ASSEMBLY ENVIRONMENT AND SOLID WASTE COMMITTEE
ASSEMBLY, No. 5293
with committee amendments
STATE OF NEW JERSEY
DATED: JUNE 10, 2019
The Assembly Environment and Solid Waste Committee reports favorably and with committee amendments Assembly Bill No. 5293. This bill, as amended by the committee, would make various changes to the laws governing the remediation of contaminated sites and licensed site remediation professionals (LSRPs).
The bill would require a plaintiff, in any action for damages for personal injuries, wrongful death, or property damage resulting from an alleged act of malpractice or negligence by an LSRP, to provide each defendant with an affidavit of merit. (An affidavit of merit is a sworn statement from an appropriate licensed person stating that there exists a reasonable probability that the care, skill, or knowledge exercised or exhibited in the practice or work that is the subject of the complaint fell outside acceptable professional or occupational standards.) If a plaintiff fails to file an affidavit of merit, the case would be dismissed for failure to state a cause of action.
The bill would authorize the Superior Court and the municipal courts to impose a civil penalty for a violation of the “Spill Compensation and Control Act,” to be assessed in accordance with the “Penalty Enforcement Law of 1999.”
The bill makes several changes to laws governing the establishment of remediation funding sources, and when and how those remediation funding sources may be used, dispersed, and released. The bill provides that a person may establish, as a remediation funding source, a surety bond from an entity that is listed as an acceptable surety on federal bonds in United States Treasury Department Circular 570. The bill also establishes requirements for utilizing a surety bond as a remediation funding source.
The bill would require the Department of Environmental Protection (DEP) to encourage the use of green and sustainable practices during the remediation of a contaminated site. The use of green and sustainable practices would not alter the requirement that the remediation be protective of the public health and safety and of the environment.
Current law requires a person responsible for conducting a remediation to provide written notice of the remediation to the municipality and county in which the contaminated site is located prior to initiating the remedial action. The bill would require that such written notice be provided earlier in the site remediation process – prior to the initiation of the remedial investigation. The bill would also expand the types of documents a person responsible for conducting a remediation is required to provide to a municipality or county, upon request.
The bill would require a person responsible for conducting a remediation to respond to any inquiries from the public regarding the status of the remediation that the person receives or that the DEP receives and forwards to that person. Under the bill, the person’s response must include either: (1) information or documents that are responsive to the public inquiry; or (2) a written summary status report for the remediation in a form and manner as determined by the DEP. A person responsible for conducting a remediation would be permitted to designate an LSRP to respond to public inquiries under the bill.
Current law provides that an “immediate environmental concern” includes “confirmed contamination that has migrated into an occupied structure…” The bill would remove the word “occupied,” so that the definition reads, in relevant part, “confirmed contamination that has migrated into a structure…” Under existing law, the DEP has established expedited timeframes to address immediate environmental concerns. However, under the bill, no further remediation relative to an immediate environmental concern that affects an unoccupied structure would be required if a person responsible for conducting the remediation provides to the DEP a written certification from the property owner that the building: (1) is not occupied; (2) will not be occupied; and (3) will be demolished.
Under existing law, if an LSRP identifies a condition that, in the LSRP’s independent professional judgment, is an immediate environmental concern, then the LSRP must, among other things, immediately verbally advise the person responsible for conducting the remediation of that person’s duty to notify the DEP. The bill would require an LSRP to also notify the person responsible for conducting the remediation, in writing, of the person’s duty to notify the DEP of the condition.
The bill provides that, if an LSRP who is retained to perform remediation at a site or any portion of a site obtains specific knowledge that a discharge has occurred at any location on the site, the LSRP must notify the person responsible for conducting the remediation and the DEP.
The bill makes certain changes to the licensing requirements for LSRPs. Under current law, an applicant for an LSRP license must demonstrate, among other things, that the applicant has the requisite number of years of full-time professional experience in the field of site remediation, of which five years must have occurred in the State, and at least three years must have occurred in the State immediately prior to submission of the application. The bill would change this requirement to provide that an applicant must have worked at least three years in the State within the five years immediately prior to submission of the application, to account for applicants who may have been absent from work for personal reasons.
Current law specifies the crimes and other offenses that disqualify a person from becoming an LSRP. This bill would expand that list to include any crime involving breach of trust, and any crime or offense that would qualify the person for registration on the State’s sex offender registry, or any other crime involving moral turpitude. Under the bill, an applicant for an LSRP license would need to demonstrate that the person has not had a professional certification revoked, and has not surrendered a professional license or professional certification in response to a disciplinary investigation, within the previous 10 years.
The bill provides that a person who is not an LSRP may not perform remediation unless the remediation is managed, supervised, or periodically reviewed and evaluated by an LSRP. The bill specifies that an LSRP, when providing professional services for the remediation of a contaminated site, must apply the rules and regulations adopted by the Site Remediation Professional Licensing Board (board), and any other applicable rules and regulations concerning the remediation.
The bill specifies that an LSRP may not certify any document submitted to the DEP unless the LSRP believes that the information in the submission is true, accurate, and complete. The bill would also explicitly prohibit an LSRP from knowingly making any false statement, representation, or certification in any document or information required to be submitted to the DEP or the board.
