[First Reprint]

ASSEMBLY, No. 2724

 

STATE OF NEW JERSEY

 

INTRODUCED FEBRUARY 10, 1997

 

 

By Assemblymen DiGAETANO, DORIA and Zisa

 

 

An Act concerning the remediation of contaminated sites amending and supplementing P.L.1976, c.141, P.L.1993, c.139 and P.L.1960, c.183, amending P.L.1983, c.303, P.L.1995, c.413, P.L.1970, c.33 and P.L.1983, c.330 and making appropriations.

 

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

 

    1. (New section) Sections 23 through 43 and section 45 of P.L.1993, c.139 (C.58:10B-1 et seq.), as may be amended and supplemented, shall be known and may be cited as the "Brownfields Redevelopment Act."

 

    2. (New section) a. The Department of Environmental Protection shall investigate and determine the extent of contamination of aquifers in this State for the purpose of determining the appropriate method of remedial action needed to address that contamination. The department shall prioritize its investigation of aquifers giving the highest priority to those aquifers underlying urban or industrial areas that are known or suspected of having large areas of contamination. The information derived from the investigation shall be made available to the public by entering it into the department's existing geographic information system, making this information available on the system and making copies of any maps and data available to the public. The functions required pursuant to this section shall be considered a 1[site remediation] departmental1 obligation of the State. The department may charge a reasonable fee for the reproduction of the maps and data, which fee shall reflect the cost of their reproduction.

    b. Upon completion of an investigation of an aquifer by the department and upon the 1[it's]1 determination1by the department1 of the extent of contamination of an aquifer, a person performing a remediation may rely upon that information for that person's performance of a remediation.

 

    1[3. (New section) The Department of Environmental Protection, in cooperation with the Department of Community Affairs, Department of Transportation, the Department of Labor and Department of Commerce and Economic Development, shall obtain data and information relevant to the economic redevelopment of present or former industrial or commercial areas in the State that are now abandoned or underutilized and at which there is located large areas of contaminated property in need of remediation. The data obtained shall be made available to the public by entering it into the Department of Environmental Protection's existing geographic information system, making this information available on the system and making copies of any maps and data available to the public. The data and its integration into the geographic information system shall be designed to assist the State, local governmental entities and other persons in making decisions concerning the remediation and redevelopment of contaminated properties. The collection and integration of the data shall be considered a site remediation obligation of the State. The department may charge a reasonable fee for the reproduction of the maps and data, which fee shall reflect the cost of their reproduction.]1

 

    1[4. (New Section) a. There is established the Brownfields Environmental Risk Communication Council. The council shall be comprised of nine members who shall have experience in site remediation processes or the assessment and communication of health and environmental risks associated with site remediations. The members shall include the Commissioner of Environmental Protection or a representative, a representative from the Environmental and Occupational Safety and Health Institute, a representative from the New Jersey Institute of Technology, a representative from a public interest environmental organization, a person employed by a municipality of this State, a representative from the financial community, a person employed as an environmental consultant, a member of industry engaged in contaminated site redevelopment as a responsible party and a person employed as a public health official. The members of the council, other than the Commissioner, shall be appointed by the Governor with the advice and consent of the Senate. All of the members shall be appointed and qualified within six months of the enactment of P.L. , c. (C. ) (now pending before the Legislature as this bill).

    b. Members of the council shall serve terms of two years or until a successor has been appointed and qualified. Members of the council may be reappointed. Members of the council may be removed for cause. Vacancies in the council shall be filled in the same manner as the original appointments were made.

    c. Members of the council shall serve without compensation, but may be reimbursed for all reasonable expenses incurred in the performance of their duties.

    d. The council shall organize as soon as may be practicable after the appointment and qualification of a majority of its members. The members of the council shall select a chairperson, vice-chairperson and secretary from among its members. A majority of the membership of the council shall constitute a quorum for the transaction of council business. Action may be taken and motions and resolutions adopted by the council at any meeting thereof by the affirmative vote of a majority of the full membership of the council. The council shall meet regularly as it may determine and shall also meet at the call of the chairperson of the council or the Governor.]1

 

    1[5.] 3.1 (New Section) 1[ It shall be the duty of the council to] The Department of Environmental Protection shall1:

    a. Prepare materials for dissemination to the public that explain the environmental and health risks associated with site remediations in general and which are designed to assist local governments and the public in assessing the risks associated with particular site remediation projects;

    b. Serve as an informational resource for county improvement authorities who are involved in remediating and redeveloping contaminated redevelopment areas and for municipalities and residents of this State who may be impacted by the remediation or redevelopment of contaminated real property regardless of who is undertaking the remediation or redevelopment;

    c. Work with residents and municipalities to form neighborhood informational groups whose purpose is to research, understand and disseminate information in neighborhoods concerning the public health and environmental risks associated with site remediations and redevelopment, as well as the economic benefits to be gained;

    1[d. Advise the Department of Environmental Protection concerning public risk communication involving site remediation;]1 and

    1[e.]d.1 Make recommendations to the Legislature and the Governor in order to improve the public understanding, perception and risk associated with site remediations in the State.

 

    1[6. (New Section) The council shall be entitled to call to its assistance and avail itself of the services of employees of any State, county or municipal department, authority, board, bureau, commission or agency or any public institution of higher education in the State, as it may require and as may be made available to it for the purpose of carrying out its duties. The council may hire consultants and employ such professional, clerical and other staff and incur such traveling and other miscellaneous expenses as it may deem necessary in order to perform its duties, and as may be within the limits of funds appropriated or otherwise made available to it for those purposes.]1

 

    1[7. (New section) There is appropriated to the Brownfields Environmental Risk Communication Council the sum of $150,000 from the New Jersey Spill Compensation Fund for the purposes for which the council was established.]1

 

    1[8.] 4.1 (New section) a. Whenever 1, following the effective date of this act,1 the Department of Environmental Protection1[ has issued] issues1 a no further action letter pursuant to a remediation, it shall also issue to the person performing the remediation 1that generated that letter1 a covenant not to sue 1tied directly to the area remediated or addressed as defined within the no further action letter1 . The covenant not to sue shall be consistent with the remedial action performed and with any conditions and limitations contained in the no further action letter. The covenant 1, which must be executed by the department and by the person performing the remediation in order to become effective,1 remains effective only for as long as the real property for which the covenant was issued continues to comply with the conditions of the no further action letter. Upon a finding by the department that real property or a portion thereof to which a covenant not to sue pertains no longer complies with the conditions of the no further action letter, the department shall provide notice of that fact to the person responsible for maintaining compliance with the no further action letter. The department 1[shall] may1 allow the person a reasonable time to comply with the terms of the original no further action letter. 1[If the person fails to comply within the allocated time period, and the non-compliance results in an unacceptable risk to human health or the environment, the department may issue an order revoking the covenant not to sue] If the person fails to come into compliance within the time period, the department may invoke the provisions of the covenant not to sue, permitting revocation of the covenant to sue1.

    A covenant not to sue shall contain the following, as applicable:

    (1) A provision releasing the person who undertook the remediation from all civil liability to the State to perform any additional remedial activities; and,

    (2) If the remediation involves the use of engineering or institutional controls:

    (a) a provision requiring the person 1, during the person's period of ownership1 to maintain those controls, conduct periodic monitoring for compliance, and submit to the department, 1[as appropriate] on a biennial basis1, a certification that the engineering and institutional controls are being properly maintained and continue to be protective of public health and safety of the environment 1. The certification shall state the underlying facts and shall include the results of any tests or procedures to support the certification1; 1[and]1

    (b) a provision revoking the covenant if the engineering or institutional controls are not being maintained or are no longer in place 1 ; and

    (c) a provision barring the person or persons to whom the covenant not to sue benefits from making a claim against the New Jersey Spill Compensation Fund and the Sanitary Landfill Facility Contingency Fund for any costs or damages relating to the real property covered by the covenant not to sue1.

    b. Unless a covenant not to sue issued under this section is revoked by the department, the covenant shall remain effective. The covenant not to sue shall apply to all successors in ownership of the property 1and to all persons who lease the property or who engage in operations on the property1.

    c. A covenant not to sue shall not be applicable to the extent that a person is liable under statutory law for contamination discovered subsequent to the issuance of the no further action letter but which contamination existed prior to the issuance of the no further action letter or for any change in a remediation standard.

    d. 1[The department shall issue a covenant not to sue to a person performing a remediation if the department did not approve that person's request to perform some remedial effort and subsequent environmental or public health issues arise from the condition which would have been addressed by the person's proposed remedial action.] If a covenant not to sue is revoked, liability for any additional remediation shall not be applied retroactively to any person other than the person liable for the discharge of a hazardous substance or who is in any way responsible for that hazardous substance pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g) for whom the covenant remained in effect during that person's ownership, tenancy, or operation of the property.

    e. For any person liable for the discharge of a hazardous substance or who is in any way responsible for that hazardous substance 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, a covenant not to sue shall not apply to liability for (1) contamination discovered subsequent to the issuance of the no further action letter but which contamination existed prior to the issuance of the no further action letter, (2) any change in a remediation standard, or (3) any contamination emanating due to a failed engineering control.

    f. Notwithstanding subsection a. of this section, a covenant not to sue shall only bar a claim for natural resource damages against any person who is entitled to a defense to liability pursuant to subsection d. of section 8 of P.L.1976, c.141 (C.58:10-23.11g).

    g. A covenant not to sue shall not apply to any discharge that occurs subsequent to the issuance of the no further action letter which was the basis of the issuance of that covenant1.

 

    1[9.] 5.1 (New section) a. The Environmental Risk Assessment and Risk Management Study Commission shall, within three months of the enactment of P.L. , c. (C. ) (now pending before the Legislature as this bill) issue its final report as required pursuant to section 47 of P.L.1993, c.139. If the commission fails to 1[adopt these regulations]issue its final report1 within the prescribed time period, the Senate Environment Committee and the Assembly Agriculture and Waste Management Committee, or their successors, are instructed to hold a joint public hearing to investigate why the final report was not adopted within the prescribed time period.

    b. The Department of Environmental Protection shall, within 1[one year] eighteen months1 following the 1[Legislature's response to the recommendations of] issuance of the final report of1 the Environmental Risk Assessment and Risk Management Study Commission, and after soliciting and receiving input from interested stakeholders, adopt minimum remediation standards for soil, groundwater, and surface water quality as required pursuant to section 35 of P.L. 1993, c.139 (C.58:10B-12) and 1[technical remediation guidance]rules and regulations1 as required in subsection a. or section 24 of P.L. 1993, c.139 (C.58:10B-2), as amended by P.L. , c. (C. ) (now pending before the Legislature as this bill). To facilitate the process of soliciting input, the department shall assemble a work group comprised of stakeholders or their representatives to assist in the process of developing the remediation standards. If the department fails to adopt these regulations 1[and guidance]1 within the prescribed time period, the Senate Environment Committee and the Assembly Agriculture and Waste Management Committee, or their successors, are instructed to hold a joint public hearing to investigate why the regulations and guidance were not adopted within the prescribed time period.

    c. The department shall, within three months of the enactment of P.L. , c. (C. ) (now pending before the Legislature as this bill), issue the report concerning strict, joint and several liability as required pursuant to section 48 of P.L.1993, c.139. If the department fails to issue this report within the prescribed time period, the Senate Environment Committee and the Assembly Agriculture and Waste Management Committee, or their successors, are instructed to hold a joint public hearing to investigate why the report was not issued within the prescribed time period.

    d. The department shall, within one year of the enactment of P.L. , c. (C. ) (now before the Legislature as this bill), develop recommendations for remedial actions in large areas of historic contamination and issue its report to the Legislature as required pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12). If the department fails to issue its report within the prescribed time period, the Senate Environment Committee and the Assembly Agriculture and Waste Management Committee, or their successors, are instructed to hold a joint public hearing to investigate why the report was not issued within the prescribed time period.

    e. The department shall, within six months of the enactment of P.L. , c. (C. ) (now pending before the Legislature as this bill), issue a report to the Governor and the Legislature providing an evaluation, recommendations and a plan of action for developing and implementing a certification program and developing a privatization program for persons engaging in the remediation of contaminated sites. In preparing this report, the commissioner shall review the certification programs for persons engaging in the remediation of contaminated sites implemented by other states which may be relevant. If the department fails to issue this evaluation, along with the recommendations and plan, within the prescribed time period, the Senate Environmental Committee and the Assembly Agriculture and Waste Management Committee, or their successors, are instructed to hold a joint public hearing to investigate why the evaluation, recommendations and plan were not issued within the prescribed time period.

    f. For the purposes of carrying out their charge under this section, the committees shall have all the powers conferred pursuant to Chapter 13 of Title 52 of the Revised Statutes.

    g. 1[There shall be established in the department an office of Brownfields Redevelopment Initiatives. The function of this office shall be to facilitate and expedite the investigation and remediation of brownfields sites. Those sites selected by the department shall be submitted and endorsed by the municipality in which the site is located. The office shall take the necessary actions consistent with the provisions of this act required to streamline the remediation of these sites, including permit coordination, evaluation of technical approaches to site remediation and implementation of practical remediation efforts. The department shall report annually to the Legislature on the actions and achievements of this office.]The department shall facilitate and expedite the remediation of brownfield sites. Those sites selected by the department shall be submitted to and endorsed by the municipality in which the site is located. The department shall take the necessary actions consistent with the provisions of this act required to streamline the remediation of these sites. including permit coordination, evaluation of technical approaches to site remediation and implementation of practical remediation efforts.1

 

    1[10.] 6.1 Section 12 of P.L.1970, c.33 (C.13:1D-9) is amended to read as follows:

    12. The department shall formulate comprehensive policies for the conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution of the environment of the State. The department shall, in addition to the powers and duties vested in it by this act or by any other law, have the power to:

    a. Conduct and supervise research programs for the purpose of determining the causes, effects and hazards to the environment and its ecology;

    b. Conduct and supervise Statewide programs of education, including the preparation and distribution of information relating to conservation, environmental protection and ecology;

    c. Require the registration of persons engaged in operations which may result in pollution of the environment and the filing of reports by them containing such information as the department may prescribe to be filed relative to pollution of the environment, all in accordance with applicable codes, rules or regulations established by the department;

    d. Enter and inspect any building or place for the purpose of investigating an actual or suspected source of pollution of the environment and ascertaining compliance or noncompliance with any codes, rules and regulations of the department. Any information relating to secret processes concerning methods of manufacture or production, obtained in the course of such inspection, investigation or determination, shall be kept confidential, except this information shall be available to the department for use, when relevant, in any administrative or judicial proceedings undertaken to administer, implement, and enforce State environmental law, but shall remain subject only to those confidentiality protections otherwise afforded by federal law and by the specific State environmental laws and regulations that the department is administering, implementing and enforcing in that particular case or instance. In addition, this information shall be available upon request to the United States Government for use in administering, implementing, and enforcing federal environmental law, but shall remain subject to the confidentiality protection afforded by federal law. If samples are taken for analysis, a duplicate of the analytical report shall be furnished promptly to the person suspected of causing pollution of the environment;

    e. Receive or initiate complaints of pollution of the environment, including thermal pollution, hold hearings in connection therewith and institute legal proceedings for the prevention of pollution of the environment and abatement of nuisances in connection therewith and shall have the authority to seek and obtain injunctive relief and the recovery of fines and penalties in summary proceedings in the Superior Court;

    f. Prepare, administer and supervise Statewide, regional and local programs of conservation and environmental protection, giving due regard for the ecology of the varied areas of the State and the relationship thereof to the environment, and in connection therewith prepare and make available to appropriate agencies in the State technical information concerning conservation and environmental protection, cooperate with the Commissioner of Health in the preparation and distribution of environmental protection and health bulletins for the purpose of educating the public, and cooperate with the Commissioner of Health in the preparation of a program of environmental protection;

    g. Encourage, direct and aid in coordinating State, regional and local plans and programs concerning conservation and environmental protection in accordance with a unified Statewide plan which shall be formulated, approved and supervised by the department. In reviewing such plans and programs and in determining conditions under which such plans may be approved, the department shall give due consideration to the development of a comprehensive ecological and environmental plan in order to be assured insofar as is practicable that all proposed plans and programs shall conform to reasonably contemplated conservation and environmental protection plans for the State and the varied areas thereof;

    h. Administer or supervise programs of conservation and environmental protection, prescribe the minimum qualifications of all persons engaged in official environmental protection work, and encourage and aid in coordinating local environmental protection services;

    i. Establish and maintain adequate bacteriological, radiological and chemical laboratories with such expert assistance and such facilities as are necessary for routine examinations and analyses, and for original investigations and research in matters affecting the environment and ecology;

    j. Administer or supervise a program of industrial planning for environmental protection; encourage industrial plants in the State to undertake environmental and ecological engineering programs; and cooperate with the State Departments of Health, Labor, and Commerce and Economic Development in formulating rules and regulations concerning industrial sanitary conditions;

    k. Supervise sanitary engineering facilities and projects within the State, authority for which is now or may hereafter be vested by law in the department, and shall, in the exercise of such supervision, make and enforce rules and regulations concerning plans and specifications, or either, for the construction, improvement, alteration or operation of all public water supplies, all public bathing places, landfill operations and of sewerage systems and disposal plants for treatment of sewage, wastes and other deleterious matter, liquid, solid or gaseous, require all such plans or specifications, or either, to be first approved by it before any work thereunder shall be commenced, inspect all such projects during the progress thereof and enforce compliance with such approved plans and specifications;

    l. Undertake programs of research and development for the purpose of determining the most efficient, sanitary and economical ways of collecting, disposing or utilizing of solid waste;

    m. Construct and operate, on an experimental basis, incinerators or other facilities for the disposal of solid waste, provide the various municipalities and counties of this State, the Board of Public Utilities, and the Division of Local Government Services in the Department of Community Affairs with statistical data on costs and methods of solid waste collection, disposal and utilization;

    n. Enforce the State air pollution, water pollution, conservation, environmental protection, waste and refuse disposal laws, rules and regulations, including the making and signing of a complaint and summons for their violation by serving the summons upon the violator and thereafter filing the complaint promptly with a court having jurisdiction;

    o. Acquire by purchase, grant, contract or condemnation, title to real property, for the purpose of demonstrating new methods and techniques for the collection or disposal of solid waste;

    p. Purchase, operate and maintain, pursuant to the provisions of this act, any facility, site, laboratory, equipment or machinery necessary to the performance of its duties pursuant to this act;

    q. Contract with any other public agency or corporation incorporated under the laws of this or any other state for the performance of any function under this act;

    r. With the approval of the Governor, cooperate with, apply for, receive and expend funds from, the federal government, the State Government, or any county or municipal government or from any public or private sources for any of the objects of this act;

    s. Make annual and such other reports as it may deem proper to the Governor and the Legislature, evaluating the demonstrations conducted during each calendar year;

    t. Keep complete and accurate minutes of all hearings held before the commissioner or any member of the department pursuant to the provisions of this act. All such minutes shall be retained in a permanent record, and shall be available for public inspection at all times during the office hours of the department;

    u. Require any person subject to a lawful order of the department, which provides for a period of time during which such person subject to the order is permitted to correct a violation, to post a performance bond or other security with the department in such form and amount as shall be determined by the department. Such bond need not be for the full amount of the estimated cost to correct the violation but may be in such amount as will tend to insure good faith compliance with said order. The department shall not require such a bond or security from any public body, agency or authority. In the event of a failure to meet the schedule prescribed by the department, the sum named in the bond or other security shall be forfeited unless the department shall find that the failure is excusable in whole or in part for good cause shown, in which case the department shall determine what amount of said bond or security, if any, is a reasonable forfeiture under the circumstances. Any amount so forfeited shall be utilized by the department for the correction of the violation or violations, or for any other action required to insure compliance with the order [.]; and

    v. Encourage, direct and aid in coordinating State, regional and local plans, efforts and programs concerning the remediation and reuse of former industrial or commercial properties that are currently underutilized or abandoned and at which there has been, or is perceived to have been, a discharge, or threat of a discharge, of a hazardous substance. For the purposes of this subsection, "underutilized property" shall not include properties undergoing a reasonably timely remediation or redevelopment process.

