TO:                 Members of the Senate Environment & Energy Committee

FROM:             Christina M. Renna, Senior Vice President, CCSNJ

RE:                S-3682 (Smith/Bateman)

DATE:             June 17, 2019

The Chamber of Commerce, Southern New Jersey (CCSNJ) has actively followed the stakeholder process for amending the Site Remediation Reform Act (SRRA) and has participated in a number of the stakeholder meetings.  We submitted comments to you by letter dated January 8, 2018 and have continued to track the progress of the amendment effort since that time.  Unfortunately, we were unable to attend the Senate Environment and Energy Committee hearing for S-3682 (Smith/Bateman) on June 6, 2019, however, now that the legislation has been introduced and is under consideration by the Senate Environment and Energy Committee, and the Assembly Environment and Solid Waste Committee, we would like to take this opportunity to provide a few comments on the proposed legislation in its present form.

First, we wish to express our appreciation for your tireless efforts to improve an already excellent program – the SRRA – which has had a tremendously positive influence on site remediation in New Jersey and has successfully fostered brownfields redevelopment throughout the State.  We add our voice to the chorus of supporters of the original legislation and support amendments to the SRRA that will further the objectives of effective and efficient site remediation, and brownfields redevelopment.

As a general proposition, the CCSNJ is supportive of the current amendments with a few minor clarifications that we have suggested below.  We also continue to support many of the ideas advanced during the stakeholder process that did not find their way into this iteration of the legislation. 

Revisions to Clarify the Amendments

1. Amendment to N.J.S.A. 58:10B-24.3(c) dealing with responding to public inquiries.  CCSNJ supports the objectives behind the addition of subsection c, however, we believe that there needs to be some protection against unduly burdensome inquiries.  Therefore, we suggest that language be added to clarify that responses are required to public inquiries provided that the request for information does not impose an undue burden on the responder.

2. Amendments to N.J.S.A. 58:10C-14 adding provisions to subsection c. dealing with the “remediation requirements” to be followed by an LSRP in providing its services.

• First, the bill would add the regulations of the LSRP Board to the list of “remediation requirements” that an LSRP must follow.  The regulations of the Board are not remediation requirements and should not be included in this section.  LSRPs are already required to comply with the Board’s regulations as part of their code of conduct.  By referring to these regulations as remediation requirements, this unnecessarily confuses what is and what is not a remediation requirement.         

• Second, the new catch-all addition – “any other applicable rules and regulations concerning the remediation” - opens LSRPs to an undefined set of requirements and will give rise to ongoing disputes as to what is and is not “applicable.”  The existing list of requirements has more than adequately covered the field for the first ten years of the SRRA and should be left as is.

3. Amendment to N.J.S.A. 58:10C-19, new subsection d., concerning the requirement that a person issued a remedial action permit must retain an LSRP.  In situations where there are co-permittees (e.g., where the person who is responsible for conducting the remediation sells the property to a new owner and both the original owner and the new owner are co-permittees), both co-permittees should not be required to retain LSRPs.  Only the co-permittee who is designated as the party with primary responsibility for permit compliance under the permit should be required to retain an LSRP. There is no reason for the other co-permittee to bear the expense and responsibility for retaining an LSRP and this should be clarified in the revision.

4. Amendments to N.J.S.A. 58:10C-27 dealing with direct oversight.  CCSNJ supports adding provisions designed to mitigate any unfairness from the imposition of direct oversight.

• To this end, we support providing carve-outs from direct oversight in the situations described in the bill under new subsections a.(3)(1) and a.(3)(2), and the relaxation of direct oversight requirements in the situations described under subsections g.(1)(a), g.(1) (b) and g.(2).  We suggest that the word “also” be inserted in g.(2) (“the department may also modify”) to avoid an interpretation that g.(2) is not a stand-alone provision, but only applies to the situations described in g.(1).  We understand that the intent is for subsection g.(2) to be a separate basis for the department to relax the direct oversight provisions, but this could be clarified by the suggested revision.
• We also support providing relaxation of direct oversight to new owners who were not responsible for the discharge or the delay in the first place as recognized in g.(3), but feel that this relief should not be limited to new owners that enter into an ACO prior to acquisition.  There are owners who acquired property over the last several years who are similarly situated (not responsible for the delay) and are equally deserving of relief from direct oversight.   We suggest that g.(3) apply to any owner who acquired a site subject to direct oversight within the last five years.  Many of these owners were unaware that NJDEP would apply direct oversight to the site (as provided for in new subsection f., a practice that has been in place for the last several years, but only now will have statutory authority with these amendments) when they acquired their properties.  These recent owners should also have an opportunity to enter into an ACO with NJDEP.  This will also facilitate redevelopment of these sites.  We also suggest that anyone falling under the newly proposed subsection g.(3) with the revision we propose, be allowed to use a self-guarantee in addition to the other RFS mechanisms that the amendments would authorize.
• Finally, we believe that when a party corrects the deficiency for which the site was put into direct oversight (e.g., completes an RI that was late), the site should be taken out of direct oversight, provided that the responsible party agrees to a schedule to complete the remediation that is reasonably satisfactory to NJDEP.  

5. There is no mechanism provided for integrating the amendments into ongoing cases.  For example, how will the new requirements to provide municipal notifications prior to the initiation of the remedial investigation phase apply to matters that are in the midst of the remedial investigation?  For sites that are already in the remedial action phase, will the responsible party be required to file a new notice indicating that additional documents will be provided upon request? Will the new RFS self-guarantee requirements pertaining to cash-flow be applied immediately to ongoing matters?  Will LSRPs be given time to evaluate their sites to determine if the revised reporting obligations require new notifications to NJDEP? These are only a few examples of the complications that could arise without some discussion of how best to phase in the amendments.

Additional Stakeholder Ideas

As noted above, the CCSNJ continues to support additional proposals for improving SRRA that would streamline remediation and facilitate the return of brownfields properties to productive use in New Jersey.  These ideas were listed in our January 8, 2018 letter and include the following:

1. Reform of the remedial action permit process to expedite the issuance of remedial action permits.
2. Relief from certain remediation requirements for volunteers and bona fide prospective purchasers to facilitate brownfield redevelopment without sacrificing environmental protection goals.
3. Adoption of strict, but flexible risk-based remediation.
4. Establishing a category of non-discharge conditions (e.g., for historic pesticides and historic fill) with greater flexibility to facilitate remediation of these conditions.
5. Adopting more flexible approaches to financial assurance (such as those proposed by the Chemistry Council of New Jersey).
6. Extension of the statutory deadlines for a class of super-complex cases as proposed by the Chemistry Council.

In conclusion, we thank you once again for your commitment to making New Jersey’s site remediation program the best program in the country for returning historically contaminated sites to productive use while ensuring the protection of human health and the environment.