities may use money from the fund to implement another remedial action at the property provided that the remediation activities reveal that the remedial action is no longer protective of public health, safety and the environment due to the change in the remediation standard.

d. Any moneys expended by the department from the fund pursuant to this section shall constitute a debt of (1) the person required to establish the remediation funding source if the person fails to perform the remediation and the person bars the department from gaining access to the moneys in the remediation funding source to conduct the remediation, and (2) against the discharger if the discharger implemented a restricted use remedial action at the site. The debt shall constitute a lien on all property owned by the person required to establish the remediation funding source and against the discharger to the same extent and in the same manner as provided for liens in subsection f. of section 7 of P.L.1976, c.141 (C.58:10-23.11f).

e. Whenever the department expends moneys from the fund for a remediation, it shall have a cause of action to recover from the person required to establish the remediation funding source or from any other person liable for the discharge pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g) triple the amount of moneys expended for the remediation.

f. Moneys in the fund may be appropriated to pay for the costs to administer the fund except that those appropriations may not exceed the amount of moneys deposited into the fund earned from the investment of moneys in the fund.

g. The balance of the fund shall not exceed $100,000,000. When the balance of the fund equals $100,000,000, all surcharges collected pursuant to subsection k. of section 25 of P.L.1993, c.139 (C.58:10B-3) and the remediation funding source surcharge imposed pursuant to 33 of P.L.1993, c.139 (C.58:10B-11) shall be deposited into the Hazardous Discharge Site Remediation Fund and shall be used for the purposes of that fund. When the balance of the Remediation Guarantee Fund is reduced to $100,000, all surcharges shall be deposited in the Remediation Guarantee Fund.

(cf: P.L.1993,c.139, s.45)

30. This act shall take effect immediately.

STATEMENT

This bill would establish a licensed site professional program within the Department of Environmental Protection (DEP). No more than 90 days after the effective date, any submissions concerning the remediation of a contaminated site shall be signed and certified by a licensed site professional, or by a certified subsurface evaluator. The bill also authorizes the issuance of a temporary site remediation professional license that would be effective upon issuance and would remain effective for 180 days after the adoption of rules establishing permanent standards for the licensed site professional program. The bill establishes a code of professional conduct for licensed site professionals and subsurface evaluators and provisions for license suspension or revocation. Further, the bill provides for penalties for violations of the act.

The bill would also establish criteria for a ranking system for contaminated sites. The bill provides for varying levels of oversight depending on the ranking of the site. The bill allows the DEP to audit a licensed site professional at least once during the three year licensing period and provides for the audit of cases.

The bill would also make changes to the provisions of the "Brownfield and Contaminated Site Remediation Act" to change the oversight requirements for persons who clean up contaminated sites and the requirements for the establishment of a remediation funding source. The bill would impose a 1% annual surcharge on persons responsible for conducting a remediation and would require the payment of a surcharge of 5% of the total cost of the remedial action when a limited restricted use or a restricted use remedial action is implemented. The surcharges would be deposited in the Remediation Guarantee Fund and may be used by the department to conduct remediation when a person fails to do so. The moneys in the fund may also be awarded as grants by the department to an individual, homeowner association or government entity for additional remediation activities required due to changes in the remediation standards, or when an engineering control is no longer protective of the public health, safety and the environment. The bill would also make numerous other changes to the laws concerning the cleanup of contaminated sites.