New Jersey Q&A

1. How is New Jersey's VCP organized?

Answer: "New Jersey's Voluntary Cleanup Program (VCP) is currently located within the Department's Site Remediation Program, Division of Responsible Party Site Remediation....  [T]here are three Bureau Chiefs that are responsible for managing staff that oversee the implementation of the Voluntary Cleanup Program.  These bureaus are the Bureau of Case Management, the Bureau of Field Operations North and the Bureau of Field Operations South.  There are two Assistant Directors that manage those three Bureaus, one Director and one Assistant Commissioner.

"With respect to giving visibility to the State's VCP and Brownfield Program, New Jersey participates in the Association of States and Territorial Solid Waste Management Officials (ASTSWMO) and provides significant input into how its VCP is organized and managed in order to share ideas with other states.  This includes the promulgation of technical guidance and implementation of engineering and institutional controls to facilitate an affordable, yet protective remedy for sites where environmental exposures will likely be minimal.  There also exists the recently established Smart Growth Council that is responsible in part for coordinating and consolidating redevelopment initiatives, including those involving brownfields."

On the brownfields side, the Brownfields Coordinator reports directly to the Assistant Commissioner.  On the VCP side, there is a more diffuse chain of command to the Assistant Commissioner for Site Remediation.  A reorganization is currently under way and should be announced shortly.

2. How is a liability release obtained for voluntary cleanups in New Jersey?

Answer: "The MOA [Memorandum of Agreement] is, in fact, the mechanism used within the VCP that allows the Department to dedicate its resources to overseeing cleanups at sites where public funds are not being used or, where the cleanup is not being required at the time by a regulatory program such as the  Industrial Site Recovery Act [ISRA] or the Underground Storage of Hazardous Substances Act.  Upon receipt of an application for a MOA, the Department then determines whether a MOA is available to the requesting party based upon such issues as whether state dollars have already been dedicated for the cleanup, or whether the cleanup is already subject to a specific regulatory program.  It is important to note that the full scope of the required remediation is not set by an MOA, but, rather, is determined by the requirements set forth in the Technical Regulations for Site Remediation, See N.J.A.C. 7:26E.  The schedule within a MOA is typically established by the party performing the remediation.  Often, parties entering into the VCP are addressing sites planned for redevelopment.  That can result not only in cleanups, but also in profitable and productive end uses for formerly contaminated sites.

"A Covenant Not to Sue is required under the Brownfields Act to be issued in conjunction with every No Further Action letter.  When a party performs a cleanup under the VCP, and some under other DEP programs, the Department issues a No Further Action Letter and Covenant Not to Sue.  The remedy for a site is proposed by the MOA applicant, and the Department then evaluates that remedy to determine whether it can be protective of human health and the environment.  However, some persons elect to conduct an 'at risk' soil only cleanup without DEP input and submit [their] findings to the Department thereafter for approval and issuance of a No Further Action Letter and Covenant Not to Sue.  DEP's statutory Covenant Not to Sue can protect any person that is not responsible for the contamination, as well as subsequent innocent landowners, tenants and operators.  The No Further Action Letter and Covenant Not to Sue may be issued with conditions, such as the requirement to maintain a cap as part of the remedy, or some other site maintenance requirement.  As long as the conditions and instructions in the No Further Action Letter and Covenant Not to Sue are adhered to, these non-responsible parties can maintain the protections afforded by the Covenant Not to Sue.  However, if conditions in the No Further Action Letter are not complied with, the Department can rescind the No Further Action Letter, thereby jeopardizing certain persons' protections under the Covenant Not to Sue."

By statute, upon completion of a cleanup, the Department issues a No Further Action letter and Covenant Not to Sue.  However, if you are a responsible party, "you don't get the benefit of the CNTS."  The CNTS is "not valid" with respect to an RP.

3. What is New Jersey's approach to liability reopeners?

Answer: New Jersey has several provisions for "re-opening" cleanup requirements.  For example, if subsequent to the Department issuing a No Further Action Letter, there are areas of concern (contaminated areas) that existed but were not discovered during the initial cleanup, remediation of that area would likely be required of responsible parties.   A second scenario for "re-opening" after a No Further Action Letter has been issued would be if a remediation standard has changed by an order of magnitude.  Again, the Department would require parties responsible for the contamination to address additional remedial requirements.  Another opportunity for revisiting a cleanup decision would be if the Department's decision to issue the No Further Action [Letter] and Covenant Not to Sue turned out to have been based upon fraudulent or incomplete information regarding the site.  Also..., if the remedy implemented is no longer effective, taking into account the use of the site, in protecting human health and the environment, the Department could require [that]  addition[al] remediation be conducted."