(cf: P.L.1984, c.5, s.1)

 

    1[11.] 7.1 Section 4 of P.L.1983, c.330 (C.13:1K-9) is amended to read as follows:

    4. a. The owner or operator of an industrial establishment planning to close operations or transfer ownership or operations shall notify the department in writing, no more than five days subsequent to closing operations or of its public release of its decision to close operations, whichever occurs first, or within five days after the execution of an agreement to transfer ownership or operations, as applicable. The notice to the department shall: identify the subject industrial establishment; describe the transaction requiring compliance with P.L.1983, c.330 (C.13:1K-6 et al.); state the date of the closing of operations or the date of the public release of the decision to close operations as evidenced by a copy of the appropriate public announcement, if applicable; state the date of execution of the agreement to transfer ownership or operations and the names, addresses and telephone numbers of the parties to the transfer, if applicable; state the proposed date for closing operations or transferring ownership or operations; list the name, address, and telephone number of an authorized agent for the owner or operator; and certify that the information submitted is accurate. The notice shall be transmitted to the department in the manner and form required by the department. The department may, by regulation, require the submission of any additional information in order to improve the efficient implementation of P.L.1983, c.330.

    b. (1) Subsequent to the submittal of the notice required pursuant to subsection a. of this section, the owner or operator of an industrial establishment shall, except as otherwise provided by P.L.1983, c.330 or P.L.1993, c.139 (C.13:1K-9.6 et al.), remediate the industrial establishment. The remediation shall be conducted in accordance with this guidance, criteria, procedures, and time schedules established by the department.

    (2) The owner or operator shall attach a copy of any approved negative declaration, approved remedial action workplan, no further action letter, or remediation agreement approval to the contract or agreement of sale or agreement to transfer or any option to purchase which may be entered into with respect to the transfer of ownership or operations. In the event that any sale or transfer agreements or options have been executed prior to the approval of a negative declaration, remedial action workplan, no further action letter, or remediation agreement, these documents, as relevant, shall be transmitted by the owner or operator, by certified mail, overnight delivery, or personal service, prior to the transfer of ownership or operations, to all parties to any transaction concerning the transfer of ownership or operations, including purchasers, bankruptcy trustees, mortgagees, sureties, and financiers.

    (3) The preliminary assessment, site investigation, remedial investigation, and remedial action for the industrial establishment shall be performed and implemented by the owner or operator of the industrial establishment, except that any other party may assume that responsibility pursuant to the provisions of P.L.1983, c.330.

    c. The owner or operator of an industrial establishment shall, subsequent to closing operations, or of its public release of its decision to close operations, or prior to transferring ownership or operations except as otherwise provided in subsection e. of this section, as applicable, submit to the department for approval a proposed negative declaration or proposed remedial action workplan. Except as otherwise provided in section 6 of P.L.1983, c.330 (C.13:1K-11), and sections 13, 16, 17 and 18 of P.L.1993, c.139 (C.13:1K-11.2, C.13:1K-11.5, C.13:1K-11.6 and C.13:1K-11.7), the owner or operator of an industrial establishment shall not transfer ownership or operations until a negative declaration or a remedial action workplan has been approved by the department or the conditions of subsection e. of this section for remediation agreements have been met and until, in cases where a remedial action workplan is required to be approved or a remediation agreement has been approved, a remediation funding source, as required pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3), has been established.

    d. (1) Upon the submission of the results of either the preliminary assessment, site investigation, remedial investigation, or remedial action, where applicable, which demonstrate that there are no discharged hazardous substances or hazardous wastes at the industrial establishment 1in violation of the applicable remediation standards selected consistent with the intended use of that site1, or that have migrated from or are migrating from the industrial establishment, in violation of the applicable remediation standards selected consistent with the intended use of the site, the owner or operator may submit to the department for approval a proposed negative declaration as provided in subsection c. of this section.

    (2) After the submission and review of the information submitted pursuant to a preliminary assessment, site investigation, remedial investigation, or remedial action, as necessary, the department shall, within 45 days of submission of a complete and accurate negative declaration, approve the negative declaration, or inform the owner or operator of the industrial establishment that a remedial action workplan or additional remediation shall be required. The department shall approve a negative declaration by the issuance of a no further action letter.

    e. The owner or operator of an industrial establishment, who has submitted a notice to the department pursuant to subsection a. of this section, may transfer ownership or operations of the industrial establishment prior to the approval of a negative declaration or remedial action workplan upon application to and approval by the department of a remediation agreement. The owner or operator requesting a remediation agreement shall submit the following documents: (1) an estimate of the cost of the remediation that is approved by the department; (2) a certification of the statutory liability of the owner or operator pursuant to P.L.1983, c.330 to perform and to complete a remediation of the industrial establishment in the manner and time limits provided by the department in regulation and consistent with all applicable laws and regulations; however, nothing in this paragraph shall be construed to be an admission of liability, or to impose liability on the owner or operator, pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.) or pursuant to any other statute or common law; (3) evidence of the establishment of a remediation funding source in an amount of the estimated cost of the remediation and in accordance with the provisions of section 25 of P.L.1993, c.139 (C.58:10B-3); (4) a certification that the owner or operator is subject to the provisions of P.L.1983, c.330, including the liability for penalties for violating the act, defenses to liability and limitations thereon, the requirement to perform a remediation as required by the department, allowing the department access to the industrial establishment as provided in section 5 of P.L.1983, c.330 (C.13:1K-10), and the requirement to prepare and submit any document required by the department relevant to the remediation of the industrial establishment; and (5) evidence of the payment of all applicable fees required by the department.

    The department may require in the remediation agreement that all plans for and results of the preliminary assessment, site investigation, remedial investigation, and the implementation of the remedial action workplan, prepared or initiated subsequent to the transfer of ownership or operations, be submitted to the department, for review purposes only, at the completion of each phase of the remediation.

    The department shall [adopt regulations establishing] 1[develop guidance identifying]adopt regulations establishing1 the manner in which the documents required pursuant to paragraphs (1) through (5), inclusive, of this subsection shall be submitted. The department shall approve the application for the remediation agreement upon the complete and accurate submission of the documents required to be submitted pursuant to this subsection. The [regulations] 1[guidance] regulations1 shall include a sample form of the certifications. Approval of a remediation agreement shall not affect an owner's or operator's right to avail itself of the provisions of section 6 of P.L.1983, c.330 (C.13:1K-11), of section 13, 14, 15, 16, 17, or 18 of P.L.1993, c.139 (C.13:1K-11.2, C.13:1K-11.3, C.13:1K-11.4, C.13:1K-11.5, C.13:1K-11.6 or C.13:1K-11.7), or of the other provisions of this section.

    f. An owner or operator of an industrial establishment may perform a preliminary assessment, site investigation, or remedial investigation for a 1[surface or subsurface]1 soil, surface water, or groundwater remediation without the prior submission to or approval of the department, except as otherwise provided in a remediation agreement required pursuant to subsection e. of this section. However, the plans for and results of the preliminary assessment, site investigation, and remedial investigation may, at the discretion of the owner or operator, be submitted to the department for its review and approval at the completion of each phase of the remediation.

    g. (1) The 1[surface]1 soil remediation standard to be implemented on an industrial establishment shall be selected [in conformance with] by the owner 1[or operator,]1 and reviewed and approved by the department, based upon the policies and criteria enumerated in section 35 of P.L.1993, c.139 (C.58:10B-12).

    (2) The department may not disapprove the use of the minimum [nonresidential] 1[surface] nonresidential1 soil remediation standards adopted by the department except upon a finding that the use of the [nonresidential] 1[surface] nonresidential1 soil remediation standards at that site would not be protective of public health, safety, or the environment or except as provided in subsection i. of this section.

    h. An owner or operator of an industrial establishment may implement a [soil] 1soil1 remedial action at an industrial establishment without prior department approval of the remedial action workplan for the remediation [of soil] 1of soil1 when the remedial action can reasonably be expected to be completed pursuant to standards, criteria, and time schedules established by the department[, which schedules shall not exceed five years from the commencement of the implementation of the remedial action and if the owner or operator is implementing a soil remediation which meets the established minimum residential or nonresidential use soil remediation standards adopted by the department].

    Nothing in this subsection shall be construed to authorize the closing of operations or the transfer of ownership or operations of an industrial establishment without the department's approval of a negative declaration, a remedial action workplan or a remediation agreement.

    i. An owner or operator of an industrial establishment shall base [his] the decision to [use the nonresidential use soil remediation standards for the industrial establishment upon the criteria listed below, as applicable:

    (1) The soil remediation standards proposed for the industrial establishment are protective of public health, safety and the environment;

    (2) The accessibility of the industrial establishment to persons not authorized to enter the site;

    (3) The transferee of the industrial establishment has agreed to the implementation of the nonresidential use soil remediation standards;     (4) The potential for hazardous substances or hazardous wastes to affect any other property;

    (5) The difference in cost between the use of the residential use soil remediation standards and the nonresidential use soil remediation standards; and

    (6) Consistency with regulations established by the Pinelands Commission pursuant to P.L.1979, c.111 (C.13:18A-1 et seq.).

    The department shall, within 18 months of the effective date of P.L.1993, c.139 (C.13:1K-9.6 et al.), promulgate regulations to clearly define how the department will evaluate the application of the criteria enumerated in paragraphs (1) through (6) of this subsection; provided, however, that notwithstanding the preceding requirement, the criteria enumerated in paragraphs (1) through (4) and in paragraph (6) shall become immediately operative. Until the department promulgates those regulations, it shall impose reasonable standards and requirements upon any owner or operator deciding to use nonresidential use soil remediation standards pursuant to this subsection. Furthermore, the department shall not impose any requirement or standard with regard to the criterion enumerated in paragraph (5) that would require an owner or operator to implement residential use soil remediation standards unless the cost difference between implementing the residential standards and the nonresidential standards is a de minimis amount. For the purposes of the preceding, de minimis shall mean a cost difference not exceeding 10 percent of the cost of implementing the nonresidential standards.] select a remedial action based upon the standards and criteria set forth in section 35 of P.L.1993, c.139 (C.58:10B-12). The remedial action selected by the owner or operator shall have the approval of the transferee of the industrial establishment.

    At any time after the effective date of P.L.1993, c.139, an owner or operator may request the department to provide a determination as to whether a proposed remedial action is consistent with the standards and criteria set forth [above in paragraphs (1) through (6)] in section 35 of P.L.1993, c.139 (C.58:10B-12). The department shall make that determination based upon the standards and criteria set forth in that section. The department shall provide any such determination within 30 calendar days of the department's receipt of the request.

    j. [An owner or operator proposing to implement a soil remedial action other than one which is set forth in subsection h. of this section must receive department approval prior to implementation of the remedial action.

    k. An owner or operator of an industrial establishment shall not implement a remedial action involving the remediation of groundwater or surface water without the prior review and approval by the department of a remedial action workplan.

    l.] Submissions of a preliminary assessment, site investigation, remedial investigation, remedial action workplan, and the results of a remedial action shall be in a manner and form, and shall contain any relevant information relating to the remediation, as may be [required by the department] referenced in the department's 1[guidance]regulations1.

    Upon receipt of a complete and accurate submission, the department shall review and approve or disapprove the submission in accordance with the review schedules established pursuant to section 2 of P.L.1991, c.423 (C.13:1D-106). The owner or operator shall not be required to wait for a response by the department before continuing remediation activities, except as otherwise provided in this section. Upon completion of the remediation, the plans for and results of the preliminary assessment, site investigation, remedial investigation, remedial action workplan, and remedial action and any other information required to be submitted as provided in section 35 of P.L.1993, c.139 (C.58:10B-12), that has not previously been submitted to the department, shall be submitted to the department for its review and approval.

    The department shall review all information submitted to it by the owner or operator at the completion of the remediation to determine whether the actions taken were in compliance with [rules and regulations] 1[the guidance] rules and regulations1 of the department regarding remediation.

    The department may review and approve or disapprove every remedial action workplan, no matter when submitted, to determine, in accordance with the criteria listed in subsection g. of section 35 of P.L.1993, c.139 (C.58:10B-12) if the remedial action that has occurred or that will occur is appropriate to meet the applicable remediation standards selected consistent with the intended land use 1and applicable health risk or environmental standards1.

    The department may order additional remediation activities at the industrial establishment, or offsite where necessary, or may require the submission of additional information, where (a) the department determines that the remediation activities undertaken were not in compliance with the applicable 1[guidance,]1 rules or regulations of the department; (b) all documents required to be submitted to the department were not submitted or, if submitted, were inaccurate, or deficient; or (c) discharged hazardous substances or hazardous wastes remain at the industrial establishment, or have migrated or are migrating offsite, at levels or concentrations in violation of the applicable remediation standards selected consistent with the intended use of the site 1and applicable health risk or environmental standards1. Upon a finding by the department that the remediation conducted at the industrial establishment was in compliance with all applicable 1[guidance or]1 regulations, that no hazardous substances or hazardous wastes remain at the industrial establishment in violation of the applicable remediation standards selected consistent with the intended use of the site 1and applicable health risk or environmental standards1 , and that all hazardous substances or hazardous wastes that migrated from the industrial establishment have been remediated in conformance with the applicable remediation standards selected consistent with the intended use of the site 1and applicable health risk or environmental standards1 , the department shall approve the remediation for that industrial establishment by the issuance of a no further action letter.