The bill provides that an LSRP is prohibited from facilitating, aiding, assisting, or cooperating with any person in retaining or arranging for the retention of any person who is not an LSRP to perform remediation, unless the remediation is managed, supervised, or periodically reviewed and evaluated by an LSRP retained for that purpose, and the DEP has been notified of the retention. Additionally, under the bill, an LSRP would be prohibited from managing, supervising, performing, engaging, or participating in a remediation unless: (1) the LSRP has been retained by a person responsible for conducting the remediation, and the DEP has been notified of the retention; or (2) the remediation is being managed, supervised, or performed by another LSRP retained by the person responsible for conducting the remediation, and the DEP has been notified of the retention of the other LSRP.
The bill requires a person who is issued a remedial action permit for the operation, maintenance, and inspection of engineering or institutional controls and related systems installed as part of a remedial action to retain an LSRP to manage, supervise, or perform the requirements of the permit for the duration of the permit.
Under the bill, if a person responsible for conducting a remediation fails to meet certain conditions, the DEP would not undertake direct oversight of the contaminated site if the person demonstrates, and the DEP finds, that: (1) the person was unable to meet the applicable timeframe because the person was unable to enter the contaminated site because the person does not own the property, and the person took all appropriate and timely action to gain access to the site; or (2) the contaminated site is subject to federal oversight, the person has made timely submissions to the DEP, and the person was unable to meet the applicable timeframe due to the performance of additional review by the DEP.
The bill provides that, when a contaminated site is subject to direct oversight, the requirements of direct oversight run with the site, regardless of who owns the property, and regardless of whether there is a transfer of ownership of the property.
The bill authorizes the DEP to modify the requirements of direct oversight if: (1) the person responsible for conducting the remediation demonstrates financial hardship that prevents the performance of the remediation due to the imposition of direct oversight; or (2) there is a public emergency, as declared by the State or federal government, that resulted in a delay in meeting the mandatory or expedited site-specific timeframe or other condition that triggered direct oversight. The DEP would also be authorized to modify the requirements of direct oversight for a contaminated site if the DEP makes a written determination that the modification is in the public interest and protective of the public health and safety and the environment. The DEP would be required to publish its written determination, including the reasons for its determination, on the DEP’s Internet website, and solicit and consider public comments on the proposed modification.
The bill also authorizes the DEP, prior to a change in ownership of a contaminated site, to enter into an administrative consent order with the prospective purchaser of the contaminated site providing for the modification of the requirements of direct oversight, with certain exceptions. The DEP would be authorized to reinstate the direct oversight requirements that it modifies under the bill if, after the modification, the DEP finds that the person responsible for conducting the remediation failed to comply with any applicable timeframe, administrative consent order, or any law, rule, or regulation concerning site remediation.
The bill makes certain changes to the definition of the term “remediation,” used in various existing site remediation laws. The bill also adds a definition for the term “retained” in the “Site Remediation Reform Act,” and makes consistent the use of that term throughout that law.
Lastly, the bill deletes various references in the site remediation laws to the term “memorandum of agreement.”
The committee amendments to the bill:
(1) revise the definition of the term “remediation” in section 3 of P.L.1983, c.330 (C.13:1K-8) to make it consistent with other laws, by specifying that “remediation” does not include the payment of compensation for damage to, or loss of, natural resources;
(2) specify that a person responsible for conducting a remediation is required to provide to a municipality, upon request, any other workplan, report, or validated data required by the DEP pursuant to law, rule, or regulation;
(3) clarify that a person responsible for conducting a remediation is required to respond to any written or email inquiries from the public regarding the status of the remediation that the person receives, or that the DEP receives and forwards to the person;
(4) specify that the status report that a person responsible for conducting remediation may provide in response to a public inquiry is a written summary status report;
(5) amend the definition of the term “immediate environmental concern” in section 2 of P.L.2009, c.60 (C.58:10C-2) to provide that it includes “confirmed contamination that has migrated into a structure or a confined space…”;
(6) remove language providing that a person can be disqualified from becoming an LSRP for “offenses” involving moral turpitude, and instead provide that a person can be disqualified only for “crimes” involving moral turpitude;
(7) specify that a person may be disqualified from becoming an LSRP if a professional certification is revoked within the previous 10 years, as opposed to any certification;
(8) provide that, when the DEP, pursuant to the bill, modifies the requirement of direct oversight due to a public emergency, that public emergency does not need to be the result of a natural disaster;
(9) provide that the DEP may not enter into a pre-purchaser administrative consent order to modify the requirements of direct oversight with any person who: (a) has discharged a hazardous substance at the contaminated site, is in any way responsible for a hazardous substance at the site, or is otherwise liable for cleanup and removal costs at the site, (b) has owned or operated the contaminated site, or (c) is a predecessor, successor, subsidiary, partner, shareholder, assign, trustee in bankruptcy, responsible corporate official, or receiver appointed pursuant to a proceeding in law or equity, to any person described in subparagraphs (a) and (b) above; and
(10) make technical corrections to the bill.