17. 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 particular 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.)] any 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)

    18. 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, the New Jersey Redevelopment Authority, or a county improvement authority, 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)

    19. 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)

    20. 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 surface and subsurface 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.

    c. (1) The department shall develop permanent residential and nonresidential surface soil remediation standards and permanent subsurface soil remediation standards that are protective of public health and safety. For contaminants that are mobile and transportable to groundwater or surface water, the [residential and nonresidential] permanent subsurface soil remediation standards shall be protective of groundwater and surface water. Residential surface 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 surface 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. Permanent 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 and surface water. 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 surface soil and that access to that site be restricted in a manner compatible with the allowable use of that property. 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.

    (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 areas where the groundwater is highly 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. 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.).

    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 surface 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 surface soil remediation standard for either residential use or nonresidential use or a subsurface soil remediation standard 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 surface soil remediation standard or an alternative subsurface soil remediation standard. The use of an alternative surface or subsurface 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 surface or subsurface 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 surface or subsurface 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 surface or subsurface 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.

    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 surface or subsurface 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 surface soil remediation standard or the subsurface soil remediation standard adopted by the department for a particular contaminant pursuant to this section. The department may require an alternative remediation standard pursuant to this paragraph upon a determination by the department, based on the weight of the scientific evidence, that due to specific physical site characteristics of the subject real property, the use of the adopted residential use or nonresidential use surface soil remediation standards or the subsurface soil remediation standards would not be protective 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) Permanent and nonpermanent [remedies] remedial actions shall be allowed [except that permanent remedies shall be preferred over nonpermanent remedies for remedial actions] and no preference shall be given to either a permanent or nonpermanent remedial action so long as the selected remedial action meets the health risk level established in subsection d. of this section, and where, as applicable, is protective of the environment. 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 all the criteria for remedial action selection enumerated in this section are met. 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 action;      (2) Contamination may, upon the department's approval, be left onsite at levels or concentrations that exceed the minimum surface 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 surface soil that has not been remediated to the residential surface soil remediation standards, or real property on which the surface or subsurface 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 surface soil are remediated to meet the residential surface 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 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 to implement the proposed remedial action within a reasonable time frame without jeopardizing public health, safety or the environment;

    (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;] 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.

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

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

    (2) The department shall develop recommendations for remedial actions in large areas of historic industrial contamination. These recommendations shall be designed to meet the health risk 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 surface soil remediation standard, or the use of institutional or engineering controls, require the owner of that real property, except as provided in section 36 of P.L.1993, c.139 (C.58:10B-13), to restrict the use of that property through the filing of a deed easement, covenant, or condition.

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

    j. Upon the approval by the department of a remedial action workplan, or similar plan that describes the extent of contamination at a site and the remedial action to be implemented to address that contamination, the department may not subsequently require a change to that workplan or similar plan in order to compel a different remediation standard due to the fact that the established remediation standards have changed; however, the department may compel a different remediation standard if the difference between the new remediation standard and the remediation standard approved in the workplan or other plan differs by an order of magnitude. The limitation to the department's authority to change a workplan or similar plan pursuant to this subsection shall only apply if the workplan or similar plan is being implemented in a reasonable timeframe, as may be indicated in the approved remedial action workplan or similar plan.                                                                     k. Notwithstanding any other provisions of this section, all remediation standards and remedial actions that involve real property located in the Pinelands area shall be consistent with the provisions of the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.), any rules and regulations promulgated pursuant thereto, and with section 502 of the National Parks and Recreation Act of 1978, 16 U.S.C. §4711.

    l. Upon the adoption of a remediation standard for a particular contaminant in surface or subsurface 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 surface 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.).

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

    21. 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 for surface or subsurface soil, groundwater, or surface water, the department shall, as a condition of the use of that standard or control measure:

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

    (2) require, with the consent of the owner of the real property, the recording with the office of the county recording officer, in the county in which the property is located, a notice to inform prospective holders of an interest in the property that contamination exists on the property at a level that may statutorily restrict certain uses of or access to all or part of that property, a delineation of those restrictions, a description of all specific engineering or institutional controls at the property that exist and that shall be maintained in order to prevent exposure to contaminants remaining on the property, and the written consent to the notice by the owner of the property. The notice shall be recorded in the same manner as are deeds and other interests in real property;

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

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

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

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

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

    c. Whenever engineering or institutional controls on property as provided in subsection a. of this section are no longer required, or whenever the engineering or institutional controls are changed because of the performance of subsequent remedial activities, a change in conditions at the site, or the adoption of revised remediation standards, the department shall require that the owner or operator of that property record with the office of the county recording officer a notice that the use of the property is no longer restricted or delineating the new restrictions. The department shall also require that the owner or operator notify, in writing, the municipality in which the property is located of the removal or change of the restrictive use conditions.     d. The owner or lessee of any real property, or any person operating a business on real property, which has been remediated to a nonresidential use surface soil remediation standard or on which the department has allowed engineering or institutional controls for surface or subsurface 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 surface or subsurface soil, or any 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 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 surface or subsurface 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.