(cf: P.L.1993, c.139, s.4)

 

 

      1[12.] 8.1 Section 23 of P.L.1993, c.139 (C.58:10B-1) is amended to read as follows:

      23. As used in sections 23 through 43 1and section 45 of 1of P.L.1993, c.139 (C.58:10B-1 et seq.) 1as may be amended and supplemented1:

      "Area of concern" means any location where contaminants are or were known or suspected to have been discharged, generated, manufactured, refined, transported, stored, handled, treated, or disposed, or where contaminants have or may have migrated;

      "Authority" means the New Jersey Economic Development Authority established pursuant to P.L.1974, c.80 (C.34:1B-1 et seq.);       "Contamination" or "contaminant" means any discharged hazardous substance as defined pursuant to section 3 of P.L.1976, c.141 (C.58:10-23.11b), hazardous waste as defined pursuant to section 1 of P.L.1976, c.99 (C.13:1E-38), or pollutant as defined pursuant to section 3 of P.L.1977, c.74 (C.58:10A-3);

      "Department" means the Department of Environmental Protection [and Energy];

      "Discharge" means an intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying, or dumping of a contaminant onto the land or into the waters of the State;

      "Engineering controls" means any mechanism to contain or stabilize contamination or ensure the effectiveness of a remedial action. Engineering controls may include, without limitation, caps, covers, dikes, trenches, leachate collection systems, signs, fences and physical access controls;

      "Financial assistance" means loans or loan guarantees;

      "Institutional controls" means a mechanism used to limit human activities at or near a contaminated site, or to ensure the effectiveness of the remedial action over time, when contaminants remain at a contaminated site in levels or concentrations above the applicable remediation standard that would allow unrestricted use of that property. Institutional controls may include, without limitation, structure, land, and natural resource use restrictions, well restriction areas, and deed notices;

      "No further action letter" means a written determination by the department that based upon an evaluation of the historical use of a particular site, or of an area of concern or areas of concern at that site, as applicable, and any other investigation or action the department deems necessary, there are no discharged contaminants present at the site, at the area of concern or areas of concern, at any other site to which a discharge originating at the site has migrated, or that any discharged contaminants present at the site or that have migrated from the site have been remediated in accordance with applicable remediation [regulations] 1[guidance] regulations1;

      1["Nonpermanent remedial action" means any remedial action that requires the continued use of engineering controls in order to meet the established health risk levels;

      "Permanent remedial action" means any remedial action that does not require the continued use of engineering controls in order to meet the established health risk levels. A remedial action may be considered permanent even if institutional controls are employed at the site;]1

      "Preliminary assessment" means the first phase in the process of identifying areas of concern and determining whether contaminants are or were present at a site or have migrated or are migrating from a site, and shall include the initial search for and evaluation of, existing site specific operational and environmental information, both current and historic, to determine if further investigation concerning the documented, alleged, suspected or latent discharge of any contaminant is required. The evaluation of historic information shall be conducted from 1932 to the present, except that the department may require the search for and evaluation of additional information relating to ownership and use of the site prior to 1932 if such information is available through diligent inquiry of the public records;

      "Presumptive remedies" means historically acceptable technologies for common 1[catagories]categories1 of sites, based on historical patterns of remedy selection and the department's scientific and engineering evaluation of performance data on technology implementation;

      "Remedial action" means those actions taken at a site or offsite if a contaminant has migrated or is migrating therefrom, as may be required by the department, including the removal, treatment, containment, transportation, securing, or other engineering or treatment measures, whether of a permanent nature or otherwise, designed to ensure that any discharged contaminant at the site or that has migrated or is migrating from the site, is remediated in compliance with the [applicable] remediation standards selected consistent with the intended land use 1and applicable health risk or environmental standards1;

      "Remedial investigation" means a process to determine the nature and extent of a discharge of a contaminant at a site or a discharge of a contaminant that has migrated or is migrating from the site and the problems presented by a discharge, and may include data collected, site characterization, sampling, monitoring, and the gathering of any other sufficient and relevant information necessary to determine the necessity for remedial action and to support the evaluation of remedial actions selected consistent with the intended land use 1and applicable health risk or environmental standards1, if necessary;

      "Remediation" or "remediate" means all necessary actions to investigate and [clean up] 1clean up or take other appropriate action to1 address any known, suspected, or threatened discharge of 1[contaminants] hazardous substances or hazardous wastes1, including, as necessary, the preliminary assessment, site investigation, remedial investigation, and remedial action;

      1["Remediation fund" means the Hazardous Discharge Site Remediation Fund created pursuant to section 26 of P.L.1993, c.139 (C.58:10B-4);]1

      1"Restricted remedial action" means any remedial action that requires the continued use of engineering controls in order to meet the established health risk levels;1

      "Site investigation" means the collection and evaluation of data adequate to determine whether or not discharged contaminants exist at a site or have migrated or are migrating from the site at levels in excess of the applicable remediation standards selected consistent with the intended use of the site. A site investigation shall be developed based upon the information collected pursuant to the preliminary assessment;

      1["Subsurface soil" means the soil that is two feet or more below the existing ground surface or below the bottom of the unsaturated zone, whichever is shallower;

      "Surface soil" means the soil at the existing ground surface to a depth of two feet below the existing ground surface or below the bottom of the unsaturated zone, whichever is shallower;]1

      "Remedial action workplan" means a plan for the remedial action to be undertaken at a site, or at any area to which a discharge originating at a site is migrating or has migrated; a description of the remedial action to be used to remediate a site; a time schedule and cost estimate of the implementation of the remedial action; [and any other information the department deems necessary;]

      "Remediation fund" means the Hazardous Discharge Site Remediation Fund established pursuant to section 26 of P.L.1993, c.139 (C.58:10B-4);

      "Remediation funding source" means the methods of financing the remediation of a discharge required to be established by a person performing the remediation pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3);

      "Remediation standards" means the combination of numeric and narrative standards to which contaminants must be remediated for 1[surface and subsurface]1 soil, groundwater, or surface water as provided by the department pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12)1;

      "Unrestricted remedial action" means any remedial action that does not require the continued use of engineering controls in order to meet the established health risk levels. A remedial action may be considered unrestricted if institutional controls are employed at the site; provided, however, that the remedial action does not require the continued use of engineering controls in order to meet the established health risk levels1.

(cf: P.L.1993, c.139, s.23)

 

      1[13.] 9.1 Section 24 of P.L.1993, c.139 (C.58:10B-2) is amended to read as follows:

      24. a. The department shall[, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations establishing criteria and minimum standards] 1[develop guidance identifying the purpose and establishing the goals] , pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations establishing criteria and minimum standards1 necessary for the [submission, evaluation and approval of plans or results] performance of preliminary assessments, site investigations, remedial investigations[,] and remedial [action workplans] actions and for the implementation thereof. [The documents for the preliminary assessment, site investigation, remedial investigation, and remedial action workplan required to be submitted for a remediation, shall not be identical to the criteria and standards used for similar documents submitted pursuant to federal law, except as may be required by federal law. In establishing criteria and minimum standards for these terms the department shall strive to avoid duplicate or unnecessarily costly or time consuming conditions or standards.] The 1[guidance]regulations1 shall allow the intended land use for the site to guide the site and remedial investigation processes 1if, under such regulations, there exists a presumption of a reasonably predictable remedy1 . Where there exists a presumption of reasonably predictable remedy, such remedy shall be used to focus the remedial investigation goals and objectives. The 1[guidance] regulations1 shall also incorporate the intended land use in selecting remedial action goals and objectives. The 1[guidance] regulations1 shall be focused to ensure that an adequate amount of information is gathered to support that the selected remedy is protective of human health and the environment, without the increased cost of unnecessary investigation. 1The regulations required by this section shall be flexible and result-oriented; consider professional judgment to the maximum extent practicable; and carry forward the goals of expediency and flexibility by focusing on land use and remedial action objectives throughout the investigatory process.1

      b. To the extent practicable and in conformance with the standards for remediations as provided in section 35 of P.L.1993, c.139 1[(C.58:10-12)] (C.58:10B-12)1 , the department shall 1[issue guidance allowing] adopt rules and regulations that allow1 for 1[remediation activities] certain remedial actions1 to be undertaken 1in a manner prescribed by the department1 without having to obtain prior approval from, or submit detailed documentation to, the department. 1[To the extent that a responsible party or other person performs such remediation activities in a manner protective of human health and the environment, the department shall issue a no further action letter for that particular remediation activity and adopt rules and regulations that allow for certain remediation activities that pose an insignificant risk to the public health, safety and the environment to be undertaken in a manner prescribed by the department without having to obtain prior approval from, or submit detailed documentation to, the department.]1 A person who performs a remediation in the manner prescribed in the rules and regulations of the department, and who certifies this fact to the department, shall obtain a no further action letter from the department for that particular remediation activity.

      c. The department shall develop regulatory procedures that encourage the use of innovative technologies in the performance of remedial actions 1and other remedial activities1.  Such innovative technologies may apply to either 1[permanent or nonpermanent remedies. The procedures shall include, but need not be limited to, an expedited review process for document submissions. Nothing in this subsection shall be construed to compromise the timeliness of reviews of other remedial submissions to the department. Upon submittal of the administratively and technically complete and accurate remedial action workplan that proposes the use of an innovative technology, the department shall review and approve that plan within 90 days. The submittal of subsequent administratively and technically complete and accurate remedial action progress reports shall be reviewed within 30 days and the submittal of an administratively and technically complete and accurate remedial action final report shall be reviewed within 45 days. Failure of the department to disapprove or conditionally approve these plans or reports within the period of time allowed for its review shall be deemed to be approval of that plan by the department]restricted or unrestricted remedial actions1.

      1d. 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. §471i.1

(cf: P.L.1993, c.139, s.24)

 

      1[14.] 10.1 Section 25 of P.L.1993, c.139 (C.58:10B-3) is amended to read as follows:

      25. 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 or person in any way responsible for a hazardous substance 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.), 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, is not required to establish or maintain a remediation funding source. A person who uses an innovative technology 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. 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, (2) 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) as stated in a departmental order or directive, or (4) 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 department shall review and respond to the request to decrease the remediation funding source within 90 days. 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, as applicable. The department shall approve the request upon a finding that the remediation cost estimate decreased by the requested amount.

      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 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 Insurance to transact business in the State of New Jersey, to fund the remediation, (3) a line of credit from a person or institution satisfactory to the department authorizing the person responsible for performing the remediation to borrow money, or (4) a self-guarantee, 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 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 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 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, 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 self-guarantee a remediation funding source upon the submittal of documentation to the department demonstrating that the 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 not exceed one-third of the tangible net worth 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 only of 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. 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. 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 in that fiscal year in an amount at least equal to the estimated costs of completing the remedial action workplan schedule 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 or claims upon the environmental insurance policy, 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 time after the department's determination of nonperformance by the owner or operator required to establish the remediation funding source, petition the department, in writing, with a copy being sent to the owner and operator, for authority to perform the remediation at the industrial establishment. The department, upon a determination that the transferee is competent to do so, may grant that petition which shall authorize the transferee 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. The petition of the transferee shall not be granted by the department if the owner or operator 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 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, as applicable, or except upon a determination by the department that the transferee is not adequately performing the remediation.

(cf: P.L.1993, c.139, s.25)

 

      1[15.] 11.1 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. Moneys in the remediation fund shall be dedicated for the provision of financial assistance or grants to municipal governmental entities, established pursuant to P.L.1996, c.62 (C.55:19-20 et al.), and any county improvement authority established pursuant to P.L.1960, c.183 (C.40:37A-44), individuals, corporations, partnerships, and other private business entities, 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);

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

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

(cf: P.L.1993, c.139, s.26)

 

      1[16.] 12.1 Section 27 of P.L.1993, c.139 (C.58:10B-5) is amended to read as follows:

      27. a. (1) Financial assistance from the remediation fund [, made to persons other than municipal governmental entities, the New Jersey Redevelopment Authority, or to persons who voluntarily undertake a remediation,] may only be rendered to persons who cannot establish a remediation funding source for the full amount of a remediation. Financial assistance pursuant to this act may be rendered only for that amount of the cost of a remediation for which the person cannot establish a remediation funding source. The limitations on receiving financial assistance established in this paragraph (1) shall not limit the ability of municipal governmental entities, established pursuant to P.L.1996, c.62 (C.55:19-20 et al.), and any county improvement authority established pursuant to P.L.1960, c.183 (C.40:37A-44), persons who are not required to establish a remediation funding source for the part of the remediation involving an innovative technology, or persons who voluntarily undertake a remediation to receive financial assistance from the fund.

      (2) Financial assistance rendered to persons who voluntarily undertake a remediation may only be made for that amount of the cost of the remediation that the person cannot otherwise fund by any of the authorized methods to establish a remediation funding source.

      (3) Financial assistance rendered to persons who do not have to provide financial assurance for the part of the remediation that involves an innovative technology may only be made for that amount of the cost of the remediation that the person cannot otherwise fund by any of the authorized methods to establish a remediation funding source.

      b. Financial assistance may be rendered from the remediation fund to (1) owners or operators of industrial establishments who are required to perform remediation activities pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), upon closing operations or prior to the transfer of ownership or operations of an industrial establishment, (2) persons who have discharged a hazardous substance or who are in any way responsible for a hazardous substance pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.), and (3) persons who voluntarily undertake the remediation of a discharge of a hazardous substance or hazardous waste and who have not been ordered or directed to perform the remediation by the department or by a court.

      c. Financial assistance and grants may be made from the remediation fund to municipal governmental entities, the New Jersey Redevelopment Authority, or to county improvement authorities that own or hold a tax sale certificate on real property or that have acquired real property through foreclosure or other similar means or by voluntary conveyance and on which there has been a discharge or on which there is a suspected discharge of a hazardous substance or hazardous waste [or the New Jersey Redevelopment Authority established pursuant to P.L.1996, c.62 (C.55:19-20 et al.) for any such real property upon which the New Jersey Redevelopment Authority owns or holds the tax sale certificate].

      d. Grants may be made from the remediation fund to persons [, including] and the New Jersey Redevelopment Authority, [other than other governmental entities] who own real property on which there has been a discharge of a hazardous substance or a hazardous waste and that person or the authority qualifies for an innocent party grant pursuant to section 28 of P.L.1993, c.139 (C.58:10B-6).

      e. Grants may be made from the remediation fund to persons who propose to perform a remedial action that uses an innovative technology.

      For the purposes of this section, "person" shall not include [the New Jersey Redevelopment Authority established pursuant to P.L.1996, c.62 (C.55:19-20 et al.)] governmental entity.

(cf: P.L.1996, c.62, s.64)

 

      1[17.] 13.1 Section 28 of P.L.1993, c.139 (C.58:10B-6) is amended to read as follows:

      28. a. Except for moneys deposited in the remediation fund for specific purposes, financial assistance and grants from the remediation fund shall be rendered for the following purposes and, on an annual basis, obligated in the percentages as provided in this subsection. Upon a written joint determination by the authority and the department that it is in the public interest, financial assistance and grants dedicated for the purposes and in the percentages set forth in any paragraph [(1), (2), or (3)] of this subsection, may, for any particular year, be obligated to other purposes set forth in this subsection. The written determination shall be sent to the Senate Environment Committee, and the Assembly Agriculture and Waste Management Committee, or their successors. For the purposes of this section, "person" shall not include [the New Jersey Redevelopment Authority established pursuant to P.L.1996, c.62 (C.55:19-20 et al.)] a governmental entity.

      (1) At least 15% of the moneys shall be allocated for financial assistance to persons, [including] the New Jersey Redevelopment Authority established pursuant to P.L.1996, c.62 (C.55:19-20 et al.), and to any county improvement authority established pursuant to P.L.1960, c.183 (C.40:37A-44), [other than other governmental entities,] for remediation of real property located in a qualifying municipality as defined in section 1 of P.L.1978, c.14 (C.52:27D-178);

      (2) At least 10% of the moneys shall be allocated for financial assistance and grants to municipal governmental entities, the New Jersey Redevelopment Authority or county improvement authorities that hold a tax sale certificate on real property or have acquired real property through foreclosure or other similar means or by voluntary conveyance [real property] on which there has been or on which there is suspected of being a discharge of hazardous substances or hazardous wastes [or the New Jersey Redevelopment Authority established pursuant to P.L.1996, c.62 (C.55:19-20 et al.), for any such real property upon which the New Jersey Redevelopment Authority owns or holds the tax sale certificate]. Grants shall be used for performing preliminary assessments, site investigations, and remedial investigations on property acquired by a municipal governmental entity, [or] the New Jersey Redevelopment Authority[,] or a county improvement authority as the case may be, or on which the municipality, [or] the New Jersey Redevelopment Authority or a county improvement authority owns or holds a tax sale certificate, in order to determine the existence or extent of any hazardous substance or hazardous waste contamination on those properties. A municipal governmental entity, the New Jersey Redevelopment Authority or a county improvement authority, that has performed a preliminary assessment, site investigation [and] or remedial investigation on property [or the New Jersey Redevelopment Authority, in any case where the New Jersey Redevelopment Authority has performed the preliminary assessment, site investigation, and remedial investigation] may obtain a loan for the purpose of continuing the remediation on those properties [it owns] as necessary to comply with the applicable remediation standards adopted by the department;

      (3) At least 15% of the moneys shall be allocated for financial assistance to persons, [including] the New Jersey Redevelopment Authority, county improvement authorities or municipal governmental entities for remediation activities at sites that have been contaminated by a discharge of a hazardous substance or hazardous waste, or at which there is an imminent and significant threat of a discharge of a hazardous substance or hazardous waste, and the discharge or threatened discharge poses or would pose an imminent and significant threat to a drinking water source, to human health, or to a sensitive or significant ecological area;

      (4) At least 10% of the moneys shall be allocated for financial assistance to persons [, other than municipal governmental entities,] who voluntarily undertake the remediation of a hazardous substance or hazardous waste discharge, and who have not been ordered to undertake the remediation by the department or by a court;

      (5) At least [20%] 15% of the moneys shall be allocated for financial assistance to persons [, other than municipal governmental entities,] who are required to perform remediation activities at an industrial establishment pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), as a condition of the closure, transfer, or termination of operations at that industrial establishment;

      (6) At least 20% of the moneys shall be allocated for grants to persons [, other than municipal governmental entities,] who own real property on which there has been a discharge of a hazardous substance or a hazardous waste and that person qualifies for an innocent party grant. A person qualifies for an innocent party grant if that person acquired the property prior to December 31, 1983, except as provided hereunder, the hazardous substance or hazardous waste that was discharged at the property was not used by the person at that site, and that person certifies that he did not discharge any hazardous substance or hazardous waste at an area where a discharge is discovered; provided, however, that [if the person is] notwithstanding any other provision of this section or of section 27 of P.L.1993, c.139 (C.58:10B-5), the New Jersey Redevelopment Authority established pursuant to P.L.1996, c.62 (C.55:19-20 et al.), [the authority] shall qualify for an innocent party grant pursuant to this paragraph where the immediate predecessor in title to the authority would have qualified for but failed to apply for or receive such grant. A grant authorized pursuant to this paragraph may be for up to 50% of the remediation costs at the area of concern for which the person qualifies for an innocent party grant, except that no grant awarded pursuant to this paragraph to any person [including] or the New Jersey Redevelopment Authority may exceed $1,000,000;

      (7) At least 5% of the moneys shall be allocated for loans to persons [, other than municipal governmental entities,] or county improvement authorities who own and plan to remediate an environmental opportunity zone for which an exemption from real property taxes has been granted pursuant to section 5 of P.L.1995, c.413 (C.54:4-3.154); [and]

