 |
 Industrial
Site Recovery Act (ISRA)
NJ Senate Bill S1070
SENATE COMMITTEE SUBSTITUTE
FOR
SENATE, No. 1070
STATE OF NEW JERSEY
ADOPTED MARCH 15, 1993
Sponsored by Senators McNAMARA,
RICE,
Assemblymen Albohn, DiGaetano,
Assemblywoman Crecco and Assemblyman Pascrell
An ACT concerning the remediation of contaminated
property, amending and supplementing P.L.1983, c.330, amending
P.L.1976, c.141, supplementing Title 58 of the Revised Statutes,
amending P.L.1993, c.112, and making an appropriation from
the "Hazardous Discharge Bond Act of 1986".
BE IT ENACTED by the Senate and General
Assembly of the State of New Jersey:
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Section 1 of P.L.1983, c.330 (N.J.S.A. 13:1K-6) is
amended to read as follows:
N.J.S.A. 13:1K-6 Short title.
This act shall be known and may be cited as the "Industrial
Site Recovery Act."
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Section 2 of P.L.1983, c.330 (N.J.S.A. 13:1K-7) is
amended to read as follows:
N.J.S.A. 13:1K-7 Findings, declarations.
The Legislature finds that discharges of toxic chemicals
dating back to early industrialization have left a legacy
of contaminated industrial property in this State; that
in 1983, due to the growing public awareness and concern
of the risks to the public health and the environment
and the potential costs to the State to clean up abandoned
contaminated sites, the "Environmental Cleanup and Responsibility
Act" was enacted. The Legislature also finds that the
act's imposition of a cleanup plan approval before the
transfer or upon the closing of an industrial establishment
and the requirement to establish a funding source for
the cleanup are in the general public interest by ensuring
the discovery of contamination, by assuring that funding
for cleanup is set aside at the time it is available
from a transfer or closing, and by assuring that contaminated
property is not abandoned to the State for cleanup.
The Legislature further finds that at the time of the
act's passage, the extent of the State's industrial
contamination and the cost and complexity of remediations
were not well understood; that in the intervening years,
there has been a significant advance in the body of
knowledge concerning how to remediate contaminated sites
effectively and how to manage the remediation efficiently;
that the regulated and financial communities are now
more familiar with the liabilities involving contaminated
property and with the necessity to discover and remediate
that contamination; and that it is in the interest of
the environment and the State's economic health to promote
certainty in the regulatory process by incorporating
that knowledge to create a more efficient regulatory
structure and to allow greater privatization of that
process where it is possible to do so without incurring
unnecessary risks to the public health or the environment.
The Legislature therefore declares that it is the policy
of this State to protect the public health, safety,
and the environment, to promote efficient and timely
cleanups, and to eliminate any unnecessary financial
burden of remediating contaminated sites; that these
policies can be achieved by streamlining the regulatory
process, by establishing summary administrative procedures
for industrial establishments that have previously undergone
an environmental review, and by reducing oversight of
those industrial establishments where less extensive
regulatory review will ensure the same degree of protection
to public health, safety, and the environment; and that
the new procedures established pursuant to this act
shall be designed to guard against redundancy from the
regulatory process and to minimize governmental involvement
in certain business transactions.
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Section 3 of P.L.1983, c.330 (N.J.S.A. 13:1K-8) is
amended to read as follows:
N.J.S.A. 13:1K-8 Definitions.
As used in this act:
"Remedial action workplan" means a plan for the
remedial action to be undertaken at an industrial establishment,
or at any area to which a discharge originating at the
industrial establishment is migrating or has migrated;
a description of the remedial action to be used to remediate
the industrial establishment; a time schedule and cost
estimate of the implementation of the remedial action;
and any other relevant information the department deems
necessary;
"Closing operations" means:
(1) the cessation of operations resulting in at least
a 90 percent reduction in the total value of the product
output from the entire industrial establishment, as
measured on a constant, annual date-specific basis,
within any five year period, or, for industrial establishments
for which the product output is undefined, a 90 percent
reduction in the number of employees or a 90 percent
reduction in the area of operations of an industrial
establishment within any five year period; provided,
however, the department may approve a waiver of the
provisions of this paragraph for any owner or operator
who, upon application and review, evidences a good faith
effort to maintain and expand product output, the number
of employees, or area of operations of the affected
industrial establishment;
(2) any temporary cessation of operations of an industrial
establishment for a period of not less than two years;
(3) any judicial proceeding or final agency action through
which an industrial establishment becomes nonoperational
for health or safety reasons;
(4) the initiation of bankruptcy proceedings pursuant
to Chapter 7 of the federal Bankruptcy Code, 11 U.S.C.