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

    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 soils. The guidance document shall include a description of remedial actions the department determines are effective in remediating surface 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)

    23. 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 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)

    24. 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 be 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)

    25. 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.) For the purposes of this definition, costs incurred by the State shall not include any indirect costs or fringe benefit costs but may include only those program costs directly related to the cleanup and removal of the discharge;

    "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)

    26. 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 such discharge or may direct the discharger to clean up and remove, or arrange for the cleanup and removal of, such discharge. If the discharge occurs at any hazardous or solid waste disposal facility, the department may order the 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 or permit he holds authorizing him to operate a hazardous or solid waste disposal 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). A letter of no association received from the department pursuant to section 28 of P.L. , c. (C. )(now before the Legislature as this bill) is prima facie evidence that a person has a defense to a contribution claim pursuant to this section. 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.

    (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] A person who has cleaned up and removed or arranged for the cleanup and removal of a hazardous substance and who [seek] seeks contribution, may seek to collect treble damages from any contribution defendant who has failed or refused to comply with any directive issued by the Department of Environmental Protection, 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.     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, he 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)

    27. 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 for each major facility or $150.00 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 persons acquisition of that property and who knew or should have known that a hazardous substance had been discharged at 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 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) For the purposes of this subparagraph the person must have (i) acquired the property subsequent to a contaminant being discharged on the site and which discharge was discovered at the time of acquisition as a result of the appropriate inquiry, as defined in this paragraph (2), (ii) performed a remedial investigation for all soils, (iii) performed a remedial action to prevent or stop any immediate, direct, or imminent threats to the public health or the environment, (iv) performed a remedial action, consistent with section 35 of P.L.1993, c.139 (C.58:10B-12), to prevent direct contact with contamination in surface soils consistent with the planned use of the property and under a Memorandum of Agreement or Administrative Consent Order with the Department of Environmental Protection, (v) established all engineering and institutional controls as may be required pursuant sections 35 and 36 of P.L.1993, c.139, and (vi) complied with the remedial action workplan approved by the department and any conditions of a no further action letter issued by the department. In order for a person to comply with the provisions of this subparagraph, the person must begin all necessary parts of a remediation within a reasonable amount of time and complete the remediation within the reasonable time frames established by the department. A person who complies with the provisions of this subparagraph shall be issued a no further action letter by the department and shall not be liable for any changes in a remediation standard or for the subsequent discovery of a contaminant at the site that was discharged prior to the person acquiring the property. Compliance with the provisions of this subparagraph (e) shall not relieve the person of any liability for a discharge that occurs at that property after the person acquires the property, for any actions that person negligently takes that aggravates or contributes to a discharge of a contaminant, or if that person fails to maintain the institutional or engineering controls on the property.

    (f) For the purposes of this subparagraph the person must have (i) acquired the property subsequent to a contaminant being discharged on the site, (ii) the Department of Environmental Protection had previously issued a no further action letter for all areas of concern on the site, and (iii) all institutional and engineering controls are maintained on the property pursuant to the conditions imposed upon the department. A person who complies with the provisions of this subparagraph (f) shall not be liable for any changes in a remediation standard or for the subsequent discovery of a contaminant at the site that was discharged prior to the person acquiring the property. Compliance with the provisions of this subparagraph (f) shall not relieve the person of any liability for a discharge that occurs at that property after the person acquires the property, for any actions that person negligently takes that aggravates or contributes to a discharge of a contaminant, or if that person fails to maintain the institutional and engineering controls on the property.

    (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.

    [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.]

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

    28. (New section) Whenever a person has 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.

    29. 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)

    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)

    31. (New section) This act shall be known and may be cited as the "Brownfield Redevelopment Incentive Act."

    32. (New section) As used in sections 31 through 37 of P.L. , c. (C. )(now 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 33 of P.L. , c. (C. )(pending in 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 or located, under a redevelopment agreement with the State pursuant to section 33 of P.L. , c. (C. ) (pending in the Legislature as this bill).

    "Redevelopment agreement" means an agreement between the State and a developer under which the developer agrees to perform any 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 33 of P.L.    , c. (C. ) (pending in 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 36 of P.L. c. (C. ) (pending in the Legislature as this bill) as authorized pursuant to section 34 of P.L.    , c. (C. )(pending in the Legislature as this bill).

    "Remediation" or "remediate" means all necessary actions to investigate and clean up any known, suspected, or threatened discharge of contaminants, 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.

    33. (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; and

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

    34. (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 33 of P.L. , c. (C. ) (pending in the Legislature as this bill), may be eligible for reimbursement of 75% of the costs of the remediation of the subject property pursuant to the provisions of this section upon the commencement of a business operation within a redevelopment project, the sales receipts of which are subject to the tax imposed under the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.).

    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 shall find 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 35 of P.L. , c. (C. ) (pending in the Legislature as this bill) and is in compliance with the memorandum of agreement.

    c. When filing an application for certification for 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.

    35. (New section) a. To qualify for the certification of reimbursement of 75% of the remediation costs authorized pursuant to section 34 of P.L. , c. (C. ) (pending in 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.

    36. (New section) a. There is created in the Department of Treasury a special fund to be known as the Brownfield 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 33 of P.L. c. (C. ) (pending in the Legislature as this bill) and is certified for reimbursement pursuant to section 34 of P.L. c. (C. ) (pending in 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 34 of P.L. , c. (C. ) (pending in 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 37 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 33 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.