      (8) At least 5% of the moneys shall be allocated for 25% matching grants to persons who propose to perform a remedial action that uses an innovative technology; and

      (9) Five percent of the moneys in the remediation fund shall be allocated for financial assistance or grants for any of the purposes enumerated in paragraphs (1) through [(7)] (8) of this subsection, except that where moneys in the fund are insufficient to fund all the applications in any calendar year that would otherwise qualify for financial assistance or a grant pursuant to this paragraph, the authority shall give priority to financial assistance applications that meet the criteria enumerated in paragraph (3) of this subsection.

      b. Loans issued from the remediation fund shall be for a term not to exceed ten years, except that upon the transfer of ownership of any real property for which the loan was made, the unpaid balance of the loan shall become immediately payable in full. Loans to municipal governmental entities, county improvement authorities and the New Jersey Redevelopment Authority [established pursuant to P.L.1996, c.62 (C.55:19-20 et al.)], shall bear an interest rate equal to 2 points below the Federal Discount Rate at the time of approval or at the time of loan closing, whichever is lower, except that the rate shall be no lower than 3 percent. All other loans shall bear an interest rate equal to the Federal Discount Rate at the time of approval or at the time of the loan closing, whichever is lower, except that the rate on such loans shall be no lower than five percent. Financial assistance and grants may be issued for up to 100% of the estimated applicable remediation cost, except that the cumulative maximum amount of financial assistance which may be issued to a person [other than a governmental entity, including the New Jersey Redevelopment Authority,] in any calendar year, for one or more properties, shall be $1,000,000. Financial assistance and grants to any one municipal governmental entity, [including] any one county improvement authority or the New Jersey Redevelopment Authority may not exceed $2,000,000 in any calendar year. Repayments of principal and interest on the loans issued from the remediation fund shall be paid to the authority and shall be deposited into the remediation fund.

      c. No person, other than [a municipal governmental entity, the New Jersey Redevelopment Authority] a person planning to use an innovative technology for the cost of that technology or a person engaging in a voluntary remediation, shall be eligible for financial assistance from the remediation fund to the extent that person is capable of establishing a remediation funding source for the remediation as required pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3).

      d. The authority may use a sum that represents up to 2% of the moneys issued as financial assistance or grants from the remediation fund each year for administrative expenses incurred in connection with the operation of the fund and the issuance of financial assistance and grants.

      e. Prior to March 1 of each year, the authority shall submit to the Senate Environment Committee and the Assembly Agriculture and Waste Management Committee, or their successors, a report detailing the amount of money that was available for financial assistance and grants from the remediation fund for the previous calendar year, the amount of money estimated to be available for financial assistance and grants for the current calendar year, the amount of financial assistance and grants issued for the previous calendar year and the category for which each financial assistance and grant was rendered, and any suggestions for legislative action the authority deems advisable to further the legislative intent to facilitate remediation and promote the redevelopment and use of existing industrial sites.

(cf: P.L.1996, c.62, s.65)

 

      1[18.] 14.1 Section 30 of P.L.1993, c.139 (C.58:10B-8) is amended to read as follows:

      30. a. The authority shall, by rule or regulation:

      (1) require a financial assistance or grant recipient to provide to the authority, as necessary or upon request, evidence that financial assistance or grant moneys are being spent for the purposes for which the financial assistance or grant was made, and that the applicant is adhering to all of the terms and conditions of the financial assistance or grant agreement;

      (2) require the financial assistance or grant recipient to provide access at reasonable times to the subject property to determine compliance with the terms and conditions of the financial assistance or grant;

      (3) establish a priority system for rendering financial assistance or grants for remediations identified by the department as involving an imminent and significant threat to a public water source, human health, or to a sensitive or significant ecological area pursuant to paragraph (7) of subsection a. of section 28 of P.L.1993, c.139 (C.58:10B-6);

      (4) provide that payment of a grant shall be conditioned upon the subrogation to the department of all rights of the recipient to recover remediation costs from the discharger or other responsible party. All moneys collected in a cost recovery subrogation action shall be deposited into the remediation fund;

      (5) provide that an applicant for financial assistance or a grant pay a reasonable fee for the application which shall be used by the authority for the administration of the loan and grant program;

      (6) provide that where financial assistance to a person other than a municipal governmental entity, established pursuant to P.L.1996, c.62 (C.55:19-20 et al.), and any county improvement authority established pursuant to P.L.1960, c.183 (C.40:37A-44), is for a portion of the remediation cost, that the proceeds thereof not be disbursed to the applicant until the costs of the remediation for which a remediation funding source has been established has been expended;       (7) adopt such other requirements as the authority shall deem necessary or appropriate in carrying out the purposes for which the Hazardous Discharge Site Remediation Fund was created.

      b. An applicant for financial assistance or a grant shall be required to:

      (1) provide proof, as determined sufficient by the authority, that the applicant, where applicable, cannot establish a remediation funding source for all or part of the remediation costs, as required by section 25 of P.L.1993, c.139 (C.58:10B-3). The provisions of this paragraph do not apply to grants to innocent persons or to the portion of remediation costs involving innovative technology or to financial assistance or grants to municipal governmental entities, the New Jersey Redevelopment Authority or a county improvement authority; and

      (2) demonstrate the ability to repay the amount of the financial assistance and interest, and, if necessary, to provide adequate collateral to secure the financial assistance amount.

      c. Information submitted as part of a loan or grant application or agreement shall be deemed a public record subject to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.).

      d. In establishing requirements for financial assistance or grant applications and financial assistance or grant agreements, the authority:

      (1) shall minimize the complexity and costs to applicants or recipients of complying with such requirements;

      (2) may not require financial assistance or grant conditions that interfere with the everyday normal operations of the recipient's business activities, except to the extent necessary to ensure the recipient's ability to repay the financial assistance and to preserve the value of the loan collateral; and

      (3) shall expeditiously process all financial assistance or grant applications in accordance with a schedule established by the authority for the review and the taking of final action on the application, which schedule shall reflect the degree of complexity of a financial assistance or grant application.

(cf: P.L.1993, c.139, s.30)

 

      1[19.] 15.1 Section 33 of P.L.1993, c.139 (C.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 undertakes a remediation without being so ordered or directed by the department or by a court or pursuant to an administrative consent order, or (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. The surcharge shall be based on the cost of remediation work remaining to be completed and shall be paid on an annual basis as long as the remediation continues and until the Department of Environmental Protection [and Energy] issues a no further action letter for the property subject to the remediation. 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. 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 Fund.

      b. By February 1 of each year, the department shall issue a report to the Senate Environment Committee and to the Assembly [Energy and Hazardous Waste] Agriculture and Waste Management 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.1993, c.139, s.33)

 

      1[20.] 16.1 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 [and Energy] shall adopt minimum remediation standards for 1[surface and subsurface ]1 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. §9601 et seq. and other statutory authorities as applicable.

      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. §9601 et seq. and other statutory authorities as applicable; [and]

      (4) where feasible, establish the remediation standards as numeric or narrative standards setting forth acceptable levels or concentrations for particular contaminants 1[:] ;1

      (5) consider and utilize, where appropriate, 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) in establishing minimum remediation standards. In the event the department deviates from IRIS data, such alternate data shall either be published in the peer-reviewed scientific literature or otherwise subjected to the review of independent scientific experts; and

      (6) consider and utilize, where appropriate, standard probabilistic approaches 1[, such as the Monte Carlo approach,]1 in the development of minimum remediation standards.

      c. (1) The department shall develop residential and nonresidential 1[surface]1 soil remediation standards 1[and subsurface soil remediation standards]1 that are protective of public health and safety. For contaminants that are mobile and transportable to groundwater or surface water, the [residential and nonresidential]1[subsurface] residential and nonresidential1 soil remediation standards shall be protective of groundwater and surface water, where applicable. Residential 1[surface]1 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 continuous engineering devices or any institutional controls and without exceeding a health risk level greater than that provided in subsection d. of this section. Nonresidential 1[surface]1 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 and that can be met without the need of continuous engineering controls. 1[Subsurface soil remediation standards shall be set at levels that assume no direct contact or exposure to the contamination but are based solely on the need to be protective of groundwater. Surface and subsurface nonresidential] Nonresidential soil1 remediation standards shall be set at levels and assure no phytotoxic endpoints. Whenever real property is remediated to a nonresidential surface 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 1[surface]1 soil and that access to that site be restricted in a manner compatible with the allowable use of that property. 1[Whenever subsurface soil meets the remediation standards for subsurface soil, no engineering or institutional controls shall be required pursuant to section 36 of P.L.1993, c.139 (C.58:10B-13), for that property even if the level of contamination would exceed the surface soil remediation standards. The department may not restrict the use of the surface of a property merely because the subsurface soil contamination exceeds the surface soil remediation standards.]1

      (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. {1251 et seq.) and the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.). In instances where the groundwater is contaminated and there is little or no use of that groundwater for drinking water, the department shall develop remediation policies that allow for the natural attenuation of that groundwater as an appropriate remedial action. Nothing in this paragraph shall omit the use of natural attenuation as an acceptable remedy for potable aquifers in instances where the contamination is not causing an unacceptable impact to the potable use of that groundwater. Whenever contamination exists in the groundwater that exceeds the relevant groundwater remediation standards, the department shall require, pursuant to section 36 of P.L.1993, c.139 (C.58:10B-13), that the use of the groundwater be restricted in a manner so as to prevent ingestion of the groundwater. The department may not, however, restrict the use of the surface of a property merely because the groundwater contamination exceeds the applicable remediation standards. Remediation standards protective of surface waters shall be based upon water quality and discharge criteria established in the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.). 1In achieving the objectives of this section, the department shall strive, to the maximum extent practicable, to utilize the information collected pursuant to section 2 of P.L. , c. (C. )(now pending before the Legislature as this bill).1

      d. In developing minimum remediation standards intended to be protective of public health and safety, 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 1[surface]1 soil remediation 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 levels 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 requirements established pursuant to this section 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 1[surface]1 soil remediation standard for either residential use or nonresidential use 1[or a subsurface soil remediation standard]1 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 1[surface]1 soil remediation standard 1[or an alternative subsurface soil remediation standard]1. The use of an alternative 1[surface or subsurface]1 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 1[surface or subsurface]1 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 1[ surface or subsurface]1 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 1[surface or subsurface]1 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. §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, and available toxicological data that are based upon generally accepted and peer reviewed scientific evidence or methodologies and may consider physical characteristics of the site including, but not limited to, naturally occurring access restrictions or inhibitors, climatic conditions or topographic conditions.

      Upon a determination by the department that the requested alternative remediation standard is protective of public health and safety, as established in subsection d. of this section, and protective of the environment pursuant to subsection a. of this section, the alternative residential use or nonresidential use 1[surface or subsurface]1 soil remediation standard shall be approved by the department.

      (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 1[surface]1 soil remediation standard 1[or the subsurface soil remediation standard]1 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 1[surface]1 soil remediation standards 1[or the subsurface soil remediation standards]1 would not be protective, or would be unnecessarily overly-conservative, 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 remedial action that shall occur at a site in order to meet the established remediation standards, the department, or any person performing the remediation, shall base its decision on the following factors:

      (1) 1[Permanent and nonpermanent [remedies]] Restricted and unrestricted1 remedial actions shall be allowed [except that permanent remedies shall be preferred over nonpermanent remedies for remedial actions] 1[ and no preference shall be given to either a permanent or nonpermanent remedial action so long as the] except that unrestricted remedies shall be preferred over restricted remedies for remedial actions. The1 selected remedial action 1[ meets the health risk level established in subsection d. of this section, and where, as applicable, is] shall be1 protective of the 1public health, safety and the1 environment 1as applicable1. The choice of the remedial action to be implemented shall be made by the person performing the remediation and that choice of the remedial action shall be approved by the department if 1the department is satisfied that1 all the criteria for remedial action selection enumerated in this section are met 1[. The department may not require a person performing a remediation to perform any remediation activity that exceeds the actions necessary to meet the chosen remedial objectives]1;

      (2) Contamination may, upon the department's approval, be left onsite at levels or concentrations that exceed the minimum 1[surface]1 soil remediation standards for residential use or nonresidential 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 level 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;

      (3) Real property on which there is 1[surface]1 soil that has not been remediated to the residential 1[surface]1 soil remediation standards, or real property on which the 1[surface or subsurface]1 soil, groundwater, or surface water has been remediated to meet the required health risk level 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 1[surface]1 soil are remediated to meet the residential 1 [surface]1 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 level as established in subsection d. of this section;

      (4) Remediation shall not be required beyond the regional natural background levels for any particular contaminant. The department shall develop [regulations] 1[guidance] regulations1 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 discharger or is in any way responsible for the discharge;

      (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 levels. In reviewing a [proposed] remedial action, the department shall also consider the ability of the [owner or operator] proposed remedial action to [implement the proposed remedial action] be implemented within a reasonable time frame without jeopardizing public health, safety or the environment. A person 1[selected] who selects1 a presumptive remedy in accordance with the department's 1[guidance]1 regulations developed pursuant to section 38 of P.L.1993, c.139 (C.58:10B-14), 1[as amended by P.L. , c. (now pending before the Legislature as this bill),]1 shall be assumed to have demonstrated the technical performance and reliability of the remedial action as required by this subsection;

      (8) [In the case of a proposed remedial action that will not meet the established minimum residential use soil remediation standards, the cost of all available permanent remedies is unreasonable, as determined by department rules designed to provide a cost-based preference for the use of permanent remedies. The department shall adopt regulations, no later than 18 months after the effective date of this act, establishing criteria and procedures for allowing a person to demonstrate that the cost of all available permanent remedies is unreasonable. Until the department adopts those regulations, it shall not require a person performing a remedial action to implement a permanent remedy, unless the cost of implementing a nonpermanent remedy is 50 percent or more than the cost of implementing a permanent remedy; provided, however, that the preceding provision shall not apply to any owner or operator of an industrial establishment who is implementing a remedial action pursuant to subsection i. of section 4 of P.L.1983, c.330;] 1[The use of a remedial action for surface 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.58:10-14), 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 if all of the conditions for remedy selection provided for in this section are met.]1

      (9) [The use of the established nonresidential soil remediation standard shall not be unreasonably disapproved by the department.] 1[(Deleted by amendment P.L. , c. )] The use of the established nonresidential soil remediation standard shall not be unreasonably disapproved by the department.1

      The department may require the person performing the remediation 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] 1[issue guidance] adopt regulations1which 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 a remediation standard. In these areas the department shall [establish by regulation the requirement for] 1[issue guidance that identifies] establish by regulation the requirement for1engineering 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 levels 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 guidance, 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, regardless of the date 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 levels 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, within one year of the enactment of this act, shall issue a report to the Senate Environment Committee and to the Assembly [Energy and Hazardous Waste] 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 1[surface]1 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] remediation 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 selected consistent with the intended use of the property.

      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, or after the commencement of the remedial action, the department may not subsequently require a change to that workplan [or], similar plan or remedial action 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, or utilized in the remedial action differs by an order of magnitude and poses an unacceptable risk to human health or the environment. 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 1[Pinelands] pinelands1 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 1"1 National Parks and Recreation Act 1"1 of 1978, 16 U.S.C. 1[§4711] §471i1.

      l. Upon the adoption of a remediation standard for a particular contaminant in 1[surface or subsurface]1 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 levels 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 1[surface]1 soil remediation standard to a level that would result in a health risk level 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.).

      1n. 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.1

(cf: P.L.1993, c.139, s.35)

 

      1[21.] 17.1 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 surface soil remediation standard or engineering or institutional controls are used in lieu of remediating a site to meet an established remediation standard for1[surface or subsurface]1 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] description 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 above the remediation standards developed consistent with the intended land use, 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;

      (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] copy of this notice be forwarded to the governing body of each municipality in which the property is located;

      (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 1[surface]1 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] describing 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 1[surface]1 soil remediation standard or on which the department has allowed engineering or institutional controls for 1[surface or subsurface]1 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 1[surface or subsurface]1 soil, 1[ or any]1 groundwater [,] or surface water remediation standards that were in effect or approved by the department at the completion of the remediation, [the owner or operator of the property or person performing the remediation] no person, except as otherwise provided in this section, shall [not] 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, 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) 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.

      Nothing in the provisions of this subsection shall be construed to limit the liability of any person who is liable to remediate the contamination and at the time of the remediation knows of contamination existing on this property and fails to remediate or disclose it. 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 or institutional 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 or institutional controls for the remediation of soil, groundwater, or surface water, to protect public health, safety or the environment in lieu of remediating a site to a condition that meets an established residential remediation standard, the department shall not require additional remediation of that site unless the engineering or institutional 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 1[surface or subsurface]1 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.

