LSRP/Site Remediation Bill Moves Forward
Thursday, February 26, 2009

MEMORANDUM

TO: Members of the Senate Environment Committee and

Assembly Environment and Solid Waste Committee

FROM: Christina M. Genovese, Manager, Government Relations

RE: S-1897 (Smith) / A-2962 (McKeon)

Site Remediation Reform and Licensed Site Professional Bill

DATE: February 26, 2009

The Chamber of Commerce Southern New Jersey would like to express our support for the Site Remediation Reform and Licensed Site Professional Bill, S-1897 (Smith) / A-2962 (McKeon). The Chamber’s members include companies that own and/or operate facilities at properties undergoing cleanups, businesses seeking to purchase or sell Brownfield properties and consultants and contractors hired to perform the work necessary to complete cleanup activities and prepare the required reports documenting their efforts.

The Chamber believes that the current Site Remediation Program is broken and needs to be fixed. We applaud the New Jersey Department of Environmental Protection (NJDEP) for setting up a Stakeholder process to study the reasons why and to develop suggested reforms. We also appreciate Senator Smith and Assemblyman McKeon taking the initiative to propose much needed reform legislation.

The Chamber has reviewed the most recent version of the bill and is supportive of many of the changes that have been made. However, we would like to respectfully offer the following suggestions on how this legislation can be improved further:

· Section 19 - Under the new permitting program for engineering and institutional controls, there is a new financial assurance requirement. The Chamber would like to suggest language be added to create a self guarantee option as well.

· Section 21 - There is no process for the LSRP to find out if NJDEP has decided to review the report and no time limit to NJDEP's review. The bill allows the LSRP to continue work while NJDEP "reviews" a submission, but why would an LSRP do so if they know NJDEP is reviewing it and may require a change? If they stop work to await NJDEP review, they may run afoul of the "mandatory timeframes.” This section needs some further clarity.

· In section 21, subsection c., NJDEP has the ability to "review” any case with groundwater contamination (under c (4)) and virtually any other case (under subsection c(10) or (11). The Chamber feels this is inconsistent with the purpose of LSRP review.

· Section 25 - Response Action Outcomes (RAOs) may be audited by NJDEP up to 3 years after they are issued and under certain circumstances after that period. This creates uncertainty surrounding the issuance of an RAO for up to 3 years and in some cases longer. The Chamber believes this period should be shortened. Also, for those circumstances that could trigger an audit after the 3 year period, there should be a limited time frame after the triggering event within which the audit must be done.

· Section 27 - The circumstances under which NJDEP "shall" undertake direct oversight still a concern. For example, a single failure to meet a mandatory timeframe triggers mandatory NJDEP direct oversight. Also, the subsection that triggers direct oversight upon failure to complete an entire site remediation within 10 years after discovery of contamination and 5 years after the date of enactment is also troublesome. This subsection does not provide an exception for delays caused by NJDEP review, which can be considerable.

· The Chamber also believes that section 27 is confusing and deserves another look. Does section 27 mean that regardless of how long a remediation has been in progress before the date of enactment, there will be an additional five years to complete the remediation after enactment? What if the bill is enacted tomorrow and then a discharge is discovered? Is it then ten years from discovery or five years from enactment? We respectfully ask that the sponsors revisit the language used in this section.

· Section 27 also continues to require a feasibility study, allows NJDEP to select the remedy, and requires the establishment of a remediation trust fund for any site subject to direct oversight. The Chamber believes these are still troublesome provisions in the legislation. While there may be justification for letting NJDEP select the remedy in some circumstances under direct oversight, the Chamber feels this should not be in every case. Also, if there is going to be a remediation funding source required it should not be limited to the trust fund mechanism. Other options, including self guarantee, should be allowed, and the cost should be limited to the cost of the remedial action alone, not the "remediation,” which includes investigatory costs.

· Section 28 - The bill would require NJDEP to set mandatory time frames for each phase of a remediation. It is unclear why this requirement is necessary. NJDEP already specifies how long a party has to complete its work in responding to NJDEP comment letters and NJDEP already requires the inclusion of schedules in all submittals. If this is requirement is kept in the bill, a requirement for NJDEP to respond to submittals in a mandatory time frame should also be included. In addition, the condition that requires that a party seeking an extension on account of a property access delay must have filed a court action for access before the extension will be granted should be eliminated – why should a party that has a reasonable prospect of entering into an access agreement with a neighbor be forced to go to court?

· Section 41 - This section has been revised to eliminate the proposed expanded coverage of remediation funding sources, which the Chamber supports. However, the Chamber would like to the remediation funding source requirement be broadened to include small businesses remediating their own business property.

· Section 45 - The Chamber appreciates that the changes to this section, which deal with presumptive and alternative remedies, are now more flexible and workable. However, would ask the sponsors to consider allowing a LSRP to select and "approve" an alternative remedy without the need for separate NJDEP approval.

• Section 48 - The bill once again changes the statute of limitations for filing natural resource damages claims. There is no justification for doing this again and it should not be included in a bill primarily directed at establishing an LSP program.

The Chamber appreciates the opportunity to comment on S-1897 (Smith) / A-2962 (McKeon).