    37. (New section) a. The State Treasurer shall reimburse the developer for 75% of the remediation costs of the subject property from the Brownfield Site Remediation Fund upon approval of certification of the reimbursement pursuant to section 34 of P.L. , c.    (C. ) (pending in 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 33 of P.L. c. (C. ) (pending in 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 35 of P.L. , c. (C. )(pending in 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.

    38. 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 36 of P.L. , c. (C.    ) (pending in 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.1993, c.367, s.6)

    39. Section 2 of P.L.1960, c.183 (C.40:37A-45) is amended to read as follows:

    2. As used in this act, unless a different meaning clearly appears from the context:

    (a) "Authority" shall mean a public body created pursuant to this act;

    (b) "Bond resolution" shall have the meaning ascribed thereto in section 17 of P.L.1960, c.183 (C.40:37A-60);

    (c) "Bonds" shall mean bonds, notes or other obligations issued pursuant to this act;

    (d) "Construct" and "construction" shall connote and include acts of clearance, demolition, construction, development or redevelopment, reconstruction, replacement, extension, improvement and betterment;       (e) "Cost" shall mean, in addition to the usual connotations thereof, the cost of planning, acquisition or construction of all or any part of any public facility or facilities of an authority and of all or any property, rights, easements, privileges, agreements and franchises deemed by the authority to be necessary or useful and convenient therefor or in connection therewith, including interest or discount on bonds, cost of issuance of bonds, architectural, engineering and inspection costs and legal expenses, cost of financial, professional and other estimates and advice, organization, administrative, operating and other expenses of the authority prior to and during such acquisition or construction, and all such other expenses as may be necessary or incident to the financing, acquisition, construction and completion of such public facility or facilities or part thereof and the placing of the same fully in operation or the disposition of the same, and also such provision or reserves for working capital, operating, maintenance or replacement expenses or for payment or security of principal of or interest on bonds during or after such acquisition or construction as the authority may determine, and also reimbursements to the authority or any governmental unit or person of any moneys theretofore expended for the purposes of the authority;

    (f) The term "county" shall mean any county of any class of the State and shall include, without limitation, the terms "the county" and "beneficiary county" defined in this act, and the term "the county" shall mean the county which created an authority pursuant to this act;

    (g) "Development project" shall mean any lands, structures, or property or facilities acquired or constructed or to be acquired or constructed by an authority for the purposes of the authority described in subsection (e) of section 11 of P.L.1960, c.183 (C.40:37A-54);

    (h) "Facility charges" shall have the meaning ascribed to said term in section 14 of P.L.1960, c.183 (C.40:37A-57);

    (i) "Facility revenues" shall have the meaning ascribed to said term in subsection (e) of section 20 of P.L.1960, c.183 (C.40:37A-63);

    (j) "Governing body" shall mean, in the case of a county, the board of chosen freeholders, or in the case of a county operating under article 3 or 5 of the "Optional County Charter Law" (P.L.1972, c.154; C.40:41A-1 et seq.) as defined thereunder, and, in the case of a municipality, the commission, council, board or body, by whatever name it may be known, having charge of the finances of the municipality;

    (k) "Governmental unit" shall mean the United States of America or the State or any county or municipality or any subdivision, department, agency, or instrumentality heretofore or hereafter created, designated or established by or for the United States of America or the State or any county or municipality;

    (l) "Local bond law" shall mean chapter 2 of Title 40A, Municipalities and Counties, of the New Jersey Statutes (N.J.S.) as amended and supplemented;

    (m) "Municipality" shall mean any city, borough, village, town, or township of the State but not a county or a school district;

    (n) "Person" shall mean any person, partnership, association, corporation or entity other than a nation, state, county or municipality or any subdivision, department, agency or instrumentality thereof;

    (o) "Project" shall have the meaning ascribed to said term in section 17 of P.L.1960, c.183 (C.40:37A-60);

    (p) "Public facility" shall mean any lands, structures, franchises, equipment, or other property or facilities acquired, constructed, owned, financed, or leased by the authority or any other governmental unit or person to accomplish any of the purposes of an authority authorized by section 11 of P.L.1960, c.183 (C.40:37A-54);

    (q) "Real property" shall mean lands within or without the State, above or below water, and improvements thereof or thereon, or any riparian or other rights or interests therein;

    (r) "Garbage and solid waste disposal system" shall mean the plants, structures and other real and personal property acquired, constructed or operated or to be acquired, constructed or operated by a county improvement authority, including incinerators, sanitary landfill facilities or other plants for the treatment and disposal of garbage, solid waste and refuse matter and all other real and personal property and rights therein and appurtenances necessary or useful and convenient for the collection and treatment or disposal in a sanitary manner of garbage, solid waste and refuse matter (but not including sewage);

    (s) "Garbage, solid waste or refuse matter" shall mean garbage, refuse and other discarded materials resulting from industrial, commercial and agricultural operations, and from domestic and community activities, and shall include all other waste materials including sludge, chemical waste, hazardous wastes and liquids, except for liquids which are treated in public sewage treatment plants and except for solid animal and vegetable wastes collected by swine producers licensed by the State Department of Agriculture to collect, prepare and feed such wastes to swine on their own farms;

    (t) "Blighted, deteriorated or deteriorating area" may include an area determined heretofore by the municipality to be blighted in accordance with the provisions of P.L.1949, c.187, repealed by P.L.1992, c.79 (C.40:55-21.1 et seq.) and, in addition, areas which are determined by the municipality, pursuant to the same procedures as provided in said law, to be blighted, deteriorated or deteriorating because of structures or improvements which are dilapidated or characterized by disrepair, lack of ventilation or light or sanitary facilities, faulty arrangement, location, or design, or other unhealthful or unsafe conditions;