      1h. 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.1

(cf: P.L.1993, c.139, s.36)

 

      1[22. Section 38 of P.L.1993, c.139 (C.58:10B-14) is amended to read as follows:

      38. Within 12 months of the effective date of this act, the department shall develop a guidance document for the remediation of contaminated surface and subsurface soils and groundwater. The guidance document shall include a description of remedial actions the department determines are effective in remediating [soil] contamination [to the residential or nonresidential use soil remediation standards] and that should be considered by a person performing a [soil] remediation. The department shall revise the guidance document periodically as it determines necessary. Adoption of the guidance document, or the revisions thereto, shall be published in the New Jersey Register but the adoption of the guidance document, or the revisions thereto, shall not otherwise be subject to the notice, comment, publication, or other requirements of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

(cf: P.L.1993, c.139, s.38)]1

 

      1[23.] 18.1 Section 37 of P.L.1993, c.139 is amended to read as follows:

      37. a. There is established, in but not of the Department of Environmental Protection [and Energy], an Environment Advisory Task Force. The Task Force shall consist of 15 members as follows: (1) the Commissioner of Environmental Protection [and Energy], or his designee; (2) one representative from the National Academy of Sciences who shall be selected by the Academy; (3) one representative from the New Jersey Environmental and Occupational Health Sciences Institute who has experience in risk assessment, who shall be selected by the Institute; (4) one representative each from the industrial real estate development industry, the environmental consulting profession, a public interest environmental organization, and the legal community, who shall be appointed by the Governor with the advice and consent of the Senate; (5) four members who shall have at least a master's degree in a relevant science discipline and who shall, to the greatest extent possible, include a plant or animal biologist, a toxicologist, an ornithologist, and a physiologist, who shall be appointed by the Governor with the advice and consent of the Senate; (6) two members who shall have at least a master's degree in a science discipline, have relevant experience, and be employed by an industrial business, who shall be appointed by the President of the Senate; and (7) two members who shall have at least a master's degree in a science discipline, have relevant experience, and be employed by an industrial business, who shall be appointed by the Speaker of the General Assembly. All the members shall be appointed and qualified within 90 days of the enactment of P.L. , c. (now pending before the Legislature as this bill). If any member is not appointed and qualified by this date, that membership slot on the task force shall cease to exist and the task force membership shall be reduced accordingly.

      b. The Environment Advisory Task Force shall meet as soon as practicable after the appointment and qualification of [all] a majority of its members. The Commissioner of Environmental Protection, or the commissioner's designee, shall be the chairperson of the Environment Advisory Task Force. The Environment Advisory Task Force shall meet at the call of its chairperson and in the locations the chairperson shall choose.

      c. The Environment Advisory Task Force shall, within two years after its first meeting, make recommendations to the department on the feasibility, development, and application of remediation standards protective of the environment. A copy of the recommendations shall be submitted to the Senate Environment Committee and to the Assembly [Energy and Hazardous Waste] Agriculture and Waste Management Committee, or to their successors.

      d. The Environment Advisory Task Force shall:

      (1) review the scientific literature to identify existing sources of information and data necessary for the development of remediation standards protective of the environment and to determine the current state-of-the-science in the identification of adverse impacts of contamination on ecological receptors and the establishment of contaminant concentration levels necessary to protect the environment;

      (2) review scientific literature on the methods, procedures, data input needs, limitations, interpretation, and uses of environment risk assessments;

      (3) collect information on public and private activities concerning the development and uses of environment risk assessments and remediation standards protective of the environment;

      (4) evaluate the ecological components which should be protected through the application of remediation standards protective of the environment;

      (5) identify public policy issues involved in the development of remediation standards protective of the environment;

      (6) suggest an approach and methodology for the development of remediation standards protective of the environment;

      (7) evaluate the social, economic and environmental impacts of regulations which would incorporate state-of-the-art environment risk assessment methodologies;

      (8) recommend necessary changes in statutes and regulations necessary to implement the advice of the Environment Advisory Task Force; and

      (9) review and make recommendations on any other aspect of the adoption of these remediation standards the task force determines is necessary for a complete evaluation of these issues.

      e. Prior to the submittal of its recommendations to the department, the Environment Advisory Task Force shall release a proposed recommendation to the public. The Environment Advisory Task Force shall hold at least one public meeting at least 14 days after public release of its proposed recommendations. Members of the public shall be allowed to present written and oral comments on the proposed recommendations at the public meeting. The task force is not required to record, consider, or comment upon the public comments. Upon submittal of its final recommendations to the department concerning the adoption of remediation standards protective of the environment, the Environment Advisory Task Force shall expire.

(cf: P.L.1993, c.139, s.37)

 

      1[24.] 19.1 Section 2 of P.L.1976, c.141 (C.58:10-23.11a) is amended to read as follows:

      2. The Legislature finds and declares: that New Jersey's lands and waters constitute a unique and delicately balanced resource; that the protection and preservation of these lands and waters promote the health, safety and welfare of the people of this State; that the tourist and recreation industry dependent on clean waters and beaches is vital to the economy of this State; that the State is the trustee, for the benefit of its citizens, of all natural resources within its jurisdiction; and that the storage and transfer of petroleum products and other hazardous substances between vessels, between facilities and vessels, and between facilities, whether onshore or offshore, is a hazardous undertaking and imposes risk of damage to persons and property within this State.

      The Legislature finds and declares that the discharge of petroleum products and other hazardous substances within or outside the jurisdiction of this State constitutes a threat to the economy and environment of this State. The Legislature intends by the passage of this act to exercise the powers of this State to control the transfer and storage of hazardous substances and to provide liability for damage sustained within this State as a result of any discharge of said substances, by requiring the prompt containment and removal of such pollution and substances, and to provide a fund for swift and adequate compensation to resort businesses and other persons damaged by such discharges, and to provide for the defense and indemnification of certain persons under contract with the State for claims or actions resulting from the provision of services or work to mitigate or clean up a release or discharge of hazardous substances.

      The Legislature further finds and declares that many former industrial sites in the State remain vacant or underutilized in part because they have been contaminated by a discharge of a hazardous substance; that these properties constitute an economic drain on the State and the municipalities in which they exist; that it is in the public interest to have these properties cleaned up sufficiently so that they can be safely returned to productive use; and that it should be a function of the Department of Environmental Protection to facilitate and coordinate activities and functions designed to cleanup contaminated sites in this State.

(cf: P.L.1991, c.373, s.12)

 

      1[25.] 20.1 Section 3 of P.L.1976, c.141 (C.58:10-23.11b) is amended to read as follows:

      3. Unless the context clearly indicates otherwise, the following terms shall have the following meanings:

      "Act of God" means an act exclusively occasioned by an unanticipated, grave natural disaster without the interference of any human agency;

      "Administrator" means the chief executive of the New Jersey Spill Compensation Fund;

      "Barrel" means 42 United States gallons or 159.09 liters or an appropriate equivalent measure set by the director for hazardous substances which are other than fluid or which are not commonly measured by the barrel;

      "Board" means a board of arbitration convened by the administrator to settle disputed disbursements from the fund;

      "Cleanup and removal costs" means all costs associated with a discharge, incurred by the State or its political subdivisions or their agents or any person with written approval from the department in the: (1) removal or attempted removal of hazardous substances, or (2) taking of reasonable measures to prevent or mitigate damage to the public health, safety, or welfare, including, but not limited to, public and private property, shorelines, beaches, surface waters, water columns and bottom sediments, soils and other affected property, including wildlife and other natural resources, and shall include costs incurred by the State for the indemnification and legal defense of contractors pursuant to sections 1 through 11 of P.L.1991, c.373 (C.58:10-23.11f8 et seq.)1.1 For the purposes of this definition, costs incurred by the State shall not include any indirect costs 1[or fringe benefit costs] for department oversight performed after the effective date of P.L. , c. (now pending before the Legislature as this bill)1, but 1[shall] may1 include only those program costs directly related to the cleanup and removal of the discharge 1; however, where the State or the fund have expended money for the cleanup and removal of a discharge and will be or are seeking to recover the costs incurred in that cleanup and removal action from a responsible party, costs incurred by the State shall include any indirect costs1;

      "Commissioner" means the Commissioner of Environmental Protection;

      "Department" means the Department of Environmental Protection;

      "Director" means the Director of the Division of Taxation in the Department of the Treasury;

      "Discharge" means any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of hazardous substances into the waters or onto the lands of the State, or into waters outside the jurisdiction of the State when damage may result to the lands, waters or natural resources within the jurisdiction of the State;

      "Emergency response action" means those activities conducted by a local unit to clean up, remove, prevent, contain, or mitigate a discharge that poses an immediate threat to the environment or to the public health, safety, or welfare;

      "Fair market value" means the invoice price of the hazardous substances transferred, including transportation charges; but where no price is so fixed, "fair market value" shall mean the market price as of the close of the nearest day to the transfer, paid for similar hazardous substances, as shall be determined by the taxpayer pursuant to rules of the director;

      "Fund" means the New Jersey Spill Compensation Fund;

      "Hazardous substances" means the "environmental hazardous substances" on the environmental hazardous substance list adopted by the department pursuant to section 4 of P.L.1983, c.315 (C.34:5A-4); such elements and compounds, including petroleum products, which are defined as such by the department, after public hearing, and which shall be consistent to the maximum extent possible with, and which shall include, the list of hazardous substances adopted by the federal Environmental Protection Agency pursuant to section 311 of the federal Water Pollution Control Act Amendments of 1972, Pub.L.92-500, as amended by the Clean Water Act of 1977, Pub.L.95-217 (33 U.S.C. §1251 et seq.); the list of toxic pollutants designated by Congress or the EPA pursuant to section 307 of that act; and the list of hazardous substances adopted by the federal Environmental Protection Agency pursuant to section 101 of the "Comprehensive Environmental Response, Compensation and Liability Act of 1980," Pub.L.96-510 (42 U.S.C. §9601 et seq.); provided, however, that sewage and sewage sludge shall not be considered as hazardous substances for the purposes of P.L.1976, c.141 (C.58:10-23.11 et seq.);

      "Local unit" means any county or municipality, or any agency or other instrumentality thereof, or a duly incorporated volunteer fire, ambulance, first aid, emergency, or rescue company or squad.

      "Major facility" includes, but is not limited to, any refinery, storage or transfer terminal, pipeline, deep-water port, drilling platform or any appurtenance related to any of the preceding that is used or is capable of being used to refine, produce, store, handle, transfer, process or transport hazardous substances. "Major facility" shall include a vessel only when that vessel is engaged in a transfer of hazardous substances between it and another vessel, and in any event shall not include a vessel used solely for activities directly related to recovering, containing, cleaning up or removing discharges of petroleum in the surface waters of the State, including training, research, and other activities directly related to spill response.

      A facility shall not be considered a major facility for the purpose of P.L.1976, c.141 unless it has total combined aboveground or buried storage capacity of:

      (1) 20,000 gallons or more for hazardous substances which are other than petroleum or petroleum products, or

      (2) 200,000 gallons or more for hazardous substances of all kinds.

      In determining whether a facility is a major facility for the purposes of P.L.1976, c.141 (C.58:10-23.11 et seq.), any underground storage tank at the facility used solely to store heating oil for on-site consumption shall not be considered when determining the combined storage capacity of the facility.

      For the purposes of this definition, "storage capacity" shall mean only that total combined capacity which is dedicated to, used for or intended to be used for storage of hazardous substances of all kinds. Where appropriate to the nature of the facility, storage capacity may be determined by the intended or actual use of open land or unenclosed space as well as by the capacities of tanks or other enclosed storage spaces;

      "Natural resources" means all land, fish, shellfish, wildlife, biota, air, waters and other such resources owned, managed, held in trust or otherwise controlled by the State;

      "Owner" or "operator" means, with respect to a vessel, any person owning, operating or chartering by demise such vessel; with respect to any major facility, any person owning such facility, or operating it by lease, contract or other form of agreement; with respect to abandoned or derelict major facilities, the person who owned or operated such facility immediately prior to such abandonment, or the owner at the time of discharge;

      "Person" means public or private corporations, companies, associations, societies, firms, partnerships, joint stock companies, individuals, the United States, the State of New Jersey and any of its political subdivisions or agents;

      "Petroleum" or "petroleum products" means oil or petroleum of any kind and in any form, including, but not limited to, oil, petroleum, gasoline, kerosene, fuel oil, oil sludge, oil refuse, oil mixed with other wastes, crude oils, and substances or additives to be utilized in the refining or blending of crude petroleum or petroleum stock in this State; however, any compound designated by specific chemical name on the list of hazardous substances adopted by the department pursuant to this section shall not be considered petroleum or a petroleum product for the purposes of P.L.1976, c.141, unless such compound is to be utilized in the refining or blending of crude petroleum or petroleum stock in this State;

      "Taxpayer" means the owner or operator of a major facility subject to the tax provisions of P.L.1976, c.141;

      "Tax period" means every calendar month on the basis of which the taxpayer is required to report under P.L.1976, c.141;

      "Transfer" means onloading or offloading between major facilities and vessels, or vessels and major facilities, and from vessel to vessel or major facility to major facility, except for fueling or refueling operations and except that with regard to the movement of hazardous substances other than petroleum, it shall also include any onloading of or offloading from a major facility;

      "Vessel" means every description of watercraft or other contrivance that is practically capable of being used as a means of commercial transportation of hazardous substances upon the water, whether or not self-propelled;

      "Waters" means the ocean and its estuaries to the seaward limit of the State's jurisdiction, all springs, streams and bodies of surface or groundwater, whether natural or artificial, within the boundaries of this State.

(cf: P.L.1995, c.16, s.1)

 

      1[26.] 21.1 Section 7 of P.L.1976, c.141 (C.58:10-23.11f) is amended to read as follows:

      7. a. (1) Whenever any hazardous substance is discharged, the department may, in its discretion, act to clean up and remove or arrange for the cleanup and removal of 1[such] the1 discharge or may direct the discharger to clean up and remove, or arrange for the cleanup and removal of, 1[such] the1 discharge. If the discharge occurs at any hazardous 1waste facility1 or solid waste 1[disposal]1 facility, the department may order the 1hazardous waste facility or solid waste1 facility closed for the duration of the cleanup and removal operations. The department may monitor the discharger's compliance with any such directive. Any discharger who fails to comply with such a directive shall be liable to the department in an amount equal to three times the cost of such cleanup and removal, and shall be subject to the revocation or suspension of any license 1issued1 or permit 1[he holds] held1 authorizing 1[him] that person1 to operate a hazardous 1waste facility1 or solid waste 1[disposal]1 facility.

      (2) Whenever one or more dischargers or persons cleans up and removes a discharge of a hazardous substance, those dischargers and persons shall have a right of contribution against all other dischargers and persons in any way responsible for a discharged hazardous substance who are liable for the cost of the cleanup and removal of that discharge of a hazardous substance. In an action for contribution, the contribution plaintiffs need prove only that a discharge occurred for which the contribution defendant or defendants are liable pursuant to the provisions of subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), and the contribution defendant shall have only the defenses to liability available to parties pursuant to subsection d. of section 8 of P.L.1976, c.141 (C.58:10-23.11g). 1[A letter of no association received from the department pursuant to section 28 of P.L. , c. (C. )(now pending before the Legislature as this bill) is prima facie evidence that a person has a defense to a contribution claim pursuant to this section.]1 In resolving contribution claims, a court may allocate the costs of cleanup and removal among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall affect the right of any party to seek contribution pursuant to any other statute or under common law.

      (3) [The department may, in its sole discretion, when it will expedite the cleanup and removal of any discharged hazardous substance, and when the department determines that it is in the public interest, authorize parties who have entered into an agreement with the department to clean up and remove or arrange for the cleanup and removal of a hazardous substance and who seek contribution, to collect treble damages from any contribution defendant who has failed or refused to comply with any directive, was named on the directive, and who is subject to contribution pursuant to this subsection. The treble damages shall be based on the amount of contribution owed by a contribution defendant, which share of contribution shall be determined by the court. A contribution defendant from whom treble damages is sought in a contribution action shall not be assessed treble damages by any court where the contribution defendant, for good cause shown, failed or refused to enter the settlement agreement with the department or with the contribution [plantiffs] plaintiffs or where principles of fundamental fairness will be violated. One third of an award of treble damages in a contribution action pursuant to this paragraph shall be paid to the department, which sum shall be deposited in the New Jersey Spill Compensation Fund. The other two thirds of the treble damages award shall be shared by the contribution plaintiffs in the proportion of the responsibility for the cost of the cleanup and removal that the contribution plaintiffs have agreed to with the department or in an amount as has been agreed to by those parties. Nothing in this subsection affects the rights of any party to seek contribution pursuant to any other statute or under common law.]

      1In an action for contribution taken pursuant to this subsection, a contribution plaintiff may file a claim with the court for treble damages. A contribution plaintiff may be granted an award of treble damages by the court from one or more contribution defendants only upon a finding by the court that: (a) the contribution defendant is a person who was named on or subject to a directive issued by the department, who failed or refused to comply with such a directive, and who is subject to contribution pursuant to this subsection; (b) the contribution plaintiff gave 30 days notice to the contribution defendant of the plaintiff's intention to seek treble damages pursuant to this subsection and gave the contribution defendant an opportunity to participate in the cleanup; (c) the contribution defendant failed or refused to enter into a settlement agreement with the contribution plaintiff; and (d) the contribution plaintiff entered into an agreement with the department to remediate the site. Notwithstanding the foregoing requirements, any authorization to seek treble damages made by the department prior to the effective date of P.L. , c. (pending in the Legislature as this bill) shall remain in effect, provided that the department or the contribution plaintiff gave notice to the contribution defendant of the plaintiff's request to the department for authorization to seek treble damages.

      A contribution defendant from whom treble damages is sought in a contribution action shall not be assessed treble damages by any court where the contribution defendant, for good cause shown, failed or refused to enter the settlement agreement with the contribution plaintiff or where principles of fundamental fairness will be violated. One third of an award of treble damages in a contribution action pursuant to this paragraph shall be paid to the department, which sum shall be deposited in the New Jersey Spill Compensation Fund. The other two thirds of the treble damages award shall be shared by the contribution plaintiffs in the proportion of the responsibility for the cost of the cleanup and removal that the contribution plaintiffs have agreed to with the department or in an amount as has been agreed to by those parties. Nothing in this subsection affects the rights of any party to seek contribution pursuant to any other statute or under common law.1

      Cleanup and removal of hazardous substances and actions to minimize damage from discharges shall, to the greatest extent possible, be in accordance with the National Contingency Plan for cleanup and removal of oil and hazardous substances established pursuant to section 311(c)(2) of the federal Water Pollution Control Act Amendments of 1972 (Pub.L.92-500, 33 U.S.C. §1251 et seq.). Whenever the department acts to clean up and remove a discharge or contracts to secure prospective cleanup and removal services, it is authorized to draw upon the money available in the fund. Such money shall be used to pay promptly for all cleanup and removal costs incurred by the department in cleaning up, in removing or in minimizing damage caused by such discharge.