701 et seq. or the filing of a plan of reorganization
that provides for a liquidation pursuant to Chapter
11 of the federal Bankruptcy Code, 11 U.S.C. 1101 et
seq.;
(5) any change in operations of an industrial establishment
that changes the industrial establishment's Standard
Industrial Classification number to one that is not
subject to this act; or
(6) the termination of a lease unless there is no disruption
in operations of the industrial establishment, or the
assignment of a lease;
"Transferring ownership or operations" means:
(1) any transaction or proceeding through which an industrial
establishment undergoes a change in ownership;
(2) the sale or transfer of more than 50% of the assets
of an industrial establishment within any five year
period, as measured on a constant, annual date-specific
basis;
(3) the execution of a lease for a period of 99 years
or longer for an industrial establishment; or
(4) the dissolution of an entity that is an owner or
operator or an indirect owner of an industrial establishment,
except for any dissolution of an indirect owner of an
industrial establishment whose assets would have been
unavailable for the remediation of the industrial establishment
if the dissolution had not occurred;
"Change in ownership" means:
(1) the sale or transfer of the business of an industrial
establishment or any of its real property;
(2) the sale or transfer of stock in a corporation resulting
in a merger or consolidation involving the direct owner
or operator or indirect owner of the industrial establishment;
(3) the sale or transfer of stock in a corporation,
or the transfer of a partnership interest, resulting
in a change in the person holding the controlling interest
in the direct owner or operator or indirect owner of
an industrial establishment;
(4) the sale or transfer of title to an industrial establishment
or the real property of an industrial establishment
by exercising an option to purchase; or
(5) the sale or transfer of a partnership interest in
a partnership that owns or operates an industrial establishment,
that would reduce, by 10% or more, the assets available
for remediation of the industrial establishment;
"Change in ownership" shall not include:
(1) a corporate reorganization not substantially affecting
the ownership of the industrial establishment;
(2) a transaction or series of transactions involving
the transfer of stock, assets or both, among corporations
under common ownership, if the transaction or transactions
will not result in the diminution of the net worth of
the corporation that directly owns or operates the industrial
establishment by more than 10%, or if an equal or greater
amount in assets is available for the remediation of
the industrial establishment before and after the transaction
or transactions;
(3) a transaction or series of transactions involving
the transfer of stock, assets or both, resulting in
the merger or de facto merger or consolidation of the
indirect owner with another entity, or in a change in
the person holding the controlling interest of the indirect
owner of an industrial establishment, when the indirect
owner's assets would have been unavailable for cleanup
if the transaction or transactions had not occurred;
(4) a transfer where the transferor is the sibling,
spouse, child, parent, grandparent, child of a sibling,
or sibling of a parent of the transferee;
(5) a transfer to confirm or correct any deficiencies
in the recorded title of an industrial establishment;
(6) a transfer to release a contingent or reversionary
interest except for any transfer of a lessor's reversionary
interest in leased real property;
(7) a transfer of an industrial establishment by devise
or intestate succession;
(8) the granting or termination of an easement or a
license to any portion of an industrial establishment;
(9) the sale or transfer of real property pursuant to
a condemnation proceeding initiated pursuant to the
"Eminent Domain Act of 1971," P.L.1971, c.361 (N.J.S.A
20:3-1 et seq.); (10) execution, delivery and filing
or recording of any mortgage, security interest, collateral
assignment or other lien on real or personal property;
or
(11) any transfer of personal property pursuant to a
valid security agreement, collateral assignment or other
lien, including, but not limited to, seizure or replevin
of such personal property which transfer is for the
purpose of implementing the secured party's rights in
the personal property which is the collateral.
"Department" means the Department of Environmental
Protection and Energy;
"Hazardous substances" means those elements and
compounds, including petroleum products, which are defined
as such by the department, after public hearing, and
which shall be consistent to the maximum extent possible
with, and which shall include, the list of hazardous
substances adopted by the Environmental Protection Agency
pursuant to Section 311 of the "Federal Water Pollution
Control Act Amendments of 1972" (33 U.S.C. 1321) and
the list of toxic pollutants designated by Congress
or the Environmental Protection Agency pursuant to Section
307 of that act (33 U.S.C. 1317); except that sewage
and sewage sludge shall not be considered as hazardous
substances for the purposes of this act;
"Hazardous waste" shall have the same meaning
as provided in section 1 of P.L.1976, c.99 (N.J.S.A.
13:lE-38);
"Industrial establishment" means any place of
business engaged in operations which involve the generation,
manufacture, refining, transportation, treatment, storage,
handling, or disposal of hazardous substances or hazardous
wastes on-site, above or below ground, having a Standard
Industrial Classification number within 22-39 inclusive,
46-49 inclusive, 51 or 76 as designated in the Standard
Industrial Classifications Manual prepared by the Office
of Management and Budget in the Executive Office of
the President of the United States. Those facilities
or parts of facilities subject to operational closure
and post-closure maintenance requirements pursuant to
the "Solid Waste Management Act," P.L.1970, c.39 (N.J.S.A.
13:lE-1 et seq.), the "Major Hazardous Waste Facilities
Siting Act," P.L.1981, c.279 (N.J.S.A. 13:lE-49 et seq.)
or the "Solid Waste Disposal Act" (42 U.S.C. 6901 et
seq.), or any establishment engaged in the production
or distribution of agricultural commodities, shall not
be considered industrial establishments for the purposes
of this act. The department may, pursuant to the "Administrative
Procedure Act," P.L.1968, c.410 (N.J.S.A. 52:14B-1 et
seq.), exempt certain sub-groups or classes of operations
within those sub-groups within the Standard Industrial
Classification major group numbers listed in this subsection
upon a finding that the operation of the industrial
establishment does not pose a risk to public health
and safety;
"Negative declaration" means a written declaration,
submitted by the owner or operator of an industrial
establishment or other person assuming responsibility
for the remediation under paragraph (3) of subsection
(b) of section 4 of P.L.1983, c.330 to the department,
certifying that there has been no discharge of hazardous
substances or hazardous wastes on the site, or that
any such discharge on the site or discharge that has
migrated or is migrating from the site has been remediated
in accordance with procedures approved by the department
and in accordance with any applicable remediation regulations;
"Discharge" means an intentional or unintentional
action or omission resulting in the releasing, spilling,
leaking, pumping, pouring, emitting, emptying, or dumping
of a hazardous substance or hazardous waste into the
waters or onto the lands of the State;
"No further action letter" means a written determination
by the department that, based upon an evaluation of
the historical use of the industrial establishment and
the property, or of an area of concern or areas of concern,
as applicable, and any other investigation or action
the department deems necessary, there are no discharged
hazardous substances or hazardous wastes present at
the site of the industrial establishment, at the area
of concern or areas of concern, or at any other site
to which discharged hazardous substances or hazardous
wastes originating at the industrial establishment have
migrated, and that any discharged hazardous substances
or hazardous wastes present at the industrial establishment
or that have migrated from the site have been remediated
in accordance with applicable remediation regulations;
"Indirect owner" means any person who holds a
controlling interest in a direct owner or operator,
holds a controlling interest in another indirect owner,
or holds an interest in a partnership which is an indirect
owner or a direct owner or operator, of an industrial
establishment;
"Direct owner or operator" means any person that
directly owns or operates an industrial establishment.