    (u) "Redevelopment" may include planning, replanning, conservation, rehabilitation, clearance, remediation, development and redevelopment; and the construction and rehabilitation and provision for construction and rehabilitation of residential, commercial, industrial, public or other structures and the grant or dedication or rededication of spaces as may be appropriate or necessary in the interest of the general welfare for streets, parks, playgrounds, or other public purposes including recreational and other facilities incidental or appurtenant thereto, in accordance with a redevelopment plan approved by the governing body of a municipality;

    (v) "Redevelopment plan" shall mean a plan as it exists from time to time for the redevelopment of all or any part of a redevelopment area, which plan shall be sufficiently complete to indicate such land acquisition, demolition and removal of structures, redevelopment, improvements, conservation or rehabilitation as may be proposed to be carried out in the area of the project, zoning and planning changes, if any, land uses, maximum densities, building requirements, the plan's relationship to definite local objectives respecting appropriate land uses, improved traffic, public transportation, public utilities, recreational and community facilities, and other public improvements, the need for and extent of remediation of any lands, and provision for relocation of any residents and occupants to be displaced in a manner which has been or is likely to be approved by the Department of Community Affairs pursuant to the "Relocation Assistance Law of 1967," P.L.1967, c.79 (C.52:31B-1 et seq.) and the "Relocation Assistance Act," P.L.1971, c.362 (C.20:4-1 et seq.) and rules and regulations pursuant thereto;

    (w) "Redevelopment project" shall mean any undertakings and activities for the elimination, and for the prevention of the development or spread, of blighted, deteriorated, or deteriorating areas and may involve any work or undertaking pursuant to a redevelopment plan; such undertaking may include: (1) acquisition of real property and demolition, removal or rehabilitation of buildings and improvements thereon; (2) carrying out plans for a program of voluntary repair and rehabilitation of buildings or other improvements; and (3) installation, construction or reconstruction of streets, utilities, parks, playgrounds or other improvements necessary for carrying out the objectives of the redevelopment project;

    (x) "Redeveloper" shall mean any person or governmental unit that shall enter into or propose to enter into a contract with an authority for the redevelopment of an area or any part thereof under the provisions of this act;

    (y) "Redevelopment area" shall mean an area of a municipality which the governing body thereof finds is a blighted area, is a contaminated redevelopment site, or an area in need of rehabilitation whose redevelopment is necessary to effectuate the public purposes declared in this act. A redevelopment area may include lands, buildings, or improvements which of themselves are not detrimental to the public health, safety or welfare, but whose inclusion is found necessary, with or without change in their condition, for the effective redevelopment of the area of which they are a part;

    (z) "Sludge" shall mean any solid, semisolid, or liquid waste generated from a municipal, industrial or other sewage treatment plant, water supply treatment plant, or air pollution control facility, or any other such waste having similar characteristics and effects, but shall not include effluent; [and ]

    (aa) "Beneficiary county" shall mean any county that has not created an authority pursuant to this act ;

    (bb) "Contaminated redevelopment site" means any parcel of real property that is now vacant or underutilized, which is in need of a remediation due to a perceived or actual discharge or threatened discharge of a contaminant, and which has been so designated by the municipality in which it is located. "Contaminated redevelopment site" shall include any environmental opportunity zone designated as such by a municipality pursuant to P.L.1995, c.413 (C.54:4-3.150 et seq) and any blighted, deteriorated or deteriorating area as defined in this section if the municipality in which the property is located determines that there is a known, suspected, or threatened discharge of a contaminant in the area;

    (cc) "Remediation" means all necessary actions to investigate and clean up any known, suspected, or threatened discharge of contaminants, including, as necessary, the preliminary assessment, site investigation, remedial investigation, and remedial action;

    (dd) "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) and;

    (ee) "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.

(cf: P.L.1994, c.76, s.1)