      Nothing in this section is intended to preclude removal and cleanup operations by any person threatened by such discharges, provided such persons coordinate and obtain approval for such actions with ongoing State or federal operations. No action taken by any person to contain or clean up and remove a discharge shall be construed as an admission of liability for said discharge. No person who renders assistance in containing or cleaning up and removing a discharge shall be liable for any civil damages to third parties resulting solely from acts or omissions of such person in rendering such assistance, except for acts or omissions of gross negligence or willful misconduct. In the course of cleanup or removal operations, no person shall discharge any detergent into the waters of this State without prior authorization of the commissioner.

      b. Notwithstanding any other provisions of P.L.1976, c.141 (C.58:10-23.11 et seq.), the department, subject to the approval of the administrator with regard to the availability of funds therefor, or a local unit as a part of an emergency response action and with the approval of the department, may clean up and remove or arrange for the cleanup and removal of any hazardous substance which:

      (1) Has not been discharged from a grounded or disabled vessel, if the department determines that such cleanup and removal is necessary to prevent an imminent discharge of such hazardous substance; or

      (2) Has not been discharged, if the department determines that such substance is not satisfactorily stored or contained and said substance possesses any one or more of the following characteristics:       (a) Explosiveness;

      (b) High flammability;

      (c) Radioactivity;

      (d) Chemical properties which in combination with any discharged hazardous substance at the same storage facility would create a substantial risk of imminent damage to public health or safety or an imminent and severe damage to the environment;

      (e) Is stored in a container from which its discharge is imminent as a result of contact with a hazardous substance which has already been discharged and such additional discharge would create a substantial risk of imminent damage to public health or safety or imminent and severe damage to the environment; or

      (f) High toxicity and is stored or being transported in a container or motor vehicle, truck, rail car or other mechanized conveyance from which its discharge is imminent as a result of the significant deterioration or the precarious location of the container, motor vehicle, truck, rail car or other mechanized conveyance, and such discharge would create a substantial risk of imminent damage to public health or safety or imminent and severe damage to the environment; or

      (3) Has been discharged prior to the effective date of P.L.1976, c.141.

      c. If and to the extent that [he] the administrator determines that funds are available, the administrator shall approve and make payments for any cleanup and removal costs incurred by the department for the cleanup and removal of a hazardous substance other than petroleum as authorized by subsection b. of this section; provided that in determining the availability of funds, the administrator shall not include as available funds revenues realized or to be realized from the tax on the transfer of petroleum, to the extent that such revenues result from a tax levied at a rate in excess of $0.01 per barrel, pursuant to subsection b. of section 9 of P.L.1976, c.141 (C.58:10-23.11h), unless the administrator determines that the sum of claims paid by the fund on behalf of petroleum discharges or cleanup and removals plus pending reasonable claims against the fund on behalf of petroleum discharges or cleanup and removals is greater than 30% of the sum of all claims paid by the fund plus all pending reasonable claims against the fund.

      d. The administrator may only approve and make payments for any cleanup and removal costs incurred by the department for the cleanup and removal of a hazardous substance discharged prior to the effective date of P.L.1976, c.141, pursuant to subsection b. of this section, if, and to the extent that, 1[he]the administrator1 determines that adequate funds from another source are not or will not be available; and provided further, with regard to the cleanup and removal costs incurred for discharges which occurred prior to the effective date of P.L.1976, c.141, the administrator may not during any one-year period pay more than $18,000,000 in total or more than $3,000,000 for any discharge or related set or series of discharges.

      e. Notwithstanding any other provisions of P.L.1976, c.141, the administrator, after considering, among any other relevant factors, the department's priorities for spending funds pursuant to P.L.1976, c.141, and within the limits of available funds, shall make payments for the restoration or replacement of, or connection to an alternative water supply for, any private residential well destroyed, contaminated, or impaired as a result of a discharge prior to the effective date of P.L.1976, c.141; provided, however, total payments for said purpose shall not exceed $500,000 for the period between the effective date of this subsection e. and January 1, 1983, and in any calendar year thereafter.

      f. Any expenditures made by the administrator pursuant to this act shall constitute, in each instance, a debt of the discharger to the fund. The debt shall constitute a lien on all property owned by the discharger when a notice of lien, incorporating a description of the property of the discharger subject to the cleanup and removal and an identification of the amount of cleanup, removal and related costs expended from the fund, is duly filed with the clerk of the Superior Court. The clerk shall promptly enter upon the civil judgment or order docket the name and address of the discharger and the amount of the lien as set forth in the notice of lien. Upon entry by the clerk, the lien, to the amount committed by the administrator for cleanup and removal, shall attach to the revenues and all real and personal property of the discharger, whether or not the discharger is insolvent. The notice of lien filed pursuant to this subsection which affects the property of a discharger subject to the cleanup and removal of a discharge shall create a lien with priority over all other claims or liens which are or have been filed against the property, except if the property comprises six dwelling units or less and is used exclusively for residential purposes, this notice of lien shall not affect any valid lien, right or interest in the property filed in accordance with established procedure prior to the filing of this notice of lien. The notice of lien filed pursuant to this subsection which affects any property of a discharger, other than the property subject to the cleanup and removal, shall have priority from the day of the filing of the notice of the lien over all other claims and liens filed against the property, but shall not affect any valid lien, right, or interest in the property filed in accordance with established procedure prior to the filing of a notice of lien pursuant to this subsection.

      g. In the event a vessel discharges a hazardous substance into the waters of the State, the cleanup and removal and related costs resulting from that discharge that constitute a maritime lien on the discharging vessel pursuant to 33 U.S.C. §1321 or any other law, may be recovered by the Department of Environmental Protection in an action in rem brought in the district court of the United States. An impoundment of a vessel resulting from this action shall continue until:   (1) the claim against the owner or operator of the vessel for the cleanup and removal and related costs of the discharge is satisfied;

      (2) the owner or operator of the vessel, or a representative of the owner or operator, provides evidence of financial responsibility as provided in section 2 of P.L.1991, c.58 (C.58:10-23.11g2) and satisfactorily guarantees that these costs will be paid; or

      (3) the impoundment is otherwise vacated by a court order. The remedy provided in this subsection is in addition to any other remedy or enforcement power that the department may have under any other law.

      Any action brought by the State pursuant to this subsection and any impoundment of a vessel resulting therefrom shall not subject the State to be in any way liable for a subsequent or continued discharge of a hazardous substance from that vessel.

(cf: P.L.1991, c.373, s.14)

 

      1[27.] 22.1 Section 8 of P.L.1976, c.141 (C.58:10-23.11g) is amended to read as follows:

      8. a. The fund shall be strictly liable, without regard to fault, for all cleanup and removal costs and for all direct and indirect damages no matter by whom sustained, including but not limited to:

      (1) The cost of restoring, repairing, or replacing any real or personal property damaged or destroyed by a discharge, any income lost from the time such property is damaged to the time such property is restored, repaired or replaced, and any reduction in value of such property caused by such discharge by comparison with its value prior thereto;

      (2) The cost of restoration and replacement, where possible, of any natural resource damaged or destroyed by a discharge;

      (3) Loss of income or impairment of earning capacity due to damage to real or personal property, including natural resources destroyed or damaged by a discharge; provided that such loss or impairment exceeds 10% of the amount which claimant derives, based upon income or business records, exclusive of other sources of income, from activities related to the particular real or personal property or natural resources damaged or destroyed by such discharge during the week, month or year for which the claim is filed;

      (4) Loss of tax revenue by the State or local governments for a period of one year due to damage to real or personal property proximately resulting from a discharge;

      (5) Interest on loans obtained or other obligations incurred by a claimant for the purpose of ameliorating the adverse effects of a discharge pending the payment of a claim in full as provided by this act.

      b. The damages which may be recovered by the fund, without regard to fault, subject to the defenses enumerated in subsection d. of this section against the owner or operator of a major facility or vessel, shall not exceed [$50,000,000.00] $50,000,000 for each major facility or [$150.00]$150 per gross ton for each vessel, except that such maximum limitation shall not apply and the owner or operator shall be liable, jointly and severally, for the full amount of such damages if it can be shown that such discharge was the result of (1) gross negligence or willful misconduct, within the knowledge and privity of the owner, operator or person in charge, or (2) a gross or willful violation of applicable safety, construction or operating standards or regulations. Damages which may be recovered from, or by, any other person shall be limited to those authorized by common or statutory law.

      c. (1) Any person who has discharged a hazardous substance, or is in any way responsible for any hazardous substance, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by whom incurred. Such person shall also be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs incurred by the department or a local unit pursuant to subsection b. of section 7 of P.L.1976, c.141 (C.58:10-23.11f).

      (2) In addition to the persons liable pursuant to [paragraph (1) of] this subsection, in the case of a discharge of a hazardous substance from a vessel into the waters of the State, the owner or operator of a refinery, storage, transfer, or pipeline facility to which the vessel was en route to deliver the hazardous substance who, by contract, agreement, or otherwise, was scheduled to assume ownership of the discharged hazardous substance, and any other person who was so scheduled to assume ownership of the discharged hazardous substance, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs if the owner or operator of the vessel did not have the evidence of financial responsibility required pursuant to section 2 of P.L.1991, c.58 (C.58:10-23.11g2).

      Where a person is liable for cleanup and removal costs as provided in this paragraph, any expenditures made by the administrator for that cleanup and removal shall constitute a debt of that person to the fund. The debt shall constitute a lien on all property owned by that person when a notice of lien identifying the nature of the discharge and the amount of the cleanup, removal and related costs expended from the fund is duly filed with the clerk of the Superior Court. The clerk shall promptly enter upon the civil judgment or order docket the name and address of the liable person and the amount of the lien as set forth in the notice of lien. Upon entry by the clerk, the lien, to the amount committed by the administrator for cleanup and removal, shall attach to the revenues and all real and personal property of the liable person, whether or not that person is insolvent.

      For the purpose of determining priority of this lien over all other claims or liens which are or have been filed against the property of an owner or operator of a refinery, storage, transfer, or pipeline facility, the lien on the facility to which the discharged hazardous substance was en route shall have priority over all other claims or liens which are or have been filed against the property. The notice of lien filed pursuant to this paragraph which affects any property of a person liable pursuant to this paragraph other than the property of an owner or operator of a refinery, storage, transfer, or pipeline facility to which the discharged hazardous substance was en route, shall have priority from the day of the filing of the notice of the lien over all claims and liens filed against the property, but shall not affect any valid lien, right, or interest in the property filed in accordance with established procedure prior to the filing of a notice of lien pursuant to this paragraph.

      To the extent that a person liable pursuant to this paragraph is not otherwise liable pursuant to paragraph (1) of this subsection, or under any other provision of law or under common law, that person may bring an action for indemnification for costs paid pursuant to this paragraph against any other person who is strictly liable pursuant to paragraph (1) of this subsection.

      Nothing in this paragraph shall be construed to extend or negate the right of any person to bring an action for contribution that may exist under P.L.1976, c.141, or any other act or under common law.       (3) In addition to the persons liable pursuant to this subsection, any person who owns real property acquired on or after September 14, 1993 on which there has been a discharge prior to the person's acquisition of that property and who knew or should have known that a hazardous substance had been discharged on the real property, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by whom incurred. Such person shall also be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs incurred by the department or a local unit pursuant to subsection b. of section 7 of P.L.1976, c.141 (C.58:10-23.11f). Nothing in this paragraph shall be construed to alter the liability of any person who acquired real property prior to September 14, 1993.

      d. (1) In addition to those defenses provided in this subsection, an act or omission caused solely by war, sabotage, or God, or a combination thereof, shall be the only defenses which may be raised by any owner or operator of a major facility or vessel responsible for a discharge in any action arising under the provisions of this act.

      (2) A person, including an owner or operator of a major facility, who owns real property acquired on or after [the effective date of P.L.1993, c.139 (C.13:1K-9.6 et al.),] September 14, 1993 on which there has been a discharge, shall not be [considered a person in any way responsible] liable to the State or to any other person for the discharged hazardous substance pursuant to subsection c. of this section or pursuant to common law, [unless] if that person can establish by a preponderance of the evidence that all of the following apply:

      (a) the person acquired the real property after the discharge of that hazardous substance at the real property;

      (b) (i) at the time the person acquired the real property, the person did not know and had no reason to know that any hazardous substance had been discharged at the real property, (ii) the person acquired the real property by devise or succession, except that any other funds or property received by that person from the deceased real property owner who discharged a hazardous substance or was in any way responsible for a hazardous substance, shall be made available to satisfy the requirements of P.L.1976, c.141, (iii) the person complies with the provisions of subparagraph (e) of paragraph (2) of this subsection, or (iv) the person complies with the provisions of subparagraph (f) of paragraph (2) of this subsection;

      (c) the person did not discharge the hazardous substance and is not in any way responsible for the hazardous substance; and

      (d) the person gave notice of the discharge to the department upon actual discovery of that discharge.

      To establish that a person had no reason to know that any hazardous substance had been discharged for the purposes of this paragraph (2), the person must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property. For the purposes of this paragraph (2), all appropriate inquiry shall mean the performance of a preliminary assessment, and site investigation [(] , if the preliminary assessment indicates that a site investigation is necessary [)], as defined in section 23 of P.L.1993, c.139 (C.58:10B-1), and performed in accordance with rules and regulations promulgated by the department defining these terms.

      Nothing in this paragraph (2) shall be construed to alter liability of any person who acquired real property prior to [the effective date of P.L.1993, c.139 (C.13:1K-9.6 et al.)] September 14, 1993.

      (e) If the Department of Environmental Protection issues a no further action letter, as defined in section 23 of P.L.1993, c.139 (C.58:10B-1), for a site at which a discharge occurred prior to a person becoming the owner or operator of the site, and any institutional or engineering controls required by the remedial action workplan are maintained as required by the department, then any person who is not otherwise liable for the discharge at the site which occurred prior to the department's approval of the no further action letter shall not be liable for the cleanup and removal of the discharge or for damages to any person resulting from the discharge based solely on that person becoming an owner or operator of the site of the discharge after the effective date of P.L. , c. (now pending before the Legislature as this bill). For the purposes of this paragraph, a site shall constitute the real property defined in the remedial action workplan or, if no remedial action workplan is required, the no further action letter.

      (f) At any site at which a discharge has occurred and at which the department has not issued a no further action letter, any person not otherwise liable for any discharge that occurred prior to that person's ownership shall not be liable for cleanup of any discharge based solely on the persons becoming an owner or operator after the effective date of P.L. , c. (now pending before the Legislature as this bill), if such person remediates any immediate, direct or imminent threats to acceptable levels based on the intended use of the site. To the extent that any person seeks to utilize or develop the site, the person is responsible for 1[taking steps necessary to prevent direct contact with contamination in surface soils and to obtain] obtaining1 a no further action letter consistent with the intended use of the site. A person who receives a no further action letter pursuant to this paragraph shall not be liable for any changes in the remediation standard 1or1 for the subsequent discovery of a contaminant at the site that was discharged prior to the person acquiring the property.

      1[g. Notwithstanding any provisions of section 36 of P.L.1993, c.139 (C.58:10B-13) or any other law, rule or regulation to the contrary, the owner or operator of any contaminated property acquired on or after the effective date of P.L. , c. (now pending before the Legislature as this bill) shall not be liable for any actions, claims or damages for on-site contamination, off-site contamination or third party actions arising from contamination existing at the property prior to the owner or operator taking title to the property, or commencing operations on the property, and which was not caused by that person. Nothing in this subsection shall insulate such a person from liability for subsequently contaminating or aggravating existing contamination on the property.]1

      (3) Notwithstanding the provisions of paragraph (2) of this subsection to the contrary, if a person who owns real property obtains actual knowledge of a discharge of a hazardous substance at the real property during the period of that person's ownership and subsequently transfers ownership of the property to another person without disclosing that knowledge, the transferor shall be strictly liable for the cleanup and removal costs of the discharge and no defense under this subsection shall be available to that person.

      (4) Any federal, State, or local governmental entity which acquires ownership of real property through bankruptcy, tax delinquency, abandonment, escheat, eminent domain, condemnation or any circumstance in which the [government] governmental entity involuntarily acquires title by virtue of its function as sovereign, or where the governmental entity acquires the property by any means for the purpose of promoting the redevelopment of that property, shall not be liable for the cleanup and removal costs of any discharge which occurred or began prior to that ownership. This paragraph shall not apply to any federal, State or local governmental entity which has caused or contributed to the discharge of a hazardous substance , nor shall this paragraph apply to property acquired by the governmental entity where such property is engaged in a reasonably timely remediation or redevelopment process.

      1e.1 [e. (1) If the Department of Environmental Protection issues a no further action letter or approves a remedial action workplan after the effective date of P.L.1996, c.62 (C.55:19-20 et al.) for a site at which a discharge occurred prior to or after the effective date of P.L.1996, c.62 (C.55:19-20 et al.), then any person who is not otherwise liable for any discharge at the site which occurred prior to the department's approval of the no further action letter or remedial action workplan shall not be liable for the discharge based solely on that person becoming an owner or operator of the site of the discharge after the discharge has occurred. For the purposes of this paragraph, a site shall constitute the real property defined in the remedial action workplan or, if no remedial action workplan is required, the no further action letter. The provisions of this paragraph shall only apply when the site is located in a qualified municipality as defined pursuant to section 3 of P.L.1996, c.62 (C.55:19-22) and there is continued compliance with all of the conditions of the no further action letter, the remedial action workplan and all applicable engineering and institutional controls.