A holder of a mortgage or other security interest in
the industrial establishment shall not be deemed to
be a direct owner or operator of the industrial establishment
unless or until it loses its exemption under P.L.1993,
c.112 (N.J.S.A. 58:10-23.llg4 et al.) or obtains title
to the industrial establishment by deed of foreclosure,
by other deed, or by court order or other process;
"Area of concern" means any location where hazardous
substances or hazardous wastes are or were known or
suspected to have been discharged, generated, manufactured,
refined, transported, stored, handled, treated, or disposed,
or where hazardous substances or hazardous wastes have
or may have migrated;
"Remediation standards" means the combination
of numeric and narrative standards to which hazardous
substances or hazardous wastes must be investigated
or remediated as established by the department pursuant
to section 35 of P.L.1993, c.139 (N.J.S.A. 58:10B-12);
"Owner" means any person who owns the real property
of an industrial establishment or who owns the industrial
establishment. A holder of a mortgage or other security
interest in the industrial establishment shall not be
deemed to be an owner of the industrial establishment
unless or until it loses its exemption under P.L.1993,
c.112 (N.J.S.A. 58:10-23.llg4 et al.) or obtains title
to the industrial establishment by deed of foreclosure,
by other deed, or by court order or other process;
"Operator" means any person, including users,
tenants, or occupants, having a.nd exercising direct
actual control of the operations of an industrial establishment.
A holder of a mortgage or other security interest in
the industrial establishment shall not be deemed to
be an operator of the industrial establishment unless
or until it loses its exemption under P.L.1993, c.112
(N.J.S.A. 58:10-23.llg4 et al.) or obtains title to
the industrial establishment by deed of foreclosure,
by other deed, or by court order or other process;
"Preliminary assessment" means the first phase
in the process of identifying areas of concern and determining
whether hazardous substances or hazardous wastes are
or were present at an industrial establishment or have
migrated or are migrating from the industrial establishment,
and shall include the initial search for and evaluation
of, existing site specific operational and environmental
information, both current and historic, to determine
if further investigation concerning the documented,
alleged, suspected or latent discharge of any hazardous
substance or hazardous waste is required. The evaluation
of historic information shall be conducted from 1932
to the present, except that the department may require
the search for and evaluation of additional information
relating to ownership and use of the site prior to 1932
if such information is available through diligent inquiry
of public records;
"Remediation" or "remediate" means all
necessary actions to investigate and clean up any known,
suspected, or threatened discharge of hazardous substances
or hazardous wastes, including, as necessary, the preliminary
assessment, site investigation, remedial investigation,
and remedial action;
"Remedial action" means those actions taken at
an industrial establishment or offsite of an industrial
establishment if hazardous substances or hazardous wastes
have migrated or are migrating therefrom, as may be
required by the department to protect public health,
safety, and the environment. These actions may include
the removal, treatment, containment, transportation,
securing, or other engineering measures, whether of
a permanent nature or otherwise, designed to ensure
that any discharged hazardous substances or hazardous
wastes at the site or that have migrated or are migrating
from the site, are remediated in compliance with the
applicable remediation standards;
"Remedial investigation" means a process to determine
the nature and extent of a discharge of hazardous substances
or hazardous wastes at an industrial establishment or
a discharge of hazardous substances or hazardous wastes
that have migrated or are migrating from the site and
the problems presented by a discharge, and may include
data collection, site characterization, sampling, monitoring,
and the gathering of any other sufficient and relevant
information necessary to determine the necessity for
remedial action and to support the evaluation of remedial
actions if necessary;
"Site investigation" means the collection and
evaluation of data adequate to determine whether or
not discharged hazardous substances or hazardous wastes
exist at the industrial establishment or have migrated
or are migrating from the site at levels in excess of
the applicable remediation standards. A site investigation
shall be developed based upon the information collected
pursuant to the preliminary assessment.
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Section 4 of P.L.1983, c.330 (N.J.S.A. 13:1K-9) is
amended to read as follows:
N.J.S.A. 13:1K-9 Closing, transfer procedures.
(a) The owner or operator of an industrial establishment
planning to close operations or transfer ownership or
operations shall notify the department in writing, no
more than five days subsequent to closing operations
or of its public release of its decision to close operations,
whichever occurs first, or within five days after the
execution of an agreement to transfer ownership or operations,
as applicable. The notice to the department shall: identify
the subject industrial establishment; describe the transaction
requiring compliance with P.L.1983, c.330 (N.J.S.A.
13:1K-6 et al.); state the date of the closing of operations
or the date of the public release of the decision to
close operations as evidenced by a copy of the appropriate
public announcement, if applicable; state the date of
execution of the agreement to transfer ownership or
operations and the names, addresses and telephone numbers
of the parties to the transfer, if applicable; state
the proposed date for closing operations or transferring
ownership or operations; list the name, address, and
telephone number of an authorized agent for the owner
or operator; and certify that the information submitted
is accurate. The notice shall be transmitted to the
department in the manner and form required by the department.
The department may, by regulation, require the submission
of any additional information in order to improve the
efficient implementation of P.L.1983, c.330.
(b)(1) Subsequent to the submittal of the notice required
pursuant to subsection a. of this section, the owner
or operator of an industrial establishment shall, except
as otherwise provided by P.L.1983, c.330 or P.L.1993,
c.139 (N.J.S.A. 13:1K-9.6 et al.), remediate the industrial
establishment. The remediation shall be conducted in
accordance with criteria, procedures, and time schedules
established by the department.
(2) The owner or operator shall attach a copy of any
approved negative declaration, approved remedial action
workplan, no further action letter, or remediation agreement
approval to the contract or agreement of sale or agreement
to transfer or any option to purchase which may be entered
into with respect to the transfer of ownership or operations.
