New Jersey is plagued by more than 12,000
properties that are or may be contaminated
by hazardous substances. These brownfield
sites are unhappy legacies of New Jersey's
industrial history and poor waste management
practices in the past, but many of these sites
can be transformed into centerpieces of economic
and community renewal. These properties must
be remediated and reused to fulfill Governor
James E. McGreevey's goals to control sprawl,
promote redevelopment, and reform dated regulatory
practices. In Executive Order No. 38 (Oct.
22, 2002), Governor McGreevey focused the
Department of Environmental Protection (DEP)
and other agencies on redevelopment of idle
sites in already developed areas. This focus
is central to the Governor's objectives of
promoting smart growth and creating a broader
range of choices and more livable communities
for businesses and families in New Jersey.
While New Jersey's brownfield programs to
date have made progress in accelerating the
cleanup and redevelopment of those brownfield
sites most suited to redevelopment, DEP's
programs require further reform and improvement
to address those sites where the technical,
practical, and environmental challenges are
more complex. Sites have languished, and communities
have been blighted, due to the failure to
work effectively with the business community
and municipalities and to undertake reforms
that will accelerate public health protection
and economic renewal that come with returning
these idle sites to productive use. The assumption
that brownfield sites should be used only
for commercial or residential redevelopment
has limited potential use of these sites for
residential, recreational, open space, and
other uses. In some cases, the absence of
adequate enforcement and safeguards has allowed
responsible site owners to "warehouse"
sites - to defer needed cleanup by choosing
to keep the sites idle rather than having
responsible parties own up to their cleanup
obligations.
This directive identifies and directs, pursuant
to Executive Order No. 38, implementation
of the policy and program changes needed to
reduce regulatory uncertainty, to reconcile
business and regulatory decision time frames,
to expand potential reuses of brownfield sites,
and to ensure that owners responsible for
contamination no longer have the option of
leaving their sites idle rather than meet
their cleanup obligations. Each of these changes
will be undertaken in consultation with DEP's
partners in brownfield redevelopment: the
Office of Smart Growth and other offices of
the Department of Community Affairs; the Economic
Development Administration and other offices
of the Department of Commerce, the State Planning
Commission, the Brownfields Taskforce, municipalities,
and interested constituencies.
Definitions
The term "brownfield" refers to
abandoned, idled, or underutilized industrial
or commercial sites where expansion, redevelopment
or reuse is complicated by actual or perceived
environmental contamination. Brownfield sites
may also include sites that were once heavily
contaminated and where cleanup has been completed
but redevelopment has not been initiated.
The term "smart growth area" means
the State's urban, suburban and rural population
centers, the revitalization of which is essential
to the prevention of sprawl and the degradation
of natural and agricultural resources and
environmental quality. Smart growth areas
shall be identified in coordination with the
Office of Smart Growth in the Department of
Community Affairs, the Economic Development
Administration in the Department of Commerce,
the State Planning Commission, municipalities,
and interested constituencies.
Policy
The Department shall implement the
following measures prospectively to
encourage the remediation and reuse
of brownfield sites, particularly in
smart growth areas:
Reducing Regulatory Uncertainty
- Office of Brownfield
Reuse: The Department shall establish,
within the Site Remediation Program,
an Office of Brownfield Reuse. This
Office shall serve as the focal point
for the Department's brownfield programs,
and shall be charged with informing
the public and those interested in
brownfield reuse about these programs.
Furthermore, this Office shall develop
and implement new policies and programs
to encourage brownfield remediation
and reuse, shall set priorities among
brownfield sites that may be appropriate
for accelerated cleanup and redevelopment
and shall directly oversee the remediation
of high priority brownfield projects
identified by the Department.
- Liability Reform:
The Department shall not assert liability
for damages or compensatory restoration
against non-liable brownfield developers
at sites at which there is historical
natural resource injury. This policy
shall not diminish responsibility
for restoration actions that are inherent
in remedial activity.
- No Further Action Letters:
The Department shall issue No Further
Action Letters for soils when remediation
of soils at a brownfield property
is complete, but groundwater contamination
may remain. The Department shall also
issue No Further Action Letters for
groundwater when a Classification
Exception Area has been established
for a brownfield site and natural
attenuation has been approved as the
appropriate remedial action.
- Letting Developers Get
to Closing: The Department shall
permit non-liable brownfield developers
to perform, as necessary, a well survey,
potable well sampling and analysis,
and a determination of groundwater
flow direction, promptly after purchasing
a brownfield property, rather than
requiring such developers to perform
these activities prior to purchase.
The procedures of current and proposed
technical regulations and manuals
shall conform to this policy.