      (2) The fund established pursuant to the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.), shall not be liable for any damages incurred by any person who is relieved from liability pursuant to this subsection.] (Deleted by amendment, P.L. , c. )

      1f. Notwithstanding any provisions of section 36 of P.L.1993, c.139 (C.58:10B-13) or any other law, rule or regulation to the contrary, the owner or operator of any contaminated property acquired on or after the effective date of P.L. , c. (now pending before the Legislature as this bill) shall not be liable for any actions, claims or damages for on-site contamination, off-site contamination or third party actions arising from contamination existing at the property prior to the owner or operator taking title to the property, or commencing operations on the property, and which was not caused by that person. Nothing in this subsection shall insulate such a person from liability for subsequently contaminating or aggravating existing contamination on the property.1

(cf: P.L.1996, c.62, s.56)

 

      1[28. (New section) Whenever a person claims a defense to liability for cleanup and removal costs pursuant to paragraph (2) of subsection d. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), that person may submit to the Department of Environmental Protection evidence sufficient to prove by a preponderance of the evidence that the defense applies. Upon a finding by the department that the defense applies to that person, the department shall issue that person a letter of no association. The letter of no association shall state that, upon the evidence submitted to the department, the department finds that the person has met the statutory burden of proving a defense to liability under paragraph (2) of subsection d. of section 8 of P.L.1976, c.141 (C.58:10-23.11g) and that person, pursuant to that defense, is not liable for any cleanup and removal costs for any discharged hazardous substances that may be on that real property at the time of the issuance of the letter of no association.]1

 

      1[29.] 23.1 Section 2 of P.L.1995, c.413 (C.54:4-3.151) is amended to read as follows:

      2. The Legislature finds that there are numerous properties that are underutilized or that have been abandoned and that are not being utilized for any commercial use because of contamination that exists at those properties; that abandoned contaminated properties harm society by causing a burden on municipal services while failing to contribute to the funding of those services; that a disproportionate percentage of these properties are located in older urban municipalities given the fact that these municipalities were once the center for industrial production; that the revitalization of these properties will not only bring tax ratables to the municipality and other local governments, but will result in job creation and foster urban redevelopment; that one of the central tenets of the State Development and Redevelopment Plan is to redevelop urban areas with existing utilities and infrastructure and that the use of these now abandoned or underutilized sites for commercial purposes will make a significant contribution toward implementing the plan; that the federal "Clean Air Act" encourages the reindustrialization of urban areas as this would provide jobs near where people live thus reducing harmful air pollutants emitted from automobiles needed to travel distances to places of employment; and that it is in the economic interest of the State and the municipalities in which abandoned or underutilized contaminated properties are located to encourage the remediation of these properties so that they can be reused or fully used for commercial, residential or other productive purposes.

(cf: P.L.1995, c.413, s.2)

 

      1[30.] 24.1 30. Section 5 of P.L.1995, c.413 (C.54:4-3.154) is amended to read as follows:

      5. The governing body of a municipality which has adopted an ordinance pursuant to section 4 of P.L.1995, c.413 (C.54:4-3.153), [may] shall, by ordinance, provide for exemptions of real property taxes for environmental opportunity zones. The governing body shall include the following items in its enabling ordinance:

      a. A property tax exemption term of ten years;

      b. The application procedure for an exemption authorized under P.L.1995, c.413 (C.54:4-3.150 et seq.);

      c. The method of computing payments in lieu of real property taxes pursuant to subsection b. of section 7 of P.L.1995, c.413 (C.54:4-3.156);

      d. An approval method for exemption applications by the assessor or by ordinance on a per application basis; and

      e. A requirement that the environmental opportunity zone will be remediated in compliance with the remediation standards adopted by the Department of Environmental Protection pursuant to P.L.1993, c.139 (C.58:10B-1 et al.), that the owner of the property will enter into a memorandum of agreement or administrative consent order with the department to perform the remediation and will complete the remediation pursuant to the agreement or order, and that, once remediated, the environmental opportunity zone will be used for a commercial [or] , industrial, residential or other productive purpose during the time period for which the real property tax exemption is given.

(cf: P.L.1995, c.413, s.5)

 

      1[31.] 25.1 (New section) 1[This act]Sections 25 through 31 of P.L. , c. (C. ) (now in the Legislature as this bill)1 shall be known and may be cited as the "Brownfields Redevelopment Incentive Act."

 

      1[32.]26.1 (New section) As used in sections 1[31 through 37]25 through 311 of P.L. , c. (C. )(now pending before the Legislature as this bill):

      "Developer" means any person that enters or proposes to enter into a redevelopment agreement with the State pursuant to the provisions of section 1[33] 271 of P.L. , c. (C. )(now pending before the Legislature as this bill).

      "Director" means the Director of the Division of Taxation in the Department of the Treasury.

      "Project" or "redevelopment project" means a specific work or improvement, including lands, buildings, improvements, real and personal property or any interest therein, including lands under water, riparian rights, space rights and air rights, acquired, owned, developed or redeveloped, constructed, reconstructed, rehabilitated or improved, undertaken by a developer within an area of land whereon a contaminated site is located, under a redevelopment agreement with the State pursuant to section 1[33] 271 of P.L. , c. (C. ) (now pending before the Legislature as this bill).

      "Redevelopment agreement" means an agreement between the State and a developer under which the developer agrees to perform an agreed upon scope of work or undertaking necessary for the remediation of the contaminated site located at the site of the redevelopment project, and for the clearance, development or redevelopment, construction or rehabilitation of any structure or improvement of commercial, industrial or public structures or improvements within an area of land whereon a contaminated site is located pursuant to section 1[33] 271 of P.L. , c. (C. ) (now pending before the Legislature as this bill), and the State agrees that the developer shall be eligible for the reimbursement of 75% of the costs of remediation of the contaminated site from the fund established pursuant to section 1[36] 301 of P.L. , c. (C. ) (now pending before the Legislature as this bill) as authorized pursuant to section 1[34] 281 of P.L. , c. (C. )(pending in the Legislature as this bill).

      "Remediation" or "remediate" means all necessary actions to investigate and 1clean up or take other appropriate action to1 address any known, suspected, or threatened discharge of 1[contaminants] hazardous substances or hazardous wastes1, including, as necessary, the preliminary assessment, site investigation, remedial investigation and remedial action, as those terms are defined in section 23 of P.L.1993, c.139 (C.58:10B-1).

      "Remediation costs" means all reasonable costs associated with the remediation of a contaminated site except that "remediation costs" shall not include any costs incurred in financing the remediation.

 

      1[33.] 27.1 (New section) a. The provisions of any other law, or rule or regulation adopted pursuant thereto, to the contrary notwithstanding, any developer may enter into a redevelopment agreement with the State pursuant to the provisions of this section.

      The Commissioner of the Department of Commerce and Economic Development, in consultation with the State Treasurer, shall negotiate the terms and conditions of any redevelopment agreement on behalf of the State.

      b. In negotiating a redevelopment agreement with a developer, the commissioner shall consider the following factors:

      (1) the economic feasibility of the redevelopment project;

      (2) the extent of economic and related social distress in the municipality and the area to be affected by the redevelopment project;

      (3) the degree to which the redevelopment project will advance State, regional and local development strategies;

      (4) the likelihood that the redevelopment project shall upon completion be capable of repaying the remediation costs incurred;

      (5) the relationship of the redevelopment project to a comprehensive local development strategy, including other major projects undertaken within the municipality;

      (6) the need of the redevelopment agreement to the viability of the project; 1[and]1

      (7) the degree to which the redevelopment project enhances and promotes job creation and economic development 1;

      (8) the consistency of the redevelopment project with the rules and regulations of any State agency with regulatory jurisdiction over the property1.

 

      1[34.] 28.1 (New section) a. The provisions of any other law, or rule or regulation adopted pursuant thereto, to the contrary notwithstanding, any developer that enters into a redevelopment agreement pursuant to section 1[33] 271of P.L. , c. (C. ) (now pending before the Legislature as this bill), may, upon the commencement of a business operation within a redevelopment project, be eligible for reimbursement of 75% of the costs of the remediation of that subject property pursuant to the provisions of this section. The reimbursement, as hereinafter provided, shall be funded from the amounts due and payable under the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.) by those businesses for the taxable sales that are sold within that project area.

      b. To be eligible for reimbursement of 75% of the costs of remediation, a developer shall submit an application, in writing, to the director for review and certification of the reimbursement. The director shall review the request for the reimbursement upon receipt of an application therefor, and shall approve or deny the application for certification on a timely basis.

      The director shall certify a developer to be eligible for the reimbursement if the director finds that:

      (1) a place of business is located in the area subject to the redevelopment agreement for the purpose of making retail sales;

      (2) non-exempt items are regularly exhibited and offered for retail sale at that location;

      (3) the place of business is not utilized primarily for the purpose of catalogue or mail order sales; and

      (4) the developer has entered into a memorandum of agreement with the Commissioner of Environmental Protection for the remediation of contamination located on the site of the redevelopment project pursuant to section 1[35] 291 of P.L. , c. (C. ) (now pending before the Legislature as this bill) and is in compliance with the memorandum of agreement.

      c. When filing an application to certify a reimbursement pursuant to this section, the developer shall submit to the director a certification of the total remediation costs incurred by the developer for the remediation of the subject property located at the site of the redevelopment project as provided in the redevelopment agreement.

 

      1[35.] 29.1 (New section) a. To qualify for the certification of reimbursement of 75% of the remediation costs authorized pursuant to section 1[34] 281 of P.L. , c. (C. ) (now pending before the Legislature as this bill), a developer shall enter into a memorandum of agreement with the Commissioner of Environmental Protection for the remediation of the site of the redevelopment project.

      b. Under the memorandum of agreement, the developer shall agree to perform and complete any remediation activity as may be required by the Department of Environmental Protection to ensure the remediation is conducted pursuant to the remediation standards adopted by the Department of Environmental Protection pursuant to P.L.1993, c.139 (C.58:10B-1 et al.).

      c. After the developer has entered into a memorandum of agreement with the Commissioner of Environmental Protection, the commissioner shall submit a copy thereof to the developer, the clerk of the municipality in which the subject property is located, the Commissioner of the Department of Commerce and Economic Development and the director.

 

 

      1[36.] 30.1 (New section) a. There is created in the Department of Treasury a special fund to be known as the Brownfields Site Remediation Fund. Moneys in the fund shall be dedicated to the purpose of reimbursing a developer who enters into a redevelopment agreement pursuant to section 1[33] 271 of P.L. c. (C. ) (now pending before the Legislature as this bill) and is certified for reimbursement pursuant to section 1[34] 281of P.L. c. (C. ) (now pending before the Legislature as this bill) in an amount equal to 75% of the remediation costs of the subject property. A special account within the fund shall be created for each developer upon approval of a certification pursuant to section 1[34] 281of P.L. , c. (C. ) (now pending before the Legislature as this bill). The Legislature shall annually appropriate the entire balance of the fund for the purposes of reimbursement of remediation costs as provided in section 1[37] 311 of P.L. , c. (C. ) (pending in the Legislature as this bill).

      b. The fund shall be credited with one half of all taxes due and payable pursuant to the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.) by any person required to collect the tax at the site of a redevelopment project which is the subject of a redevelopment agreement with the State pursuant to section 1[33] 271 of P.L. , c. (C. ) (pending in the Legislature as this bill) until the amount credited equals 75% of the dollar amount of the remediation costs actually and reasonably incurred by the developer, as certified to the director by the developer.

 

1[37.] 31.1 (New section) a. The State Treasurer shall reimburse the developer for 75% of the remediation costs of the subject property from the Brownfields Site Remediation Fund upon approval of the certification for reimbursement pursuant to section 1[34] 281of P.L.   , c. (C. ) (now pending before the Legislature as this bill). The developer shall be entitled to periodic payments from the fund in an amount equal to one half of the taxes due and payable pursuant to the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.) from any person required to collect the tax at the site of a redevelopment project which is subject to a redevelopment agreement between the developer and the State pursuant to section 1[33] 271 of P.L. c. (C. ) (now pending before the Legislature as this bill). Payments from the fund shall be made to a developer at the same frequency in which the payments are made to the State from the persons required to collect the tax. Payments to the developer shall be made within 15 days of receipt by the State of the taxes.

      b. A developer shall submit to the director updated remediation costs actually incurred by the developer for the remediation of the contaminated property located at the site of the redevelopment project as provided in the redevelopment agreement. The reimbursement authorized pursuant to this section shall continue until such time as the aggregate dollar amount of the reimbursement equals 75% of the dollar amount of the remediation costs actually incurred by the developer, as certified to the director by the developer. To remain entitled to the reimbursement authorized pursuant to this section, the developer shall perform and complete all remediation activities as may be required pursuant to the memorandum of agreement entered into with the Commissioner of Environmental Protection pursuant to section 1[35] 291 of P.L. , c. (C. )(now pending before the Legislature as this bill). The Department of Environmental Protection may review the remediation costs incurred by the developer to determine if they are reasonable.

 

      1[38.] 32.1 Section 21 of P.L.1983, c.303 (C.52:27H-80) is amended to read as follows:

      21. Receipts of retail sales, except retail sales of motor vehicles, of alcoholic beverages as defined in the "Alcoholic Beverage Tax Law," R.S.54:41-1 et seq., cigarettes as defined in the "Cigarette Tax Act," P.L.1948, c.65 (C.54:40A-1 et seq.) and of manufacturing machinery, equipment or apparatus, made by a certified vendor from a place of business owned or leased and regularly operated by the vendor for the purpose of making retail sales, and located in a designated enterprise zone established pursuant to the "New Jersey Urban Enterprise Zones Act," P.L.1983, c.303 (C.52:27H-60 et al.), are exempt to the extent of 50% of the tax imposed under the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.).

      Any vendor, which is a qualified business having a place of business located in a designated enterprise zone, may apply to the Director of the Division of Taxation in the Department of the Treasury for certification pursuant to this section. The director shall certify a vendor if he shall find that the vendor owns or leases and regularly operates a place of business located in the designated enterprise zone for the purpose of making retail sales, that items are regularly exhibited and offered for retail sale at that location, and that the place of business is not utilized primarily for the purpose of catalogue or mail order sales. The certification under this section shall remain in effect during the time the business retains its status as a qualified business meeting the eligibility criteria of section 27 of P.L.1983, c.303 (C.52:27H-86). However, the director may at any time revoke a certification granted pursuant to this section if he shall determine that the vendor no longer complies with the provisions of this section.    Notwithstanding the provisions of this act to the contrary, except as may otherwise be provided by section 7 of P.L.1983, c.303 (C.52:27H-66), the authority may, in its discretion, determine whether or not the provisions of this section shall apply to any enterprise zone designated after the effective date of P.L.1985, c.142 (C.52:27H-66 et al.); provided, however, that the authority may make such a determination only where the authority finds that the award of an exemption of 50 percent of the tax imposed under the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.) will not have any adverse economic impact upon any other urban enterprise zone.

      Notwithstanding any other provisions of law to the contrary, except as provided in subsection b. of section 6 of P.L.1996, c.124 (C.13:1e-116.6) and as provided in subsection b. of section 1[36] 301 of P.L. , c. (C. ) (now pending before the Legislature as this bill), after first depositing 10 percent of the gross amount of all revenues received from the taxation of retail sales made by certified vendors from business locations in designated enterprise zones to which this exemption shall apply into the account created in the name of the authority in the enterprise zone assistance fund pursuant to section 29 of P.L.1983, c.303 (C.52:27H-88), the remaining 90 percent shall be deposited immediately upon collection by the Department of the Treasury, as follows:

      a. In the first five year period during which the State shall have collected reduced rate revenues within an enterprise zone, all such revenues shall be deposited in the enterprise zone assistance fund created pursuant to section 29 of P.L.1983, c.303 (C.52:27H-88);

      b. In the second five year period during which the State shall have collected reduced rate revenues within an enterprise zone, 66 2/3% of all those revenues shall be deposited in the enterprise zone assistance fund, and 33 1/3% shall be deposited in the General Fund;

      c. In the third five year period during which the State shall have collected reduced rate revenues within an enterprise zone, 33 1/3% of all those revenues shall be deposited in the enterprise zone assistance fund, and 66 2/3% shall be deposited in the General Fund;

      d. In the final five year period during which the State shall have collected reduced rate revenues within an enterprise zone, but not to exceed the life of the enterprise zone, all those revenues shall be deposited in the General Fund.

      Commencing on the effective date of P.L.1993, c.144, all revenues in any enterprise zone to which the provisions of this section have been extended prior to the enactment of P.L.1993, c.144 shall be deposited into the enterprise zone assistance fund until there shall have been deposited all revenues into that fund for a total of five full years, as set forth in subsection a. of this section. The State Treasurer then shall proceed to deposit funds into the enterprise zone assistance fund according to the schedule set forth in subsections b. through d. of this section, beginning at the point where the enterprise zone was located on that schedule on the effective date of P.L.1993, c.144. No enterprise zone shall receive the deposit benefit granted by any one subsection of this section for more than five cumulative years.

      The revenues required to be deposited in the enterprise zone assistance fund under this section shall be used for the purposes of that fund and for the uses prescribed in section 29 of P.L.1983, c.303 (C.52:27H-88), subject to annual appropriations being made for those purposes and uses.