In the event that any sale or transfer agreements or
options have been executed prior to the approval of
a negative declaration, remedial action workplan, no
further action letter, or remediation agreement, these
documents, as relevant, shall be transmitted by the
owner or operator, by certified mail, overnight delivery,
or personal service, prior to the transfer of ownership
or operations, to all parties to any transaction concerning
the transfer of ownership or operations, including purchasers,
bankruptcy trustees, mortgagees, sureties, and financiers.
(3) The preliminary assessment, site investigation,
remedial investigation, and remedial action for the
industrial establishment shall be performed and implemented
by the owner or operator of the industrial establishment,
except that any other party may assume that responsibility
pursuant to the provisions of P.L.1983, c.330.
(c) The owner or operator of an industrial establishment
shall, subsequent to closing operations, or of its public
release of its decision to close operations, or prior
to transferring ownership or operations except as otherwise
provided in subsection (e) of this section, as applicable,
submit to the department for approval a proposed negative
declaration or proposed remedial action workplan. Except
as otherwise provided in section 6 of P.L.1983, c.330
(N.J.S.A. 13:1K-11), and sections 13, 16, 17 and 18
of P.L.1993, c.139 (N.J.S.A. 13:1K-11.2, N.J.S.A. 13:1K-11.5,
N.J.S.A. 13:1K-11.6 and N.J.S.A. 13:1K-11.7), the owner
or operator of an industrial establishment shall not
transfer ownership or operations until a negative declaration
or a remedial action workplan has been approved by the
department or the conditions of subsection (e) of this
section for remediation agreements have been met and
until, in cases where a remedial action workplan is
required to be approved or a remediation agreement has
been approved, a remediation funding source, as required
pursuant to section 25 of P.L.1993, c.139 (N.J.S.A.
58:10B-3), has been established.
(d)(1) Upon the submission of the results of either
the preliminary assessment, site investigation, remedial
investigation, or remedial action, where applicable,
which demonstrate that there are no discharged hazardous
substances or hazardous wastes at the industrial establishment,
or that have migrated from or are migrating from the
industrial establishment, in violation of the applicable
remediation standards, the owner or operator may submit
to the department for approval a proposed negative declaration
as provided in subsection (c) of this section.
(2) After the submission and review of the information
submitted pursuant to a preliminary assessment, site
investigation, remedial investigation, or remedial action,
as necessary, the department shall, within 45 days of
submission of a complete and accurate negative declaration,
approve the negative declaration, or inform the owner
or operator of the industrial establishment that a remedial
action workplan or additional remediation shall be required.
The department shall approve a negative declaration
by the issuance of a no further action letter.
(e) The owner or operator of an industrial establishment,
who has submitted a notice to the department pursuant
to subsection a. of this section, may transfer ownership
or operations of the industrial establishment prior
to the approval of a negative declaration or remedial
action workplan upon application to and approval by
the department of a remediation agreement. The owner
or operator requesting a remediation agreement shall
submit the following documents: (1) an estimate of the
cost of the remediation that is approved by the department;
(2) a certification of the statutory liability of the
owner or operator pursuant to P.L.1983, c.330 to perform
and to complete a remediation of the industrial establishment
in the manner and time limits provided by the department
in regulation and consistent with all applicable laws
and regulations; however, nothing in this paragraph
shall be construed to be an admission of liability,
or to impose liability on the owner or operator, pursuant
to P.L.1976, c.141 (N.J.S.A. 58:10-23.11 et seq.) or
pursuant to any other statute or common law; (3) evidence
of the establishment of a remediation funding source
in an amount of the estimated cost of the remediation
and in accordance with the provisions of section 25
of P.L.1993, c.139 (N.J.S.A. 58:10B-3); (4) a certification
that the owner or operator is subject to the provisions
of P.L.1983, c.330, including the liability for penalties
for violating the act, defenses to liability and limitations
thereon, the requirement to perform a remediation as
required by the department, allowing the department
access to the industrial establishment as provided in
section 5 of P.L.1983, c.330 (N.J.S.A. 13:1K-10), and
the requirement to prepare and submit any document required
by the department relevant to the remediation of the
industrial establishment; and (5) evidence of the payment
of all applicable fees required by the department.
The department may require in the remediation agreement
that all plans for and results of the preliminary assessment,
site investigation, remedial investigation, and the
implementation of the remedial action workplan, prepared
or initiated subsequent to the transfer of ownership
or operations, be submitted to the department, for review
purposes only, at the completion of each phase of the
remediation.
The department shall adopt regulations establishing
the manner in which the documents required pursuant
to paragraphs (1) through (5), inclusive, of this subsection
shall be submitted. The department shall approve the
application for the remediation agreement upon the complete
and accurate submission of the documents required to
be submitted pursuant to this subsection. The regulations
shall include a sample form of the certifications. Approval
of a remediation agreement shall not affect an owner's
or operator's right to avail itself of the provisions
of section 6 of P.L.1983, c.330 (N.J.S.A. 13:1K-11),
of section 13, 14, 15, 16, 17, or 18 of P.L.1993, c.139
(N.J.S.A. 13:1K-11.2, N.J.S.A. 13:1K-11.3, N.J.S.A.
13:1K-11.4, N.J.S.A. 13:1K-11.5, N.J.S.A. 13:1K-11.6
or N.J.S.A. 13:1K-11.7), or of the other provisions
of this section.
(f) An owner or operator of an industrial establishment
may perform a preliminary assessment, site investigation,
or remedial investigation for a soil, surface water,
or groundwater remediation without the prior submission
to or approval of the department, except as otherwise
provided in a remediation agreement required pursuant
to subsection (e) of this section. However, the plans
for and results of the preliminary assessment, site
investigation, and remedial investigation may, at the
discretion of the owner or operator, be submitted to
the department for its review and approval at the completion
of each phase of the remediation.
(g)(1) The soil remediation standard to be implemented
on an industrial establishment shall be selected in
conformance with the policies and criteria enumerated
in section 35 of P.L.1993, c.139 (N.J.S.A. 58:10B-12).