One of the grounds for rescinding /re-opening the NFA would be fraud.

One of the innovative features of the New Jersey program, and one of the reasons for its success, is that non-responsible parties are not held accountable for newly discovered contamination--present, but undetected, at the time the NFA/CNTS was issued.  If further assessment or remediation is needed, it will either be pursued by NJDEP itself, or DEP will require the responsible party (or parties) to pursue it.

4. How have New Jersey's Brownfield financial incentive programs been working?

Answer: "New Jersey has several Brownfield financial incentives within the 1998 Brownfield and Contaminated Site Remediation Act, and other legislation.  The first is the Hazardous Discharge Site Remediation Fund that was created in 1993.  The HDSRF provides grants to municipalities that want to assess the sites within their community that are planned for redevelopment.  This has been an overwhelming success in providing municipalities with funds to assess risks at their sites in order to make them attractive to a developer who can arrange to address those risks.  This program was created in 1993, and since that time has provided over $40 million to approximately 125 communities in New Jersey.  This has resulted in redevelopment projects such as schools, housing, open space, and public use and commercial/retail businesses.  Municipalities now have the opportunity to assess sites that [lie] abandoned or underutilized within their community.  The Fund has also enabled communities to evaluate these sites with profitable end uses in mind, since these monies are only available for sites where the municipality has a vision for redevelopment.

"The second financial incentive program, created under the 1998 Brownfield legislation, is the Brownfield Reimbursement Fund.  This fund can provide reimbursement to non-responsible parties up to 75% of their remediation costs, based on newly generated taxes from a redevelopment project.  There have been approximately 20 sites that have [been] accepted into this program.  The program has been a successful program in which over $2.3 million has been reimbursed to developers.  It has aided in the redevelopment of brownfield sites into supermarkets, retail stores and other commercial properties.  The significance of this program is that it is funded by new taxes that the State might not otherwise have had if the reimbursement incentive had not been available.  Many of the sites accepted into this program had been abandoned for many years.

"A third financial incentive program is the Brownfield Redevelopment Initiative that provides grants to municipalities for remediation.  A relatively small appropriation of $15 million was made to fund this program.  Those funds have been put to their best use.  Most of that funding was approved for use on 23 separate projects that leveraged $431 million worth of collateral.  Many of the redevelopment projects in this program were residential projects.  This program is somewhat flexible with respect to the types of costs it can fund, as compared to some of the other funding programs.  However, this grant program will only fund sites that will definitely be constructed, and that have a well-defined end use.

"New Jersey's Brownfield statute also allows municipalities to create 'environmental opportunity zones' to allow for tax abatements up to 15 years.  This tax incentive can make the redevelopment of a project more attractive and more feasible for a developer.  There are many communities within the State that are offering tax abatements as a way to encourage abandoned sites to be placed into more productive use.  A new redevelopment project can create jobs and can ultimately generate new taxes at full rate.  Many of these projects may never have happened without tax abatements."

The HDRF has been the most effective of these programs.

5. What soil remediation standards and cancer risk levels apply to New Jersey brownfield sites?

Answer: "Pursuant to the Brownfield and Contaminated Site Remediation Act, N.J.A.C. 58:10B-1 et seq., soil remediation standards must be established at a 10^-6 risk level for carcinogens and at a hazard quotient of 1 for non-carcinogens.  These risk levels concern all soil contamination, regardless of whether the subject site is a 'brownfield site'.  There are no special soil remediation standards for brownfield sites."

A cleanup is a cleanup.  (But soil cleanup criteria, and certain other cleanup standards, recognize the different risks associated with different end-uses.)

Where groundwater is involved, the contamination source must be removed.  Containment is not an option in this situation.

6. Is there anything special about New Jersey's cleanup guidelines?

Answer: "There is only one set of cleanup guidelines, specifically the Technical Requirements for Site Remediation, N.J.A.C. 7:26E, and sites undergoing remediation must comply with these requirements.  There are no separate rules or regulations for brownfield sites.  We have had these regulations in place since 1993, and we continue to improve the process over time with input from the regulated community.  We have addressed many cleanup issues in these Rules, such as historic fill, institutional and engineering controls and sampling methods that interested parties have raised to DEP as issues."

