SENATE ENVIRONMENT COMMITTEE
STATEMENT TO
SENATE COMMITTEE SUBSTITUTE FOR
SENATE, No. 1897
STATE OF NEW JERSEY
DATED: FEBRUARY 26, 2009
The Senate Environment Committee reports favorably a Senate Committee Substitute for Senate Bill No. 1897.
This bill would establish a program for the licensing of site remediation professionals and would make changes to the laws concerning the remediation of contaminated sites.
The bill establishes a Site Remediation Professional Licensing Board that would oversee the licensing, continuing education, and professional conduct of site remediation professionals. The board would consist of 13 members: the Commissioner of Environmental Protection; the State Geologist; six licensed site remediation professionals; three members of Statewide environmental organizations, one of whom would be a licensed site remediation professional; one member of the business community; and one member of the academic community. The bill establishes standards for the education, training and experience to be required of a licensed site remediation professional and requires the board to develop license requirements and procedures, examinations and continuing education requirements. Until the board is established, the bill authorizes the Department of Environmental Protection (DEP) to issue temporary licenses. The bill establishes standards for the professional conduct for licensed site remediation professionals and provisions for license suspension or revocation. Further, the bill provides for penalties for violations.
The bill requires an owner or operator of an industrial establishment subject to the provisions of the "Industrial Site Recovery Act," the discharger of a hazardous substance or a person in any way responsible for a hazardous substance pursuant to the provisions of subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), or the owner or operator of an underground storage tank regulated pursuant to the provisions of P.L.1986, c.102 (C.58:10A-21 et seq.), that has discharged a hazardous substance, to remediate the discharge of a hazardous substance.
Any person who initiates a remediation of a contaminated site at least 180 days after the date of enactment of the bill into law must hire a licensed site remediation professional to perform the remediation. For those sites where the remediation has been initiated prior to the date of enactment of the bill into law, the person responsible for conducting the remediation is not required to hire a licensed site remediation professional, except under limited circumstances. However, the bill provides that no later than three years after the date of enactment of the bill, all remediations, no matter when initiated, must be performed using a licensed site remediation professional.
The bill would require the department to establish mandatory remediation time frames, and expedited site specific timeframes when necessary. Under the bill, the licensed site remediation professional would be responsible for conducting the remediation without the prior approval of the department. The licensed site remediation professional is required under the bill to make decisions concerning the remediation of a contaminated site in order to meet health risk and environmental standards established pursuant to law, remediation standards adopted by the department, indoor air standards, as applicable, adopted by the Department of Health and Senior Services, and any other applicable standards adopted pursuant to law. The licensed site remediation professional must follow the technical standards for site remediation adopted by the DEP by rule and regulation, must follow mandatory remediation timeframes and expedited site specific timeframes adopted under this bill, must choose presumptive remedies established under this bill for sites to be used for residential purposes or for child care centers, public or private schools or charter schools, and must follow technical guidelines. Finally, the bill provides that when there is no specific requirement provided by the technical standards for site remediation adopted by the department, and guidelines issued by the department are not appropriate or necessary, in the professional judgment of the licensed site remediation professional, to meet the remediation requirements, the licensed site remediation professional may use relevant guidance from the federal Environmental Protection Agency or other states and other relevant, applicable, and appropriate methods and practices that ensure the protection of the public health and safety, and of the environment. The bill requires that when other guidance is used, the justification for such use must be set forth in the relevant submittal.
Upon the completion of the remediation, the licensed site remediation professional would issue a determination, called a response action outcome, that the site has been remediated in accordance with all applicable statutes, rules and regulations. The response action outcome would be issued to the person conducting the remediation and filed with the department.
The bill adds a new term - “final remediation document” – to existing law that would include both a response action outcome issued pursuant to the provisions of the bill and a no further action letter as issued under current law. The bill would amend the liability provisions in the “Spill Compensation and Control Act” to provide the same liability protection to recipients of a response action outcome as is currently provided under the law to recipients of a no further action letter. In addition, recipients of a response action outcome would be deemed, by operation of law, to have received a covenant not to sue. The department will not issue a covenant not to sue after the issuance of licenses to site remediation professionals, except that the department may issue a covenant not to sue when it issues a no further action letter for a remediation of a discharge from an unregulated heating oil tank.
The bill would establish a permit program to regulate the operation, maintenance, and inspection of engineering and institutional controls and related systems installed as part of a remedial action at a contaminated site.
