Process
Site Reuse Opportunities and Cleanup Tools
DEP's Site Remediation Program is committed to helping
private parties reuse contaminated sites by ensuring
the required investigation and cleanup work, also
known as remediation, fits within the overall plans
of developers, businesses and local officials. And,
while cleaning up past contamination is a primary
concern for brownfields reuse, other issues - - available
infrastructure, transportation, financing, taxes,
work force, insurance, community needs and market
forces - - also impact opportunities for economic
redevelopment.
With more than 8,000 known contaminated sites in
New Jersey, many of which occupy our cities and have
an industrial or commercial past, the opportunities
for reuse are strong. DEP maintains this inventory
of contaminated sites, both large and small, entitled
"Known Contaminated Sites
in New Jersey." Cleanups are underway at
many of these sites by DEP, responsible parties, and
others such as local government agencies and developers,
each following a number of innovative and dynamic
laws and regulations. Other sites not on DEP's inventory
also may require remediation before reuse.
Voluntary Cleanup Program
Through the Voluntary Cleanup Program,
responsible parties, developers, local officials or
individuals may work with DEP to remediate a contaminated
site. Under this program, a party conducting the cleanup
enters into a nonbinding agreement, a Memorandum of
Agreement (MOA), with DEP to establish the scope and
schedule of remedial activities. These actions range
from a basic preliminary assessment and site investigation
to determine if contamination exists at a site to remedial
actions necessary to clean up the site. The MOA may
be terminated at any time. This program provides much
needed flexibility to private parties to conduct remediations
at their own schedule.
Previously, such work was performed under Administrative
Consent Orders that included timelines and stipulated
penalties if work was not completed as scheduled.
DEP has been using MOAs since 1992, except for immediate
environmental concern cases, to facilitate brownfields
reuse. Some properties subject to the state Industrial Site Recovery Act and Underground Storage Tank or federal Superfund programs can be considered brownfield
sites and reused, but these cleanups are not part
of the Voluntary Cleanup Program.
Remediation Loans and Grants
Municipalities may apply for grants and loans up
to $2 million per year for investigation and cleanup
activities from the Hazardous Discharge Site Remediation
Fund. The New Jersey Economic Development Authority
(EDA) plays a key role in financing these grants and
loans, working with DEP to cover eligible costs and
provide loan servicing. Grants are speicifically provided
to municipalities for a preliminary assessment (PA)
and site investigation (SI) when a municipality holds
the tax sales certificate, has forclosed or volutarily
acquired a property for redevelopment. Municipalities
may obtain money to proceed with the remedial investigation
(RI) if they own the property. If after conducting
the PA/SI/RI a muncipality wants to conduct the cleanup,
low interest loans are available. Using data from
these activities, local officials can develop cost
estimates of any cleanup work required at a site,
thereby improving the property’s marketability.
Private parties required to perform remedial activities
and indivduals who want to conduct such actions voluntarily
may quality for loans of up to $1 million per year
if they are unable to obtain private funding. Since
the creation of the fund in 1993 over $56 million
in funding has been disbursed as grants and loans.
These money come from a $75 million fund created when
the State Legislature supported this effort by dedicating
an unused portion of a state Hazardous Waste Bond
issue and a portion of New Jersey’s Economic Recovery
Fund.
Liability Protection
Local government entities that acquire property through
foreclosure, condemnation or similar means are not liable
under the New Jersey Spill Compensation and Control
Act for past contamination. This recent provision to
the Spill Act encourages local governments to take title
to abandoned, derelict properties and then conduct PAs,
SIs and RIs. With the information obtained from investigatory
work, municipal or county officials are better able
to market a property for reuse. Lending institutions
also have been freed of liability for contamination
when providing financial support to industrial redevelopment
projects.
Also, developers of property in qualified municipalities
will now be offered protection from liability for
third party costs if they did not cause the past contamination
and they have cleaned up the site in accordance with
DEP regulations. This recent action by the Legislature
removed liability from a property owner for claims
related to conditions that occurred prior to a cleanup.
