SRP Publications Annual Reports 1998

II. Regulatory Update

In 1998, the Site Remediation Program continued its efforts to ensure that its rules provide the most efficient and cost-effective process for remediating contaminated sites.

On January 6, 1998, Governor Whitman signed into law legislative amendments to the renamed Brownfield and Contaminated Site Remediation Act (formerly the Hazardous Site Discharge Remediation Act), N.J.S.A. 58:10B-1 et seq., the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, and the Industrial Site Recovery Act, N.J.S.A. 13:1K-6. The legislative amendments provide incentives to facilitate the acquisition and remediation of contaminated sites in New Jersey, especially those areas formerly used for commercial and industrial purposes known as brownfield sites. In response to the legislative amendments, the Site Remediation Program reviewed its existing rules concerning the remediation of those contaminated sites to determine the regulatory amendments necessary to implement the new requirements of the statute. On July 6, 1998, the Site Remediation Program proposed amendments to four of its rules to ensure consistency with the legislative amendments and facilitate remedial activities at brownfield sites throughout New Jersey. The four rules included in the proposal are: the Industrial Site Recovery Act rule (ISRA rule), N.J.A.C. 7:26B; the Department Oversight of the Remediation of Contaminated Sites rule (oversight rule), N.J.A.C. 7:26C; the Technical Requirements for Site Remediation rule (technical rule), N.J.A.C. 7:26E; and, the Underground Storage Tanks rule (UST rule), N.J.A.C. 7:14B. The Department will adopt the amendments to these rules in June 1999.

On December 7, 1998, the Site Remediation Program proposed to readopt with amendments the Processing of Damage Claims Pursuant to the Sanitary Landfill Closure and Contingency Fund Act rule (SLF rule), N.J.A.C. 7:1I, and proposed amendments to the Processing of Damage Claims Pursuant to the Spill Compensation and Control Act rule (Spill Fund rule), N.J.A.C. 7:1J.

The SLF rule sunsets on February 22, 1999. This rule provides the requirements for processing claims made to the Sanitary Landfill Facility Closure and Contingency Fund (SLF Fund). The SLF Fund was established in 1981. The purpose of the SLF Fund is to provide compensation for damages proximately resulting from the improper operation or improper closure of sanitary landfill facilities. Historically, the SLF Fund has paid compensation predominately to individual homeowners for property value diminution after the homeowners have exhausted all other reasonably available sources for compensation. The amendments proposed to the SLF rule reflect the Site Remediation Program's experience in implementing the existing rule for processing damage claims against the SLF Fund. The proposed readoption and amendments will ensure that pending claims and newly filed claims are addressed in a prompt manner, with uninterrupted service to the businesses and residents affected by damages sustained as the proximate result of the improper operation or closure of sanitary landfill facilities.

The Department also is adopting amendments to the SLF rule and the Spill Fund rule (which provides the requirements for processing claims made to the Spill Compensation and Control Act Fund) based on amendments to the Spill

Compensation and Control Act, N.J.S.A. 58:10B-23.11a et seq., and the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B et seq. As stated above, these legislative amendments are designed to promote the redevelopment of New Jersey's brownfield sites. The adopted amendments to the SLF rule and the Spill Fund rule provide that certain parties may be barred from making a claim against the SLF Fund and/or the Spill Fund depending on whether the claimant is the beneficiary of a covenant not to sue issued by the Department and the type of remedial action implemented at the subject property. For example, the Spill Fund rule at N.J.A.C. 7:1J-2.7(c)1 provides that a person is not eligible for compensation from the Spill Fund for damages resulting from a site if that person benefits from a covenant not to sue issued with a No Further Action letter for the site. Furthermore, a person is not eligible for compensation from the Spill Fund for damages if they purchased a site after the Department issued a No Further Action letter in connection with a remedial action implemented at the site that involves the use of engineering controls. The Department adopted these rules on February 22, 1999.

In summer 1999, the Department is planning to propose a new Financial Responsibility rule, N.J.A.C. 7:14B-15 and 16. The proposed rule will establish the requirements for owners and operators of state regulated underground storage tanks to maintain evidence of financial responsibility for necessary remedial actions in the event of a discharges from an underground storage tank, as well as for compensating third parties for damage caused by the discharge. The rule will require owners and operators of underground storage tanks who do not establish and maintain financial responsibility to pay an annual surcharge to the Petroleum Underground Storage Tank Remediation, Upgrade and Closure Fund. The purpose of this fund is to make low interest loans and grants to eligible owners and operators of regulated petroleum underground storage tanks for the purpose of financing costs associated with the upgrade and closure of underground storage tanks as well as the remediation of discharges from those tanks. The fund also will provide loans and grants to eligible homeowners for remedial activities necessary due to a discharge from their home heating oil underground storage tanks.

In 1999, the Site Remediation Program is also planning to propose a readoption with amendments to the Remedial Priority System rule (RPS rule), N.J.A.C. 7:26F. The RPS rule, promulgated in 1996, establishes a system to evaluate the relative risks associated with known contaminated sites in New Jersey. The system characterizes those risks as numerical scores that can be organized in ranked order. By defining the relative risk posed by these sites, the Department shall be better able to determine its priorities for remediation using public funds.

Based on the program's experience in implementing the existing RPS rule, the Department is proposing technical changes to the scoring system. The emphasis of the amendments is to provide a better mechanism to evaluate the limited analytical data available on some of the sites awaiting ranking.

Finally, the Site Remediation Program has initiated a rulemaking effort to promulgate soil remediation standards that will be proposed at N.J.A.C. 7:26D.

The Site Remediation Program has the lead in this rulemaking effort, but is working closely with other Department programs in the development of the rule. The rule will include human heath-based soil remediation standards that will be used to identify and remediate contaminated sites in New Jersey. The rule will provide soil standards that are appropriate for residential and non-residential use, as well as procedures for the development of site specific standards. The Site Remediation Program is planning to solicit public input concerning this rulemaking through an interested party review in late 1999. A previous rulemaking effort in this area in 1992 led to the use of published soil cleanup criteria, but this guidance was never formally adopted as a regulation.

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