(2) The department may not disapprove the use of the
minimum nonresidential soil remediation standards adopted
by the department except upon a finding that the use
of the nonresidential soil remediation standards at
that site would not be protective of public health,
safety, or the environment or except as provided in
subsection i. of this section.
(h) An owner or operator of an industrial establishment
may implement a soil remedial action at an industrial
establishment without prior department approval of the
remedial action workplan for the remediation of soil
when the remedial action can reasonably be expected
to be completed pursuant to standards, criteria, and
time schedules established by the department, which
schedules shall not exceed five years from the commencement
of the implementation of the remedial action and if
the owner or operator is implementing a soil remediation
which meets the established minimum residential or nonresidential
use soil remediation standards adopted by the department.
Nothing in this subsection shall be construed to authorize
the closing of operations or the transfer of ownership
or operations of an industrial establishment without
the department's approval of a negative declaration,
a remedial action workplan or a remediation agreement.
(i) An owner or operator of an industrial establishment
shall base his decision to use the nonresidential use
soil remediation standards for the industrial establishment
upon the criteria listed below, as applicable:
(1) The soil remediation standards proposed for the
industrial establishment are protective of public health,
safety and the environment;
(2) The accessibility of the industrial establishment
to persons not authorized to enter the site;
(3) The transferee of the industrial establishment has
agreed to the implementation of the nonresidential use
soil remediation standards;
(4) The potential for hazardous substances or hazardous
wastes to affect any other property;
(5) The difference in cost between the use of the residential
use soil remediation standards and the nonresidential
use soil remediation standards; and
(6) Consistency with regulations established by the
Pinelands Commission pursuant to P.L.1979, c-111 (N.J.S.A.
13:18A-1 et seq.).
The department shall, within 18 months of the effective
date of P.L.1993, c.139 (N.J.S.A. 13:1K-9.6 et al.),
promulgate regulations to clearly define how the department
will evaluate the application of the criteria enumerated
in paragraphs (1) through (6) of this subsection; provided,
however, that notwithstanding the preceding requirement,
the criteria enumerated in paragraphs (1) through (4)
and in paragraph (6) shall become immediately operative.
Until the department promulgates those regulations,
it shall impose reasonable standards and requirements
upon any owner or operator deciding to use nonresidential
use soil remediation standards pursuant to this subsection.
Furthermore, the department shall not impose any requirement
or standard with regard to the criterion enumerated
in paragraph (5) that would require an owner or operator
to implement residential use soil remediation standards
unless the cost difference between implementing the
residential standards and the nonresidential standards
is a de minimis amount. For the purposes of the preceding,
de minimis shall mean a cost difference not exceeding
10 percent of the cost of implementing the nonresidential
standards.
At any time after the effective date of P.L.1993, c.139,
an owner or operator may request the department to provide
a determination as to whether a proposed remedial action
is consistent with the criteria set forth above in paragraphs
(1) through (6). The department shall provide any such
determination within 30 calendar days of the department's
receipt of the request.
(j) An owner or operator proposing to implement a soil
remedial action other than one which is set forth in
subsection h. of this section must receive department
approval prior to implementation of the remedial action.
(k) An owner or operator of an industrial establishment
shall not implement a remedial action involving the
remediation of groundwater or surface water without
the prior review and approval by the department of a
remedial action workplan.
(l) Submissions of a preliminary assessment, site investigation,
remedial investigation, remedial action workplan, and
the results of a remedial action shall be in a manner
and form, and shall contain any relevant information
relating to the remediation, as may be required by the
department.
Upon receipt of a complete and accurate submission,
the department shall review and approve or disapprove
the submission in accordance with the review schedules
established pursuant to section 2 of P.L.1991, c.423
(N.J.S.A. 13:lD-106). The owner or operator shall not
be required to wait for a response by the department
before continuing remediation activities, except as
otherwise provided in this section. Upon completion
of the remediation, the plans for and results of the
preliminary assessment, site investigation, remedial
investigation, remedial action workplan, and remedial
action and any other information required to be submitted
as provided in section 35 of P.L.1993, c.139 (N.J.S.A.
58:10B-12), that has not previously been submitted to
the department, shall be submitted to the department
for its review and approval.
The department shall review all information submitted
to it by the owner or operator at the completion of
the remediation to determine whether the actions taken
were in compliance with rules and regulations of the
department regarding remediation.
The department may review and approve or disapprove
every remedial action workplan, no matter when submitted,
to determine, in accordance with the criteria listed
in subsection g. of section 35 of P.L.1993, c.139 (N.J.S.A.
58:10B-12) if the remedial action that has occurred
or that will occur is appropriate to meet the applicable
remediation standards.
The department may order additional remediation activities
at the industrial establishment, or offsite where necessary,
or may require the submission of additional information,
where (a) the department determines that the remediation
activities undertaken were not in compliance with the
applicable rules or regulations of the department; (b)
all documents required to be submitted to the department
were not submitted or, if submitted, were inaccurate,
or deficient; or (c) discharged hazardous substances
or hazardous wastes remain at the industrial establishment,
or have migrated or are migrating offsite, at levels
or concentrations in violation of the applicable remediation
standards. Upon a finding by the department that the
remediation conducted at the industrial establishment
was in compliance with all applicable regulations, that
no hazardous substances or hazardous wastes remain at
the industrial establishment in violation of the applicable
remediation standards, and that all hazardous substances
or hazardous wastes that migrated from the industrial
establishment have been remediated in conformance with
the applicable remediation standards, the department
shall approve the remediation for that industrial establishment
by the issuance of a no further action letter.
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Section 2 of P.L.1991, c.238 (N.J.S.A. 13:1K-9.2)
is amended to read as follows:
N.J.S.A. 13:1K-9.2 Owner, operator required to remediate
industrial establishment.
The acquiring of title to an industrial establishment
by a municipality pursuant to a foreclosure action pertaining
to a certificate of tax sale purchased and held by the
municipality shag not relieve the previous owner or
operator of the industrial establishment of his duty
to remediate the industrial establishment as required
pursuant to P.L.1983, c.330.