    40. Section 11 of P.L.1960, c.183 (C.40:37A-54) is amended to read as follows:

    11. The purposes of every authority shall be (a) provision within the county or any beneficiary county of public facilities for use by the State, the county or any beneficiary county, or any municipality in any such county, or any two or more or any subdivisions, departments, agencies or instrumentalities of any of the foregoing for any of their respective governmental purposes, (b) provision within the county or any beneficiary county of public facilities for use as convention halls, or the rehabilitation, improvement or enlargement of any convention hall, including appropriate and desirable appurtenances located within the convention hall or near, adjacent to or over it within boundaries determined at the discretion of the authority, including but not limited to office facilities, commercial facilities, community service facilities, parking facilities, hotel facilities and other facilities for the accommodation and entertainment of tourists and visitors, (c) provision within the county or any beneficiary county of structures, franchises, equipment and facilities for operation of public transportation or for terminal purposes, including development and improvement of port terminal structures, facilities and equipment for public use in counties in, along or through which a navigable river flows, (d) provision within the county or any beneficiary county of structures or other facilities used or operated by the authority or any governmental unit in connection with, or relative to development and improvement of, aviation for military or civilian purposes, including research in connection therewith, and including structures or other facilities for the accommodation of passengers, (e) provision within the county or any beneficiary county of a public facility for a combination of governmental and nongovernmental uses; provided that not more than 50% of the usable space in any such facility shall be made available for nongovernmental use under a lease or other agreement by or with the authority, (f) acquisition of any real property within the county or any beneficiary county, with or without the improvements thereof or thereon or personal property appurtenant or incidental thereto, from the United States of America or any department, agency or instrumentality heretofore or hereafter created, designated or established by or for it, and the clearance, development or redevelopment, improvement, use or disposition of the acquired lands and premises in accordance with the provisions and for the purposes stated in this act, including the construction, reconstruction, demolition, rehabilitation, conversion, repair or alteration of improvements on or to said lands and premises, and structures and facilities incidental to the foregoing as may be necessary, convenient or desirable, (g) acquisition, construction, maintenance and operation of garbage and solid waste disposal systems for the purpose of collecting and disposing of garbage, solid waste or refuse matter, whether owned or operated by any person, the authority or any other governmental unit, within or without the county or any beneficiary county, (h) the improvement, furtherance and promotion of the tourist industries and recreational attractiveness of the county or any beneficiary county through the planning, acquisition, construction, improvement, maintenance and operation of facilities for the recreation and entertainment of the public, which facilities may include, without being limited to, a center for the performing and visual arts, (i) provision of loans and other financial assistance and technical assistance for the construction, reconstruction, demolition, rehabilitation, conversion, repair or alteration of buildings or facilities designed to provide decent, safe and sanitary dwelling units for persons of low and moderate income in need of housing, including the acquisition of land, equipment or other real or personal properties which the authority determines to be necessary, convenient or desirable appurtenances, all in accordance with the provisions of this act, as amended and supplemented, (j) planning, initiating and carrying out redevelopment projects for the elimination, and for the prevention of the development or spread of blighted, deteriorated or deteriorating areas and the disposition, for uses in accordance with the objectives of the redevelopment project, of any property or part thereof acquired in the area of such project, (k) any combination or combinations of the foregoing or following, [and] (l) subject to the prior approval of the Local Finance Board, the planning, design, acquisition, construction, improvement, renovation, installation, maintenance and operation of facilities or any other type of real or personal property within the county for a corporation or other person organized for any one or more of the purposes described in subsection a. of N.J.S.15A:2-1 except those facilities or any other type of real or personal property which can be financed pursuant to the provisions of P.L.1972, c.29 (C.26:2I-1 et seq.) as amended, and (m) planning, initiating, promoting, financing, and coordinating necessary actions to remediate and redevelop contaminated redevelopment sites.

(cf: P.L.1994, c.110, s.1)

    41. Section 12 of P.L.1960, c.183 (C.40:37A-55) is amended to read as follows:

    12. Every authority shall be a public body politic and corporate constituting a political subdivision of the State established as an instrumentality exercising public and essential governmental functions to provide for the public convenience, benefit and welfare and shall have perpetual succession and, for the effectuation of its purposes, have the following additional powers:

    (a) To adopt and have a common seal and to alter the same at pleasure;

    (b) To sue and be sued;

    (c) To acquire, hold, use and dispose of its facility charges and other revenues and other moneys;

    (d) To acquire, rent, hold, use and dispose of other personal property for the purposes of the authority;

    (e) Subject to the provisions of section 26 of this act, to acquire by purchase, gift, condemnation or otherwise, or lease as lessee, real property and easements or interests therein necessary or useful and convenient for the purposes of the authority, whether subject to mortgages, deeds of trust or other liens or otherwise, and to hold and to use the same, and to dispose of property so acquired no longer necessary for the purposes of the authority; provided that the authority may dispose of such property at any time to any governmental unit or person if the authority shall receive a leasehold interest in the property for such term as the authority deems appropriate to fulfill its purposes;

    (f) Subject to the provisions of section 13 of this act, to lease to any governmental unit or person, all or any part of any public facility for such consideration and for such period or periods of time and upon such other terms and conditions as it may fix and agree upon;

    (g) To enter into agreements to lease, as lessee, public facilities for such term and under such conditions as the authority may deem necessary and desirable to fulfill its purposes, and to agree, pursuant thereto, to be unconditionally obligated to make payments for the term of the lease, without set-off or counterclaim, whether or not the public facility is completed, operating or operable, and notwithstanding the destruction of, damage to, or suspension, interruption, interference, reduction or curtailment of the availability or output of the public facility to which the agreement applies;

    (h) To extend credit or make loans to any governmental unit or person for the planning, design, acquisition, construction, equipping and furnishing of a public facility, upon the terms and conditions that the loans be secured by loan and security agreements, mortgages, leases and other instruments, the payments on which shall be sufficient to pay the principal of and interest on any bonds issued for the purpose by the authority, and upon such other terms and conditions as the authority shall deem reasonable;

    (i) Subject to the provisions of section 13 of this act, to make agreements of any kind with any governmental unit or person for the use or operation of all or any part of any public facility for such consideration and for such period or periods of time and upon such other terms and conditions as it may fix and agree upon;

    (j) To borrow money and issue negotiable bonds or notes or other obligations and provide for and secure the payment of any bonds and the rights of the holders thereof, and to purchase, hold and dispose of any bonds;