The bill would require the department to inspect all documents submitted by a licensed site remediation professional concerning a remediation. The department may provide for additional review of a document if the professional did not comply with professional standards, there are deficiencies, errors or omissions that result in the inability to determine if the remediation will be protective of public health, safety and the environment, or if the remediation is not protective of public health, safety or the environment. Further, the bill provides for mandatory DEP review of a submission based upon certain criteria, or for a discretionary review. At a minimum, the department is required to perform additional review of at least 10 percent of the documents submitted annually. The bill requires the board to audit the conduct and submissions of at least 10 percent of all licensed site remediation professionals annually. Finally, the bill authorizes the department to invalidate a response action outcome under certain circumstances.
The bill requires the department to undertake direct oversight of a remediation when: the person responsible for conducting the remediation has a history of noncompliance with the laws concerning remediation that includes at least two enforcement actions after the date of enactment of the bill into law during any five year period concerning a remediation; the person has failed to meet a mandatory remediation timeframe or an expedited site specific timeframe; or the person, prior to the date of enactment of the bill into law, has failed to complete the remedial investigation of the entire contaminated site 10 years after the discovery of a discharge at the site and has failed to complete the remedial investigation of the entire contaminated site within five years after the date of enactment of the bill into law. The bill would authorize the department to undertake direct oversight of a remediation when: the contamination at the site includes chromate chemical production waste; the department determines that more than one environmentally sensitive natural resource has been damaged by contamination from the site; the site has contributed to sediments contaminated by polychlorinated biphenyl, mercury, arsenic, or dioxin in a surface water body; or the site is ranked by the department in the category requiring the highest priority pursuant to the ranking system developed by the department. For any site subject to direct oversight by the department, the bill would require that: the department review each document submitted by a licensed site remediation professional and approve or deny the submission; a feasibility study be performed and submitted to the department for approval; the department select the remedial action for the site; the person responsible for conducting the remediation establish a remediation trust fund in the amount of the estimated cost of the remediation; all disbursements of funds from the remediation trust fund receive prior approval by the department; all submissions prepared by the licensed site remediation professional concerning the remediation be provided simultaneously to the department and the person responsible for conducting the remediation; and the person responsible for conducting the remediation implement a public participation plan approved by the department to solicit public comment from members of the surrounding community concerning the remediation of the site.
The bill also makes changes to the “Brownfield and Contaminated Site Remediation Act” and makes numerous other changes to the laws concerning the cleanup of contaminated sites to reflect the establishment of the licensed site remediation professional program. In addition, the bill makes changes to the Hazardous Discharge Site Remediation Fund and the Remediation Guarantee Fund.
The bill also amends current law regarding the selection and implementation of a remedial action. For any remediation initiated one year after the date of enactment of the bill into law, the department would require the use of an unrestricted use remedial action, a presumptive remedy or an alternative remedy as provided in the bill, at a site or area of concern where new construction is proposed for residential purposes, for use as a licensed child care center, or as a public school, private school or charter school, or where there will be a change in the use of the site to residential, child care, or public school, private school, or charter school purposes or another purpose that involves use by a sensitive population. For any remediation initiated on or after the date of enactment of the bill into law, the department may require the use of an unrestricted use remedial action or a presumptive remedy as provided in guidelines adopted by the department, for a site or area of concern that is to be used for residential, child care, or public school, private school, or charter school purposes or another purpose that involves use by a sensitive population. The bill also requires the department, by rule or regulation, to establish presumptive remedies to be required on any site or area of concern to be used for residential purposes, as a child care center, or for use as a public school, private school, or charter school. In addition, the bill provides that the department may disapprove the selection of a remedial action for a site on which the proposed remedial action will render the property unusable for future redevelopment or for recreational use, and the department may also require the treatment or removal of contaminated material that would pose an acute health or safety hazard in the event of failure of an engineering control. Further, under the bill, the construction of single family residences, public schools, private schools, charter schools, or child care centers would be prohibited on a landfill that undergoes a remediation if engineering controls are required for the management of landfill gas or leachate.
The bill would amend the statute of limitations for the recovery by the State of natural resource damages to provide that no cause of action shall be deemed to have accrued until the completion of the remedial action for the entire contaminated site or the entire sanitary landfill. Under current law, a cause of action accrues upon the completion of the remedial investigation for the contaminated site or the sanitary landfill. The bill provides, however, that this change would not extend a limitations period that has expired prior to the date of enactment of the bill into law.
As reported by the committee, this committee substitute is identical to the committee substitute reported by the Assembly Environment and Solid Waste Committee for Assembly Bill No. 2962.