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Section 3 of P.L.1991, c.238 (N.J.S.A. 13:1K-9.3)
is amended to read as follows:
N.J.S.A. 13:1K-9.3 Remediation of industrial establishment
by municipality, debt of immediate past owner or operator.
If a municipality undertakes a remediation of an industrial
establishment, the title to which the municipality acquired
pursuant to a foreclosure action pertaining to a certificate
of tax sale, all expenditures incurred in the remediation
shall be a debt of the immediate past owner or operator
of the industrial establishment. The debt shall constitute
a lien on all property owned by the immediate past owner
or operator when a notice of lien, incorporating a description
of the property subject to the remediation and an identification
of the amount of remediation and related costs expended
by the municipality is duly filed with the clerk of
the Superior Court. The clerk shall promptly enter upon
the civil judgment or order docket the name and address
of the immediate past owner or operator and the amount
of the lien as set forth in the notice of lien. Upon
entry by the clerk, the lien shall attach to the revenues
and all real and personal property of the immediate
past owner or operator, whether or not he is insolvent.
The notice of lien filed pursuant to this section which
affects any property of an immediate past owner or operator
shall have priority from the day of the filing of the
notice of the lien, but shall not affect any valid lien,
right, or interest in the property filed in accordance
with established procedure prior to the filing of a
notice of lien pursuant to this section.
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Section 5 of P.L.1991, c.238 (N.J.S.A. 13:1K-9.5)
is amended to read as follows:
N.J.S.A. 13:1K-9.5 Remediation by municipality approval.
If a municipality undertakes a remediation of an industrial
establishment, the municipality shall undertake that
remediation and shall obtain all approvals required
by the Department of Environmental Protection and Energy.
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N.J.S.A. 13:1K-9.6 Review, approval of remediation.
Upon the submission of the complete and accurate results
of a phase of the remediation pursuant to section 4
of P.L.1983, c.330 (N.J.S.A. 13:1K-9) or of any other
document required to be submitted that requires the
department's review and approval in order to comply
with P.L.1983, c.330, the department shall review and
approve, approve with conditions, or disapprove the
submission or other documents in accordance with the
review schedules established pursuant to section 2 of
P.L.1991, c.423 (N.J.S.A. 13:lD-106).
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N.J.S.A. 13:1K-9.7 Transfer, close of operations
without compliance; conditions.
The owner or operator of an industrial establishment
may, upon submission of a written notice to the department,
transfer ownership or operations or close operations
without complying with the provisions of section 4 of
P.L.1983, c.330 (N.J.S.A. 13:1K-9) if the total quantity
of hazardous substances and hazardous wastes generated,
manufactured, refined, transported, treated, stored,
handled, or disposed of at the industrial establishment
at any one time during the owner's or operator's period
of ownership or operations: (a) does not exceed 500
pounds or 55 gallons; (b) if a hazardous substance or
hazardous waste is mixed with nonhazardous substances,
the total quantity in the mixture does not exceed 500
pounds or 55 gallons; or (c) if, in the aggregate, hydraulic
or lubricating oil, does not exceed 220 gallons.
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Section 5 of P.L.1983, c.330 (N.J.S.A. 13:1K-10) is
amended to read as follows:
N.J.S.A. 13:1K-10 Rules, regulations; department
access.
(a) The department shall, pursuant to the "Administrative
Procedure Act," P.L.1968, c.410 (N.J.S.A. 52:14B-1 et
seq.), adopt rules and regulations establishing:
(1) criteria and minimum standards necessary for the
submission, evaluation and approval of plans or results
of preliminary assessments, site investigations, remedial
investigations, and remedial action workplans and for
the implementation thereof. The documents for the preliminary
assessment, site investigation, remedial investigation,
and remedial action workplan required to be submitted
for a remediation shall not be identical to the criteria
and standards used for similar documents submitted pursuant
to federal law, except as may be required by federal
law. In establishing criteria and minimum standards
for these terms, the department shall strive to avoid
duplicate or unnecessarily costly or time consuming
conditions or standards;
(2) a fee schedule, as necessary, reflecting the actual
costs associated with the review of plans for or results
of negative declarations, preliminary assessments, site
investigations, remedial investigations, and remedial
actions, and review of the implementation thereof and
for any other review or approval required by the department;
(3) standards and procedures for remediation agreements
authorized pursuant to subsection (e) of section 4 of
P.L.1983, c.330 (N.J.S.A. 13:1K-9); and
(4) any other provisions or procedures necessary to
implement this act.
(b) The owner or operator shall allow the department
reasonable access to the industrial establishment and
to offsite areas under the owner's or operator's control
to inspect the premises, review records, and to take
soil, groundwater, or other samples or measurements
as deemed necessary by the department to verify the
results of any submission made to the department and
to verify the owner's or operator's compliance with
the requirements of this act.
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Section 6 of P.L.1983, c.330 (N.J.S.A. 13:1K-11) is
amended to read as follows:
N.J.S.A. 13:1K-11 Transfer of industrial establishment;
deferral of remedial action workplan.
(a) The owner or operator of an industrial establishment
planning to transfer ownership or operations may apply
to the department for a deferral of the preparation,
approval, and implementation of a remedial action workplan
for the industrial establishment. The applicant shall
submit to the department:
(1) a certification signed by the purchaser, transferee,
mortgagee or other party to the transfer, approved by
the department, that the industrial establishment would
be subject to substantially the same use by the purchaser,
transferee, mortgagee or other party to the transfer;
(2) a certification, approved by the department, that
the owner or operator has satisfactorily completed a
preliminary assessment, site investigation, and remedial
investigation of the industrial establishment;
(3) a cost estimate for the remedial action necessary
at the industrial establishment, approved by the department
based upon the information collected in the preliminary
assessment, site investigation, and remedial investigation
and developed in accordance with department regulations;
and
(4) a certification, approved by the department, that
the purchaser, transferee, mortgagee or other party
to the transfer has the financial ability to pay for
the implementation of the necessary remedial action.