    (k) To apply for and to accept gifts or grants of real or personal property, money, material, labor or supplies for the purposes of the authority from any governmental unit or person, and to make and perform agreements and contracts and to do any and all things necessary or useful and convenient in connection with the procuring, acceptance or disposition of such gifts or grants;

    (l) To determine the location, type and character of any public facility and all other matters in connection with all or any part of any public facility which it is authorized to own, construct, establish, effectuate or control;

    (m) To make and enforce bylaws or rules and regulations for the management and regulation of its business and affairs and for the use, maintenance and operation of any public facility, and to amend the same;

    (n) To do and perform any acts and things authorized by this act under, through or by means of its own officers, agents and employees, or by contract with any governmental unit or person;

    ( o ) To acquire, purchase, construct, lease, operate, maintain and undertake any project and to fix and collect facility charges for the use thereof;

    (p) To mortgage, pledge or assign or otherwise encumber all or any portion of its revenues and other income, real and personal property, projects and facilities for the purpose of securing its bonds, notes and other obligations or otherwise in furtherance of the purpose of this act;

    (q) To extend credit or make loans to redevelopers for the planning, designing, acquiring, constructing, reconstructing, improving, remediation, equipping and furnishing any redevelopment project or redevelopment work;

    (r) To conduct examinations and investigations, hear testimony and take proof, under oath at public or private hearings of any material matter, require the attendance of witnesses and the production of books and papers and issue commissions for the examination of witnesses who are out of the State, unable to attend, or excused from attendance;

    (s) To authorize a committee designated by it consisting of one or more members, or counsel, or any officer or employee to conduct any such investigation or examination, in which case such committee, counsel, officer or employee shall have power to administer oaths, take affidavits and issue [subpenas] subpoenas or commissions; [and]

    (t) To enter into any and all agreements or contracts, execute any and all instruments, and do and perform any and all acts or things necessary, convenient or desirable for the purposes of the authority or to carry out any power expressly given in this act subject to P.L.1971, c.198, "Local Public Contracts Law" (C.40A:11-1 et seq.) ; and

    (u) To conduct and coordinate public outreach efforts to inform the public of the health and environmental risks, as well as the economic

benefits, of the remediation and redevelopment of contaminated redevelopment sites.

(cf: P.L.1982, c. 113, s. 8)

    42. (New section) For purposes of the redevelopment of contaminated redevelopment areas, and subject to the provisions of this act, a county improvement authority may:

    a. Acquire or contract to acquire from any person, firm or corporation, public or private, by contribution, gift, grant, bequest, devise, purchase, condemnation or otherwise, real or personal property or any interest therein, including such property as it may deem necessary or proper, although temporarily not required for such purposes, in a redevelopment area and in any area designated by the municipal governing body as necessary for carrying out the relocation of the residents, industry and commerce displaced from a redevelopment area;

    b. Demolish, remove or rehabilitate buildings or other improvements in any area acquired and install, construct or reconstruct streets, facilities, utilities and site improvements essential to the preparation of sites for use in accordance with the redevelopment plan;

    c. Relocate or arrange for the relocation of residents and occupants of an area;

    d. Dispose of land so acquired for the uses specified in the redevelopment plan as determined by it to any person, firm, or corporation or to any public agency by sale, lease or exchange;

    e. Request the municipal planning board, if any, to recommend and the municipal governing body pursuant to existing law to designate blighted areas in need of redevelopment and to make recommendations for such development;

    f. Study the recommendations of the municipal planning board for redevelopment of any area and to make its own investigations and recommendations as to current trends in the municipality, blighted areas and blighting factor, to the governing body of the municipality thereon;

    g. Publish and disseminate information;

    h. Prepare or arrange by contract for preparation of plans by registered architects or licensed professional engineers or planners for the carrying out of the redevelopment projects;

    i. Arrange or contract with public agencies or redevelopers for the planning, replanning, conservation, rehabilitation, construction, or undertaking of any project, or redevelopment work, or any part thereof, to provide as part of any such arrangement or contract for extension of credit or making of loans to redevelopers to finance any project or redevelopment work, and to arrange or contract with public agencies for the opening, grading or closing of streets, roads, roadways, alleys, or other places or for the furnishing of facilities or for the acquisition by such agency of property options or property rights or for the furnishing of property or services in connection with a redevelopment area;

    j. Arrange or contract with a public agency, to the extent that it is within the scope of that agency's functions, to cause the services customarily provided by such other agency to be rendered for the benefit of the occupants of any redevelopment area, and to have such other agency provide and maintain parks, recreation centers, schools, sewerage, transportation, water and other municipal facilities adjacent to or in connection with redevelopment areas;

    k. Enter upon any building or property in any redevelopment area in order to conduct investigations or make surveys, soundings or test borings necessary to carry out the purposes of this act;

     l . Arrange or contract with a public agency for the relocation of residents, industry or commerce displaced from a redevelopment area;

    m. Make (1) plans for carrying out a program of voluntary repair and rehabilitation of buildings and improvements; and (2) plans for the enforcement of laws, codes, and regulations relating to the use of land and the use and occupancy of buildings and improvements, and to the compulsory repair, rehabilitation, demolition, or removal of buildings and improvements;

    n. Develop, test, and report methods and techniques, and carry out demonstrations and other activities, for the prevention and the elimination of blight; and

     o. To finance by mortgage loans or otherwise the construction or establishment of retail food outlets and to make temporary loans or advances in anticipation of permanent loans.