(cf: P.L.1996, c.124, s.8)

 

      1[39.] 33.1 Section 5 of P.L.1983, c.330 (C.13:1K-10) is amended to read as follows:

      5. a. The department shall[, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations establishing: (1) criteria and minimum standards necessary for the submission, evaluation and approval of plans or results of preliminary assessments, site investigations, remedial investigations, and remedial action workplans and for the implementation thereof. The documents for the preliminary assessment, site investigation, remedial investigation, and remedial action workplan required to be submitted for a remediation shall not be identical to the criteria and standards used for similar documents submitted pursuant to federal law, except as may be required by federal law. In establishing criteria and minimum standards for these terms, the department shall strive to avoid duplicate or unnecessarily costly or time consuming conditions or standards] 1[develop guidance for the performance of preliminary assessments, site investigations, remedial investigations and remedial actions, and for the implementation thereof. Such guidance shall meet the criteria, objectives and goals as set forth in section 24 of P.L.1993, c.139 (C.58:10B-2), as amended by P.L. , c. (now pending before the Legislature as this bill)] , pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations establishing: (1) criteria and minimum standards necessary for the submission, evaluation and approval of plans or results of preliminary assessments, site investigations, remedial investigations, and remedial action workplans and for the implementation thereof. The documents for the preliminary assessment, site investigation, remedial investigation, and remedial action workplan required to be submitted for a remediation shall not be identical to the criteria and standards used for similar documents submitted pursuant to federal law, except as may be required by federal law. In establishing criteria and minimum standards for these terms, the department shall strive to avoid duplicate or unnecessarily costly or time consuming conditions or standards1; (2) a fee schedule, as necessary, reflecting the actual costs associated with the review of plans for or results of negative declarations, preliminary assessments, site investigations, remedial investigations, and remedial actions, and review of the implementation thereof and for any other review or approval required by the department; (3) standards and procedures for remediation agreements authorized pursuant to subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9); and (4) any other provisions or procedures necessary to implement this act.

      b. The owner or operator shall allow the department reasonable access to the industrial establishment and to offsite areas under the owner's or operator's control to inspect the premises, review records, and to take soil, groundwater, or other samples or measurements as deemed necessary by the department to verify the results of any submission made to the department and to verify the owner's or operator's compliance with the requirements of this act.

(cf: P.L.1993, c.139, s.10)

 

      1[40.] 34.1 There is appropriated to the Department of Environmental Protection from the "1996 Environmental Cleanup Fund" created pursuant to section 19 of the "Port of New Jersey Revitalization, Dredging, Environmental Cleanup, Lake Restoration, and Delaware Bay Area Economic Development Bond of 1996," P.L.1996, c.70, the sum of $5,000,000 for the investigations, determinations, and data entry as provided for in 1[that]1 section 12 of P.L. , c. (C. ) (now pending before the Legislature as this bill)1.

 

      1[41. There is appropriated to the Department of Environmental Protection from the "1996 Environmental Cleanup Fund" created pursuant to section 19 of the "Port of New Jersey Revitalization, Dredging, Environmental Cleanup, Lake Restoration, and Delaware Bay Area Economic Development Bond of 1996," P.L.1996, c.70, the sum of $3,000,000 for the data collection and entry into the geographic information system as required by that section.]1

 

      135. (New section) a. There is created the "Brownfields Redevelopment Task Force." The Task Force shall consist of five representatives from State agencies and six public members. The State agency representatives shall be from each of the following State agencies: the Office of State Planning in the Department of Treasury, the Office of Neighborhood Empowerment in the Department of Community Affairs, the New Jersey Redevelopment Authority in the Department of Commerce and Economic Development, the Department of Transportation, and the Site Remediation Program in the Department of Environmental Protection. The six public members shall be appointed by the Governor with the advice and consent of the Senate. The public members shall include to the extent practicable: a representative of commercial or residential development interests, a representative of the financial community, a representative of a public interest environmental organization, a representative of a neighborhood or community redevelopment organization, a representative of a labor or trade organization, and a representative of a regional planning entity.

      The Office of State Planning shall provide staff to implement the functions and duties of the Task Force. The public members of the Task Force shall serve without compensation but may be reimbursed for actual expenses in the performance of their duties. The Governor shall select the chairman of the Task Force.

      b. The Task Force shall prepare and update an inventory of brownfield sites in the State. In preparing the inventory, priority shall be given to those areas of the State that receive assistance from the Urban Coordinating Council or from the Office of Neighborhood Empowerment. To the extent practicable, the inventory shall include an assessment of the contaminants known or suspected to have been discharged or that are currently stored on the site, the extent of any remediation performed on the site, the site's proximity to transportation networks, and the availability of infrastructure to support the redevelopment of the site. The information gathered for the inventory shall, to the extent practicable, be made available to the public by entering it into the Department of Environmental Protection's existing geographic information system, by making this information available on the system and by making copies of any maps and data available to the public. The department may charge a reasonable fee for the reproduction of maps and data which fee shall reflect the cost of their reproduction.

      c. In addition to its functions pursuant to subsection b. of this section, the Task Force shall:

      (1) coordinate State policy on brownfields redevelopment, including incentives, regulatory programs, provision of infrastructure, and redevelopment planning assistance to local governments;

      (2) use the inventory to prioritize sites based on their immediate economic development potential;

      (3) prepare a plan of action to return these sites to productive economic use on an expedited basis;

      (4) actively market sites on the inventory to prospective developers;

      (5) use the inventory to provide a targeted environmental assessment of the sites, or of areas containing several brownfield sites, by the Department of Environmental Protection;

      (6) consult with the Pinelands Commission concerning the remediation and redevelopment of brownfield sites located in the pinelands area as designated pursuant to section 10 of P.L.1979, c.111 (C.13:18A-11);

      (7) evaluate the performance of current public incentives in encouraging the remediation of and redevelopment of brownfields; and

      (8) make recommendations to the Governor and the Legislature on means to better promote the redevelopment of brownfields, including the provision of necessary public infrastructure and methods to attract private investment in redevelopment.

      d. The Task Force shall consult with the Pinelands Commission concerning the remediation and redevelopment of brownfield sites located in the pinelands area designated pursuant to section 10 of P.L. 1979, c.111 (C.13:18A-11).

      e. As used in this section, "brownfield" means any former or current commercial or industrial site that is currently vacant or underutilized and on which there has been, or there is suspected to have been, a discharge of a contaminant.1

 

      136. Section 3 of P.L.1983, c.330 (C.13:1K-8) is amended to read as follows:

      3. As used in this act:

      "Remedial action workplan" means a plan for the remedial action to be undertaken at an industrial establishment, or at any area to which a discharge originating at the industrial establishment is migrating or has migrated; a description of the remedial action to be used to remediate the industrial establishment; a time schedule and cost estimate of the implementation of the remedial action; [and any other relevant information the department deems necessary;]

      "Closing operations" means:

      (1) the cessation of operations resulting in at least a 90 percent reduction in the total value of the product output from the entire industrial establishment, as measured on a constant, annual date-specific basis, within any five year period, or, for industrial establishments for which the product output is undefined, a 90 percent reduction in the number of employees or a 90 percent reduction in the area of operations of an industrial establishment within any five year period; provided, however, the department may approve a waiver of the provisions of this paragraph for any owner or operator who, upon application and review, evidences a good faith effort to maintain and expand product output, the number of employees, or area of operations of the affected industrial establishment;

      (2) any temporary cessation of operations of an industrial establishment for a period of not less than two years;

      (3) any judicial proceeding or final agency action through which an industrial establishment becomes nonoperational for health or safety reasons;

      (4) the initiation of bankruptcy proceedings pursuant to Chapter 7 of the federal Bankruptcy Code, 11 U.S.C. s.701 et seq. or the filing of a plan of reorganization that provides for a liquidation pursuant to Chapter 11 of the federal Bankruptcy Code, 11 U.S.C. s.1101 et seq.;       (5) any change in operations of an industrial establishment that changes the industrial establishment's Standard Industrial Classification number to one that is not subject to this act; or

      (6) the termination of a lease unless there is no disruption in operations of the industrial establishment, or the assignment of a lease;              "Transferring ownership or operations" means:

      (1) any transaction or proceeding through which an industrial establishment undergoes a change in ownership;

      (2) the sale or transfer of more than 50% of the assets of an industrial establishment within any five year period, as measured on a constant, annual date-specific basis;

      (3) the execution of a lease for a period of 99 years or longer for an industrial establishment; or

      (4) the dissolution of an entity that is an owner or operator or an indirect owner of an industrial establishment, except for any dissolution of an indirect owner of an industrial establishment whose assets would have been unavailable for the remediation of the industrial establishment if the dissolution had not occurred;

      "Change in ownership" means:

      (1) the sale or transfer of the business of an industrial establishment or any of its real property;

      (2) the sale or transfer of stock in a corporation resulting in a merger or consolidation involving the direct owner or operator or indirect owner of the industrial establishment;

      (3) the sale or transfer of stock in a corporation, or the transfer of a partnership interest, resulting in a change in the person holding the controlling interest in the direct owner or operator or indirect owner of an industrial establishment;

      (4) the sale or transfer of title to an industrial establishment or the real property of an industrial establishment by exercising an option to purchase; or

      (5) the sale or transfer of a partnership interest in a partnership that owns or operates an industrial establishment, that would reduce, by 10% or more, the assets available for remediation of the industrial establishment;

      "Change in ownership" shall not include:

      (1) a corporate reorganization not substantially affecting the ownership of the industrial establishment;

      (2) a transaction or series of transactions involving the transfer of stock, assets or both, among corporations under common ownership, if the transaction or transactions will not result in the diminution of the net worth of the corporation that directly owns or operates the industrial establishment by more than 10%, or if an equal or greater amount in assets is available for the remediation of the industrial establishment before and after the transaction or transactions;

      (3) a transaction or series of transactions involving the transfer of stock, assets or both, resulting in the merger or de facto merger or consolidation of the indirect owner with another entity, or in a change in the person holding the controlling interest of the indirect owner of an industrial establishment, when the indirect owner's assets would have been unavailable for cleanup if the transaction or transactions had not occurred;

      (4) a transfer where the transferor is the sibling, spouse, child, parent, grandparent, child of a sibling, or sibling of a parent of the transferee;

      (5) a transfer to confirm or correct any deficiencies in the recorded title of an industrial establishment;

      (6) a transfer to release a contingent or reversionary interest except for any transfer of a lessor's reversionary interest in leased real property;

      (7) a transfer of an industrial establishment by devise or intestate succession;

      (8) the granting or termination of an easement or a license to any portion of an industrial establishment;

      (9) the sale or transfer of real property pursuant to a condemnation proceeding initiated pursuant to the "Eminent Domain Act of 1971," P.L.1971, c.361 (C.20:3-1 et seq.);

      (10) execution, delivery and filing or recording of any mortgage, security interest, collateral assignment or other lien on real or personal property; or

      (11) any transfer of personal property pursuant to a valid security agreement, collateral assignment or other lien, including, but not limited to, seizure or replevin of such personal property which transfer is for the purpose of implementing the secured party's rights in the personal property which is the collateral.

      "Department" means the Department of Environmental Protection [and Energy];

      "Hazardous substances" means those elements and compounds, including petroleum products, which are defined as such by the department, after public hearing, and which shall be consistent to the maximum extent possible with, and which shall include, the list of hazardous substances adopted by the Environmental Protection Agency pursuant to Section 311 of the "Federal Water Pollution Control Act Amendments of 1972" (33 U.S.C. s.1321) and the list of toxic pollutants designated by Congress or the Environmental Protection Agency pursuant to Section 307 of that act (33 U.S.C. s.1317); except that sewage and sewage sludge shall not be considered as hazardous substances for the purposes of this act;

      "Hazardous waste" shall have the same meaning as provided in section 1 of P.L.1976, c.99 (C.13:1E-38);

      "Industrial establishment" means any place of business engaged in operations which involve the generation, manufacture, refining, transportation, treatment, storage, handling, or disposal of hazardous substances or hazardous wastes on-site, above or below ground, having a Standard Industrial Classification number within 22-39 inclusive, 46-49 inclusive, 51 or 76 as designated in the Standard Industrial Classifications Manual prepared by the Office of Management and Budget in the Executive Office of the President of the United States. Those facilities or parts of facilities subject to operational closure and post-closure maintenance requirements pursuant to the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), the "Major Hazardous Waste Facilities Siting Act," P.L.1981, c.279 (C.13:1E-49 et seq.) or the "Solid Waste Disposal Act" (42 U.S.C. s.6901 et seq.), or any establishment engaged in the production or distribution of agricultural commodities, shall not be considered industrial establishments for the purposes of this act. The department may, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), exempt certain sub-groups or classes of operations within those sub-groups within the Standard Industrial Classification major group numbers listed in this subsection upon a finding that the operation of the industrial establishment does not pose a risk to public health and safety;

      "Negative declaration" means a written declaration, submitted by the owner or operator of an industrial establishment or other person assuming responsibility for the remediation under paragraph (3) of subsection b. of section 4 of P.L.1983, c.330 to the department, certifying that there has been no discharge of hazardous substances or hazardous wastes on the site, or that any such discharge on the site or discharge that has migrated or is migrating from the site has been remediated in accordance with procedures approved by the department and in accordance with any applicable remediation regulations;

      "Discharge" means an intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying, or dumping of a hazardous substance or hazardous waste into the waters or onto the lands of the State;

      "No further action letter" means a written determination by the department that, based upon an evaluation of the historical use of the industrial establishment and the property, or of an area of concern or areas of concern, as applicable, and any other investigation or action the department deems necessary, there are no discharged hazardous substances or hazardous wastes present at the site of the industrial establishment, at the area of concern or areas of concern, or at any other site to which discharged hazardous substances or hazardous wastes originating at the industrial establishment have migrated, and that any discharged hazardous substances or hazardous wastes present at the industrial establishment or that have migrated from the site have been remediated in accordance with applicable remediation regulations;

      "Indirect owner" means any person who holds a controlling interest in a direct owner or operator, holds a controlling interest in another indirect owner, or holds an interest in a partnership which is an indirect owner or a direct owner or operator, of an industrial establishment;

      "Direct owner or operator" means any person that directly owns or operates an industrial establishment. A holder of a mortgage or other security interest in the industrial establishment shall not be deemed to be a direct owner or operator of the industrial establishment unless or until it loses its exemption under P.L.1993, c.112 (C.58:10-23.11g4 et al.) or obtains title to the industrial establishment by deed of foreclosure, by other deed, or by court order or other process;

      "Area of concern" means any location where hazardous substances or hazardous wastes are or were known or suspected to have been discharged, generated, manufactured, refined, transported, stored, handled, treated, or disposed, or where hazardous substances or hazardous wastes have or may have migrated;

      "Remediation standards" means the combination of numeric and narrative standards to which hazardous substances or hazardous wastes must be investigated or remediated as established by the department pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12);       "Owner" means any person who owns the real property of an industrial establishment or who owns the industrial establishment. A holder of a mortgage or other security interest in the industrial establishment shall not be deemed to be an owner of the industrial establishment unless or until it loses its exemption under P.L.1993, c.112 (C.58:10-23.11g4 et al.) or obtains title to the industrial establishment by deed of foreclosure, by other deed, or by court order or other process;

      "Operator" means any person, including users, tenants, or occupants, having and exercising direct actual control of the operations of an industrial establishment. A holder of a mortgage or other security interest in the industrial establishment shall not be deemed to be an operator of the industrial establishment unless or until it loses its exemption under P.L.1993, c.112 (C.58:10-23.11g4 et al.) or obtains title to the industrial establishment by deed of foreclosure, by other deed, or by court order or other process;

      "Preliminary assessment" means the first phase in the process of identifying areas of concern and determining whether hazardous substances or hazardous wastes are or were present at an industrial establishment or have migrated or are migrating from the industrial establishment, and shall include the initial search for and evaluation of, existing site specific operational and environmental information, both current and historic, to determine if further investigation concerning the documented, alleged, suspected or latent discharge of any hazardous substance or hazardous waste is required. The evaluation of historic information shall be conducted from 1932 to the present, except that the department may require the search for and evaluation of additional information relating to ownership and use of the site prior to 1932 if such information is available through diligent inquiry of public records;

      "Remediation" or "remediate" means all necessary actions to investigate and clean up or take other appropriate action to address any known, suspected, or threatened discharge of hazardous substances or hazardous wastes, including, as necessary, the preliminary assessment, site investigation, remedial investigation, and remedial action;

      "Remedial action" means those actions taken at an industrial establishment or offsite of an industrial establishment if hazardous substances or hazardous wastes have migrated or are migrating therefrom, as may be required by the department to protect public health, safety, and the environment. These actions may include the removal, treatment, containment, transportation, securing, or other engineering measures, whether of a permanent nature or otherwise, designed to ensure that any discharged hazardous substances or hazardous wastes at the site or that have migrated or are migrating from the site, are remediated in compliance with the [applicable] remediation standards selected consistent with the intended land use and applicable health risk or environmental standards;

      "Remedial investigation" means a process to determine the nature and extent of a discharge of hazardous substances or hazardous wastes at an industrial establishment or a discharge of hazardous substances or hazardous wastes that have migrated or are migrating from the site and the problems presented by a discharge, and may include data collection, site characterization, sampling, monitoring, and the gathering of any other sufficient and relevant information necessary to determine the necessity for remedial action and to support the evaluation of remedial actions consistent with the intended land use and applicable health risk or environmental standards, if necessary;

      "Site investigation" means the collection and evaluation of data adequate to determine whether or not discharged hazardous substances or hazardous wastes exist at the industrial establishment or have migrated or are migrating from the site at levels in excess of the applicable remediation standards selected consistent with the intended use of the site and applicable health risk or environmental standards. A site investigation shall be developed based upon the information collected pursuant to the preliminary assessment.1

(cf: P.L.1993, c.139, s.3)

 

      1[42.] 37.1 This act shall take effect immediately.

 

 

                             

Makes various changes in the law in order to facilitate the remediation of contaminated real property; makes an appropriation.