The preparation, approval, and implementation of a remedial
action workplan for the industrial establishment may
be deferred for that transfer until the use changes
or until the purchaser, transferee, mortgagee or other
party to the transfer closes operations.
(b) Upon submission of a complete and accurate application,
the department shall approve the deferral. Upon approval
of the deferral, the preparation, approval, and implementation
of a remedial action workplan at the industrial establishment
shall be deferred.
(c) The authority to defer the preparation, approval,
and implementation of a remedial action workplan set
forth in this section shall not be construed to limit,
restrict, or prohibit the department from directing
site remediation under any other statute, rule, or regulation,
but shall be solely applicable to the obligations of
the owner or operator of an industrial establishment,
pursuant to the provisions of this act, nor shall any
other provisions of this act be construed to limit,
restrict, or prohibit the department from directing
site remediation under any other statute, rule, or regulation.
For the purposes of this section, substantially the
same use means that the industrial establishment shall
retain the same three digit Industry Group Number, as
designated in the Standard Industrial Classifications
Manual prepared by the federal Office of Management
and Budget in the Executive Office of the President
of the United States. In a manner and form, and in accordance
with the specific criteria prescribed by the department,
an applicant may petition for a finding by the department
that the affected industrial establishment be deemed
subject to substantially the same use based upon its
retention of the same two digit Major Group Number,
as designated in the Standard Industrial Classifications
Manual.
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Section 8 of P.L.1983, c.330 (N.J.S.A. 13:1K-13) is
amended to read as follows:
N.J.S.A. 13:1K-13 Grounds for voiding sale; violations;
penalties.
(a) Failure of the transferor to perform a remediation
and obtain department approval thereof as required pursuant
to the provisions of this act is grounds for voiding
the sale or transfer of an industrial establishment
or any real property utilized in connection therewith
by the transferee, entitles the transferee to recover
damages from the transferor, and renders the owner or
operator of the industrial establishment strictly liable,
without regard to fault, for all remediation costs and
for all direct and indirect damages resulting from the
failure to implement the remedial action workplan. A
transferee may not act to void the sale or transfer
of an industrial establishment or any real property
except upon providing notice to the transferor of the
failure to perform and affording the transferor a reasonable
amount of time to comply with the provisions of this
act.
(b) Any person who knowingly gives or causes to be given
any false information or who fails to comply with the
provisions of this act is liable for a penalty of not
more than $25,000.00 for each offense. If the violation
is of a continuing nature, each day during which it
continues shall constitute an additional and separate
offense. Penalties shall be collected in a civil action
by a summary proceeding under "the penalty enforcement
law" (N.J.S.2A:58-1 et seq.). Any officer or management
official of an industrial establishment who knowingly
directs or authorizes the violation of any provisions
of this act shall be personally liable for the penalties
established in this subsection.
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N.J.S.A. 13:1K-11.2 Application for expedited review.
(a) The owner or operator of an industrial establishment
planning to close operations or transfer ownership or
operations of an industrial establishment may, in lieu
of complying with the provisions of subsection (b) of
section 4 of P.L.1983, c.330 (N.J.S.A. 13:1K-9), apply
to the department for an expedited review. An application
for an expedited review pursuant to this section shall
include:
(1) the notice required pursuant to the provisions of
subsection a. of section 4 of P.L.1983, c.330 (N.J.S.A.
13:1K-9);
(2) a certification that for the industrial establishment,
a remedial action workplan has previously been implemented
and a no further action letter has been issued pursuant
to P.L.1983, c.330, a negative declaration has been
previously approved by the department pursuant to P.L.1983,
c.330, or the department or the United States Environmental
Protection Agency, pursuant to the "Resource Conservation
and Recovery Act," 42 U.S.C. SS6901 et seq. or the "Comprehensive
Environmental Response, Compensation, and Liability
Act of 1980," 42 U.S.C. SS9601 et seq., or any other
law, has previously approved a remediation of the industrial
establishment equivalent to that performed pursuant
to the provisions of P.L.1983, c.330;
(3) a certification that the owner or operator has performed
remediation activities at the industrial establishment
that are consistent with current regulations established
by the department in order to identify areas of concern
that are new or have continued in use since the issuance
of a no further action letter, negative declaration
approval, or remediation approval as described in paragraph
(2) of this subsection, and, based on those remediation
activities, that there has been no discharge of a hazardous
substance or hazardous waste at the industrial establishment
subsequent to the approval of the negative declaration,
the issuance of the no further action letter, or the
equivalent remediation; or, if any discharge has occurred,
a certification listing any discharge, describing the
action taken to remediate the discharge, a certification
that the remediation was performed in accordance with
procedures established by the department, a certification
that the remediation was approved by the department
and a copy of the document evidencing the departmental
approval;
(4) a certification that for any underground storage
tank covered by the provisions of P.L.1986, c.102 (N.J.S.A.
58:10A-21 et seq.), an approved method of secondary
containment or a monitoring system as required by P.L.1986,
c.102, has been installed;
(5) a copy of the most recent negative declaration,
or no further action letter, or other approval, as applicable,
approved by the department for the entire industrial
establishment; and
(6) a proposed negative declaration.
(b) Upon the submission of a complete and accurate application
and after an inspection, if necessary, the department
shall approve or disapprove the negative declaration.
The department shall approve the negative declaration
upon a finding that the information in the certifications
submitted pursuant to subsection a. of this section
is accurate. Upon a disapproval of the proposed negative
declaration by the department pursuant to this section,
the owner or operator shall comply with the provisions
of section 4 of P.L.1983, c.330.
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N.J.S.A. 13:1K-11.3 Application for limited site
review.