    43. 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 in this section.

    44. 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 this section.

    45. This act shall take effect immediately.

STATEMENT

    The intent of this bill, the "Brownfields Cleanup Act," is to remove impediments in the law, and to create incentives, in order to promote and facilitate the cleanup and reuse of New Jersey's older industrial sites. The redevelopment of these industrial sites will help protect the public health and environment, conserve open space, improve the economy, create jobs, and revitalize our cities and neighborhoods.

    Because New Jersey is an older, industrial state, it has many properties that were formerly used for industrial or commercial purposes but which are, today, either abandoned or underutilized. Many of these properties are contaminated with hazardous substances or at least suspected of being contaminated. Most of these properties are located in the State’s urban areas. These former industrial sites, often referred to as “brownfields,” can be a blight to a neighborhood and a financial drain to a municipality. They can pose environmental risks due to their uncontrolled environmental condition and a safety hazard for children. Were these sites to be remediated and redeveloped the health of New Jersey’s citizens and of the environment would be protected, jobs would be created, neighborhoods would be restored, and tax revenues on both the State and local levels would be increased.

    The need to clean up brownfields and bring them back to productive use is obvious and has been recognized for some time at both the state and national levels. However, there exists many impediments to brownfield remediation and redevelopment. Although many sites may be difficult to redevelop due to economic and other factors that are beyond the State’s control, many of these brownfield sites have great economic potential. They remain vacant or underutilized, however, because of the uncertainties involving the high or unknown cost and liability in performing an environmental cleanup. These environmental factors often make the difference between a viable redevelopment project and a vacant site.

    New Jersey began the process of facilitating the remediation and redevelopment of brownfields in 1993 when the Legislature enacted a comprehensive reform of its site remediation laws. Three years experience with that reform measure and the legislative actions and experiences of several other states have demonstrated that more changes are needed in order to facilitate brownfield redevelopment.     There are four general areas that need to be addressed in order to facilitate brownfield remediation and redevelopment. These areas include technical, legal, financial, and institutional policies. This bill addresses each of these areas in a comprehensive manner in order to fully address the problems posed.

Technical Policy Issues

    Elimination of preference for residential soil remediations - Under present law there is a preference for the performance of a soil remediation to residential limits. This preference exists even if the property is to be used for industrial or commercial purposes, although a cost limitation does exist. Additionally, many people have argued that engineering solutions, such as capping, together with institutional controls are as safe as residential remediations. The draft bill eliminates the preference and allows a person to select whatever remedial action that person wants to implement so long as the health standards are met and the remedy will meet all of the Department of Environmental Protection's regulations. In order to ensure that the remedy will work, and continue to work, the DEP is required to inspect at least once every five years each site that uses engineering or institutional controls.

    Regulatory flexibility - The bill contains a provision that states that the DEP's regulations should consist of general guidelines and that a person may deviate from the strict adherence to the regulations if that person can demonstrate that the deviation would be as protective of human health and the environment.

    Permit by rule - The bill provides that the DEP should adopt regulations whereby certain minor site remediations may be performed and approved without the need to get preapproval or send extensive documents to the DEP for review.

    Aquifer delineation - Under existing law and practice of the DEP, aquifers that are contaminated and not used as a drinking water resource can be classified as such and the DEP will allow contamination in the aquifer to be remediated through natural attenuation (e.g. the natural breakdown of contaminants over time). This process would save a person performing the remediation substantial sums of money when compared to a requirement to pump and treat the groundwater. However, it is difficult and costly for a person to prove to the DEP that any particular aquifer meets the criteria for the designation. This is especially so for small businesses and landowners performing relatively minor remediations. The bill requires the DEP to investigate and determine which aquifers meet the standard and to plot those aquifers on the geographic information system. Five million dollars from the site remediation bond act to be on the ballot in November will be used for this purpose. The bill also codifies the natural attenuation policy of the DEP.

    Presumptive remedies - The law presently requires the DEP to list certain remedial actions that the DEP deems to be effective. The bill provides that a person can use any of these remedies without needing further departmental approval of that choice.

    Innovative technologies - The bill contains several provisions designed to encourage the use of innovative technologies, including the elimination of the requirement to post financial assurance, the provision of 25% matching grants, expedited review, and other regulatory changes.

    Historic fill - Although the law already contains a provision providing that the presumptive remedy for historic fill is capping, recent regulatory proposals of the DEP may have the effect of negating the intent of the law. The bill provides that no regulation shall have the effect of shifting the burden the presumption places on the DEP and that there is no date before which fill must have been placed on the land in order to be considered “historic”.

    Reports and regulations - Several reports and regulations required in P.L.1993, c.139, have not yet been issued or adopted. These include the liability report to be issued by the DEP, the risk report to be issued by a special commission, and the remediation standards, technical rules, and large contaminated area regulations to be issued by the DEP. The bill provides new time limits for the issuance of these reports and regulations. If they are not issued by the set date, the relevant General Assembly and Senate committees are instructed to hold a joint public hearing to determine why the report or regulations were not issued.

    Environmental Advisory Task Force - This task force was established by law in 1993 to determine if and how soil site remediation standards should be adopted that are protective of the environment. To date, the members of the task force to be appointed by the Governor have not been selected. The bill would eliminate the Governor's appointments if not selected in a defined period of time and would make it easier for the task force to convene.