The Technical Requirements are a detailed "cookbook" on how to do a cleanup.  They are among the most detailed of any in the U.S.

7. What is the role of consultants in New Jersey's remediation programs?

Answer: "New Jersey does not have a licensed site professional program similar to Massachusetts nor does it require all remedial plans and reports to be signed by state licensed engineers [like New York].  However, all persons who provide services on underground storage tank systems (USTs) which are regulated pursuant to P.L. 1986 c.102 must be certified by the Department of Environmental Protection in a particular classification or classifications to perform the services while under the immediate on-site supervision of a person certified in that classification.  Certified individuals may only perform these activities while working for a firm certified in the same classification(s).  The classifications of certification are Installation (Entire System or Release Detection Monitoring Systems), Closure, Tank Testing, Corrosion Protection System Analysis (Cathodic Protection Tester or Cathodic Protection Specialist) and Subsurface Evaluation.  More details about the certification program can be found within Subchapter 13 of the NJDEP regulations concerning Underground Storage Tanks (N.J.A.C. 7:14B).

"As stated above, persons responsible for conducting remediation at a contaminated site (including consultants) must perform the remediation in accordance with the Department's Technical Requirements for Site Remediation.  There are some activities specified in these regulations which require certification by a NJ licensed engineer.

"Pursuant to the Industrial Site Recovery Act, N.J.A.C 13:1K-6 et seq. ('ISRA'), preliminary assessments, site investigations, and remedial investigations can be conducted, with Department oversight (through a cleanup agreement pursuant to the Procedures for Department Oversight of the Remediation of Contaminated Sites, N.J.A.C. 7:26C ('Oversight Rules')) or that work may be done in some cases 'at peril' (without Department oversight).  All remediation, however, as stated above, must be conducted in accordance with the Technical Regulations.

"Unrestricted use remedial actions and Limited restricted use soil remedial actions can be conducted where appropriate without Department oversight provided the duration of the remedial action does not exceed five years, and provide the Technical Regulations are followed.  However, restricted use soil remedial actions, unrestricted and limited restricted soil remedial actions that exceed five years, and remedial actions involving ground water or surface water require Department pre-approval and oversight.

"The only somewhat 'presumptive remedy' currently codified in New Jersey regulations is the capping of contaminated historic  fill.  But, as this is a restricted use remedial action, it requires Department pre-approval and oversight.  It should be noted that while the remedy can be viewed as 'presumptive', the Department must review the claim that 'historic fill' is, in fact, there."

8. Does New Jersey maintain an inventory of brownfield sites?

Answer: "The Department maintains a list of all known contaminated sites.  Within that list, DEP has identified what it believes to be brownfields based on the definition in existence prior to the Federal Brownfield law.  This inventory was required by the New Jersey Brownfield Law in addition to a directive from former Governor Christine Whitman.  When the list of known contaminated sites was first published there was concern from the regulated community, but the list has been in place since the mid-1990's and it doesn't include the owner's name on residential properties.  This has alleviated some of the earlier concerns."

The State also maintains a "marketing database" of brownfield sites.

9. What changes, if any, would New Jersey like to see in its current brownfields program?

Answer: "The New Jersey DEP would like to see additional funding established to continue with its successful incentive programs.  Funding initiatives have been the driving force in acquisition, remediation and ultimate redevelopment of many sites.  DEP Commissioner, Bradley M. Campbell supports the programs involving Brownfield[s] and Smart Growth.  He plans to introduce [a] new Brownfield initiative shortly to improve many of the programs and policies currently in place.  DEP is committed to removing the barriers related to the environmental process that impede Brownfield redevelopment."

10. Do you foresee any problems in New Jersey as a result of the new federal Brownfields Revitalization Act?

Answer: "New Jersey believes that our current program will be complemented by additional funding and protections and, possibly by the effects of the new Federal Brownfields legislation.  In addition, the legal liability protections ... the Federal government may provide should support those already in place in New Jersey."

DEP doesn't expect problems in implementing the new federal law.  [Editor's note: the federal program is being administered by Christine Todd Whitman, New Jersey's former Governor.]