DEP also has requested that the EPA recognize that
a state approved cleanup meets all federal remedial
requirements, thus eliminating the fear of future
liability from EPA.
Finally, an emerging policy issue involves a more
holistic approach to prospective purchaser liability.
Limiting liability of parties not responsible for
past contamination that become involved with brownfield
projects is an important issue. It will alleviate
developers' concerns for liability of unquantifiable
cleanup costs, especially when regional ground water
contamination issues are involved.
Technical Regulations
New Jersey is one of the few states with regulations
defining how to conduct remedial actions. The Technical
Requirements for Site Remediation establish the
minimum criteria for performing PAs, SIs, RIs and RAs
at New Jersey sites. This regulation provides certainty
about what actions a party is expected to conduct in
order to successfully complete the various remedial
steps and, if desired, ultimately receive a "No
Further Action" letter from DEP.
Use-Based Cleanup Criteria
The Ground Water Quality Standard and Surface Water
Quality Standard regulations provide clear standards
to follow that depend on the use of the resource. DEP
also has developed soil cleanup criteria that allow
for various uses, both residential and nonresidential.
These standards and criteria provide parties conducting
remedial activities with known objectives to achieve.
Institutional/Engineering Controls
There are several ways to comply with DEP's cleanup
standards and criteria. And, while permanent remedies
are preferred, it is understood and recognized in New
Jersey statutes that it does not always make sense to
remove all contamination at a site. When a "cleanup"
limits workers' and residents' exposure to contamination
and is protective of human health and the environment,
DEP can and has approved such remedial actions. DEP
requires engineering and/or institutional controls when
approving a remedial action that proposes to leave some
contamination on site. Placement of an institutional
control, known as a Declaration of Environmental Restriction,
also is required. For ground water contamination, DEP
requires a Classification Exception Area when standards
are exceeded.
Historic Fill
Many of New Jersey's urban centers were built decades
ago on land that was created by filling in tidal and
freshwater wetlands. New Jersey statutes recognize this
fact and establish a presumption that encapsulation
is the remedy of choice for sites with historic fill
that is contaminated. This provision ensures protection
of human health and the environment while recognizing
that it does not make sense to require removal of fill
used to create land along our state's waterways.
Finality
When a party completes remedial activities at a site
in accordance with DEP's Technical Regulations or when
further cleanup work is not required, a "No Further
Action" letter is issued. DEP may only compel additional
remediation at a site that has received a "No Further
Action" status if a cleanup standard that was applied
at the site has decreased by more than a factor of 10.
This applies only to those parties found liable for
past contamination. For example, if a compound's cleanup
standard was 1,000 parts per million and it was lowered
to 100 parts per million, DEP may require additional
remedial activities. However, a person who is simply
an owner of a property in a qualified municipality with
a "No Further Action" designation and not
responsible for past discharges at the site would not
be held liable for any additional cleanup work necessitated
by a change in cleanup standards. Where a nonpermanent
cleanup, such as some type of engineering control, has
been approved for a site, DEP may require additional
remedial activities only if the control is no longer
protective of human health and the environment.
Improving the Process
A statute enacted in January 1996 allows municipalities
to create "Environmental Opportunity Zones"
where local property tax incentives will be provided
during a 10-year period to developers of contaminated
properties within the designated areas.
DEP also will be working with the Office of Neighborhood
Empowerment in the state Department of Community Affairs
as directed by a statute enacted in July 1996. The
law established time limits for DEP reviews of technical
reports for brownfield projects to ensure prompt action.
Other actions include an ongoing discussion about
appropriate risk assessment and risk management and
how this affects DEP cleanup standards. Also, an internal
DEP study is nearing completion of how to deal with
large tracts of land historically used for industrial
purposes.
Community Needs
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Overview
- Brownfield Cleanups Succeed
- Process
- Site Reuse
- Community
Needs
- Contacts
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