Aligning Regulatory and Redevelopment
Objectives and Timetables
- Areawide Brownfield
Reuse Program: The Department
shall establish an areawide brownfield
development program that will enable
communities to plan comprehensively
for the remediation and reuse of multiple
brownfield sites. The Department will
assist these communities through coordinated
remediation oversight of the brownfield
properties and assist with coordination
of relevant programs both within the
Department and within other federal
and state agencies. The first sites
selected for this program shall be
in Camden, Elizabeth, and Trenton,
with further sites to be selected
through application to the Department.
This program shall complement other
applicable brownfield programs and
incentives.
- Expanded Use of Market
Tools: The Department shall encourage
the use of financial and market instruments
to help manage and allocate financial
risks associated with the uncertainties
of complex and long-term cleanups
while providing communities with greater
assurance that cleanup requirements
will be met. These may include the
use of sureties, insurance products,
and trust fund mechanisms to: a) manage
or reduce risks of uncertainty concerning
potential costs of future remedial
decisions; b) allow brownfield developers
of single sites in areas affected
by ubiquitous groundwater contamination
to resolve their groundwater liability
through establishment of a groundwater
trust for DEP to use for future and
comprehensive groundwater remediation
efforts; c) ensure the reliability
of institutional and engineering controls
and, where appropriate, to reduce
the burden on the regulated community
of maintaining these controls; and
d) otherwise provide greater certainty
to potential developers and greater
assurance to communities that cleanup
needs will be met.
- "Cleanup Star"
Program: The Department shall
develop a "Cleanup Star "program
to reform the role of environmental
consultants and to accelerate brownfield
site redevelopment. This program shall
include the following elements:
- Following reasonable
public notice of selection criteria
and expected qualifications, DEP
will establish a list of pre-qualified
consultant professionals sufficiently
qualified to oversee remedial work
with minimal oversight.
- For developers and responsible
parties willing to select and fund
the use of consultant professionals
from the pre-qualified list and
provide by contract with the consultant
that the consultant will act at
the direction of DEP, DEP will make
use of the consultant to expedite
remedial analysis, evaluation, and
decisions.
- DEP will make this option
available initially at sites presenting
relatively low or moderate risk
and less complex cleanup challenges.
- DEP shall develop appropriate
auditing requirements and other
safeguards to ensure that public
health and environmental standards
are rigorously enforced, and that
pre-qualified professionals who
perform inadequate work are removed
from the list promptly.
- DEP shall convene an
advisory group of interested constituencies
and appropriate representatives
of interested labor organizations
to oversee and guide implementation
of this initiative.
- The DEP labor-management
committee shall audit the program
annually to ensure that it is not
used to reduce or divert the internal
staffing and resources devoted to
site remediation.
- Technical Review Panel:
The Department shall establish a technical
review panel, comprised of senior
DEP technical staff, to expedite final
cleanup decisions where remedial action
has been delayed or potentially may
be delayed by disagreements between
brownfield developers (or other responsible
parties) and DEP case managers on
the best approach to meeting standards
and technical requirements to protect
public health and the environment.
Expanding Potential Reuses of
Brownfield Sites
- Brownfields to Greenfields:
The DEP Office of Brownfield Reuse
shall coordinate with the Green Acres
Program, the Division of Fish and
Wildlife, municipal officials, and
community and environmental leaders
to identify opportunities to pilot
new potential reuses of brownfield
sites. This effort shall focus particularly
on identifying brownfield sites that
may be used for residential development
projects, for local and regional parks,
for recreation areas, for off-road
vehicle use areas, and for natural
resource restoration. Where bona fide
conservation groups have an interest
in stewardship at sites being restored
for these purposes, DEP shall develop
appropriate prospective purchaser
agreements to address potential liability
arising from ownership. The Office
of Brownfield Reuse shall identify
at least two "brownfield to greenfield"
pilots over the next twelve (12) months.
Promoting Cleanup and Re-use
of "Warehoused" Sites
- Zero Tolerance for
"Warehousing": Where
industrial owners of contaminated
brownfield sites have chosen to "warehouse"
the properties by leaving them abandoned
and avoiding or delaying remediation,
the Department shall assist impacted
communities to ensure that a beneficial
reuse occurs. Where appropriate, the
Department shall utilize its enforcement
authorities to require remediation.
Where a municipality determines to
acquire a warehoused property through
condemnation, the Department shall,
in appropriate circumstances, partner
with the municipality a) by allowing
the municipality to assume a lead
role in implementing remedial action,
b) by providing appropriate assurances
concerning the scope of liability,
and c) by ensuring that responsible
parties pay for the cost of remediation.
The Assistant Commissioner for site
remediation shall report to the Commissioner
on progress and achievements in implementing
this directive on or before January
1, 2004.
This directive is a statement of policy
intended for the fair and efficient
administration of the Department of
Environmental Protection and shall not
be construed to create any legal or
equitable rights or to provide the basis
for any judicial or administrative remedy.
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Date:
November 25, 2002 |
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Bradley
M. Campbell
Commissioner
Department of Environmental Protection |
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