NJDEP recently adopted amendments to its rules regarding underground storage tanks, the Industrial Site Recovery Act, oversight of site remediation, and the Tech. Regs. Many of these amendments were adopted in order to effect the legislative policies contained in the Brownfield and Contaminated Site Remediation Act, P.L. 1997, c.278 ("Brownfield Act") to encourage the redevelopment of contaminated sites around the state. NJDEP also adopted several amendments related to NRD. (See related article on the status of NJDEP's new program in this Update.)
The amendments adopted by NJDEP will, among other things,
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set forth the circumstances under which NJDEP will issue covenants not to sue upon completion of the remediation of a site or an area of concern. The Brownfield Act requires that covenants not to sue be consistent with No Further Action letters issued by the agency.
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amend the formula used to calculate NJDEP oversight costs to provide that indirect agency costs will not be collected on any invoices issued for oversight performed after January 8, 1998. NJDEP will continue to collect indirect costs when the agency recovers funds expended for publicly-funded cleanups.
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provide a process by which a landlord or tenant may petition NJDEP to resolve landlord/tenant disputes over responsibility for ISRA compliance.
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encourage the use of innovative remedial action technologies by providing to certain qualified persons monetary grants and exceptions from financial assurance requirements.
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provide an exemption from reporting and baseline ecological evaluation requirements under the Tech. Regs. at sites where the only area of concern consists of a fuel tank for use by a one- to four-family residential building.
In addition, over strenuous objection, NJDEP incorporated several amendments to the Tech. Regs. that relate to its new NRD program. The agency proposed a new definition of "environmentally sensitive areas," now called "environmentally sensitive natural resources," to include groundwater among those natural resources to be assessed and restored under the NRD and site remediation programs. NJDEP also amended the remedial investigation and remedial action requirements in several respects, including the new information that must be submitted in lieu of an ecological risk assessment for groundwater, and examples of natural resource injuries that should be considered and mitigated to the extent possible during remedy selection. Finally, NJDEP rescinded its proposal to require responsible parties to use federal NRD assessment guidance to develop ecological risk assessments under NJDEP's Site Remediation Program. NJDEP's actions on these NRD provisions clearly signal its continuing expectation that, once the new NRD program is implemented, responsible parties will have to identify natural resource injury, the first step required to address NRD under NJDEP's program, as part of the baseline ecological evaluation and ecological risk assessment procedures provided for by the Tech. Regs. See 31 N.J.R. 2167 (Aug. 2, 1999) (codified at N.J.A.C. 7:14B, 7:26B, 7:26C, and 7:26E).