    Surface and subsurface soil standards - Under existing regulatory practice no distinction is made between the remediation standards for surface soil and subsurface soil. If a contaminant is in the soil the remediation standard can be based on either its potential impact to groundwater or its health impact if a person is exposed to it. Because many contaminants do not impact groundwater because they do not leach it is questionable if those types of contaminants in the subsurface soil should be remediated based solely upon human exposure criteria. The bill makes a distinction between surface soil (top ten feet) and subsurface soil (below ten feet) so that subsurface soil contamination will only have to be remediated if there is a potential impact to groundwater or surface water.

Legal Liability

    Limited remediation requirements for purchasers - Often the extensive, and unknown, cost of a remediation makes the redevelopment of many properties uneconomic. In order to lower these costs, the bill would limit the extent of a remediation that a person buying contaminated property would have to perform. The purchaser would only be liable to perform surface soil remediations, or use engineering or institutional controls, remove sources of contamination that pose imminent threats, and maintain any controls in place. The purchaser would not be liable for groundwater contamination, for changes in remediation standards, or for undiscovered contamination. Once the purchaser performs this limited remediation to make the property safe for its intended use, the purchaser would have no further remediation liability under the law.

    Purchaser protection from additional liability - Earlier this year, the Legislature enacted certain provisions of law to limit the liability of an innocent person who acquires land which was contaminated but is later remediated. That limit on liability, however, only applied to properties in qualified municipalities. This bill expands these protections to all properties in the State. Additionally, the bill expands and clarifies the liability protections of purchasers so that if a purchaser unknowingly acquires contaminated property after performing a proper investigation or knowingly acquires contaminated property and performs the required remediation, the purchaser would not be liable to the State or to any other person, under the Spill Compensation and Control Act or under common law, for the discharged contamination even if additional contamination is discovered or if the standards change.

    Covenants not to sue - The bill provides that whenever the DEP issues a no further action letter for a remediation it shall also issue a covenant not to sue. The covenant basically spells out the limits on legal liability that exist once a site is remediated. The covenant protects the person performing the remediation from further cleanup liability to the State so long any engineering and institutional controls are maintained. The covenant does not protect the discharger or other liable parties for undiscovered contamination or for changes in the remediation standards by an order of magnitude.

    Letters of no association - A person who can demonstrate to the DEP that he has a defense to liability under the innocent purchaser defenses of the Spill Compensation and Control Act, will be given a letter of no association. The letter will indicate that the person has met the initial burden proving that he is not liable for any contamination on the property. The letter of no association is prima facie evidence that the person is not liable for remediation costs in any contribution action.

    Public entity liability - Although the law generally provides that public entities are not liable for existing contamination on land they acquire through actions such as a tax lien or foreclosure, a public entity may be liable for knowingly and voluntarily acquiring contaminated property, even if for a public purpose such as redevelopment. The bill amends the law to limit public entity liability for contaminated property they acquire by any means.

    Contribution treble damage awards - The bill eliminates the DEP’s role in allocating treble damages in contribution claims. The imposition of treble damages will be left for the court to award.

Financial Issues

    Limitation on fees - The bill provides that cleanup and removal costs under the Spill Compensation and Control Act are not to include administrative indirect and fringe benefit costs. This will have the effect of lowering the fees assessed by the DEP to review a remediation and thus the cost for a person to perform a remediation. Over the past several years the fees for site remediation reviews have increased exponentially as more indirect and unrelated costs are being recouped by the imposition of fees.

    Environmental Opportunity Zone Act expansion - Last session, the Legislature enacted the Environmental Opportunity Zone Act in order to encourage the remediation of contaminated industrial sites by offering limited property tax exemptions. That law only applied to properties that were to be used for industrial or commercial purposes. Because many former contaminated industrial properties are located in areas that no longer make them suitable for industrial or commercial purposes, the bill expands the law so that the properties may also be used for residential or other productive uses.

    Sales tax exemptions - The bill establishes a program whereby a person can recover 75% of remediation costs incurred. The reimbursement would be funded from the dedication of 50% of the sales tax to be collected at any new retail establishments built on the formerly contaminated property. State approval is needed before a property qualifies for this benefit.

    Hazardous Discharge Site Remediation Fund flexibility - Under existing law, the Economic Development Authority has limited discretion to move available moneys in the fund from one dedicated category to another. The bill would give the EDA more authority to shift moneys from any category to any other.

Institutional Issues

    County Improvement Authorities - County Improvement Authorities are given an expanded and defined role to help coordinate, fund, and market the remediation and redevelopment of contaminated sites. The authorities are also made eligible for financial assistance from the Hazardous Discharge Site Remediation Fund.

    Geographic information system - Economic data will be entered into the GIS system in order to facilitate decisions concerning the redevelopment of brownfields. Three million dollars from the site remediation bond act to be voted upon in November is appropriated for this purpose.

    DEP mission - The mission of the DEP as well as its duties under the Spill Compensation and Control Act have been broadened to include coordination and facilitating the remediation and redevelopment of brownfields.

    Community involvement and risk communication - A Brownfields Environmental Risk Communication Council is established as a Statewide entity designed to help local governmental entities and community groups understand the risks and benefits of brownfield remediation and redevelopment.

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