(a) The owner or operator of an industrial establishment
planning to close operations or transfer ownership or
operations of the industrial establishment may, in lieu
of complying with the provisions of subsection (b) of
section 4 of P.L.1983, c.330 (N.J.S.A. 13:1K-9), apply
to the department for a limited site review. An application
for a limited site review pursuant to this section shall
include:
(1) the notice required pursuant to the provisions of
subsection a. of section 4 of P.L.1983, c.330 (N.J.S.A.
13:1K-9);
(2) a certification that for the industrial establishment,
a remedial action workplan has previously been implemented
and a no further action letter has been issued pursuant
to P.L.1983, c.330, a negative declaration has been
previously approved by the department pursuant to P.L.1983,
c.330, or the department or the United States Environmental
Protection Agency, pursuant to the "Resource Conservation
and Recovery Act," 42 U.S.C. 6901 et seq. or the "Comprehensive
Environmental Response, Compensation, and Liability
Act of 1980," 42 U.S.C. 9601 et seq., or any other law,
has previously approved a remediation of the industrial
establishment equivalent to that performed pursuant
to the provisions of P.L.1983, c.330;
(3) a certification that the owner or operator has performed
remediation activities at the industrial establishment
that are consistent with current regulations established
by the department in order to identify areas of concern
and, based on those remediation activities, that subsequent
to the issuance of the negative declaration, no further
action letter or remediation approval described in paragraph
(2) of this subsection, a discharge has occurred at
the industrial establishment that was not remediated
in accordance with the procedures established by the
department or that any remediation performed has not
been approved by the department and that no other discharge
of a hazardous substance or hazardous waste has occurred
at the industrial establishment;
(4) a certification that for any underground storage
tank covered by the provisions of P.L.1986, c.102 (N.J.S.A.
58:10A-21 et seq.), an approved method of secondary
containment or a monitoring system as required by P.L.1986,
c.102, has been installed;
(5) a copy of the most recent negative declaration,
no further action letter, or other approval, as applicable,
approved by the department for the industrial establishment;
and
(6) a proposed negative declaration, if applicable.
(b) Upon the submission of a complete application, and
after an inspection if necessary, the department may:
(1) approve the negative declaration upon a finding
that any discharge of a hazardous substance or hazardous
waste, as certified to pursuant to paragraph (3) of
subsection a. of this section, has been remediated consistent
with the applicable remediation standards as established
by the department; or
(2) require that the owner or operator perform a remediation
as set forth in subsection (b) of section 4 of P.L.1983,
c.330 (N.J.S.A. 13:1K-9) only for those areas of concern
identified by the information provided pursuant to paragraph
(3) of subsection a. of this section upon a finding
that further investigation or remediation is necessary
to bring the industrial establishment into compliance
with the applicable remediation standards.
(c) The owner or operator of an industrial establishment
subject to the provisions of this section shall not
close operations or transfer ownership or operations
until a remedial action workplan, or a negative declaration,
as applicable, has been approved by the department or
upon approval of a remediation agreement as provided
in subsection (e) of section 4 of P.L.1983, c.330.
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N.J.S.A. 13:1K-11.4 Application for area of concern
waiver.
(a) The owner or operator of an industrial establishment
who is required to perform a remediation at an industrial
establishment pursuant to subsection (b) of section
4 of P.L.1983, c.330 (N.J.S.A. 13:1K-9) may apply to
the department for an area of concern waiver. Approval
of the area of concern waiver shall relieve the owner
or operator of the requirement to perform a remediation
pursuant to subsection (b) of section 4 of P.L.1983,
c.330 (N.J.S.A. 13:1K-9) for any area of concern at
that industrial establishment for which a remediation
has previously been conducted and approved by the department.
An application pursuant to this subsection shall include:
(1) a certification that the department or the United
States Environmental Protection Agency, pursuant to
the "Resource Conservation and Recovery Act," 42 U.S.C.
6901 et seq. or the "Comprehensive Environmental Response,
Compensation, and Liability Act of 1980," 42 U.S.C.
9601 et seq., or any other law, has previously approved
a remediation at an area of concern and has issued a
no further action letter or an equivalent approval of
a remediation for that area of concern;
(2) a copy of the most recent no further action letter
or equivalent approval for that area of concern, approved
by the department; and
(3) a certification that the owner or operator has performed
remediation activities at that area of concern that
are consistent with current regulations established
by the department, and based on those remediation activities,
that subsequent to the issuance of the no further action
letter or equivalent approval described in paragraph
(1) of this subsection, there has been no discharge
of a hazardous substance or hazardous waste at that
area of concern.
(b) Upon submission of a complete and accurate application
and after an inspection, if necessary, the department
shall approve the application for an area of concern
waiver upon a finding that the information in the certifications
submitted pursuant to subsection a. of this section
is accurate. Upon a disapproval of the application by
the department pursuant to this section, the owner or
operator shall perform a remediation of the subject
area of concern as may be required pursuant to subsection
(b) of section 4 of P.L.1983, c.330.
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N.J.S.A. 13:1K-11.5 Application for closing, transfer
when remediation is already in progress.
(a) The owner or operator of an industrial establishment
may apply to the department to close operations or transfer
ownership or operations at an industrial establishment
without obtaining departmental approval of a remedial
action workplan or a negative declaration or without
the approval of a remediation agreement as provided
in subsection (e) of section 4 of P.L.1983, c.330 (N.J.S.A.
13:1K-9), if the industrial establishment is already
in the process of a remediation pursuant to subsection
(b) of section 4 of P.L.1983, c.330 (N.J.S.A. 13:1K-9)
or a remediation equivalent to that performed pursuant
to the provisions of P.L.1983, c.330, including a cleanup
being performed under the "Resource Conservation and
Recovery Act," 42 U.S.C. SS6901 et seq. or the "Comprehensive
Environmental Response, Compensation, and Liability
Act of 1980," 42 U.S.C. SS9601 et seq.. The application
shall include:
(1) the notice required pursuant to the provisions of
subsection a. of section 4 of P.L.1983, c.330;
(2) a certification that there has been no discharge
of any hazardous substance or hazardous waste at the
industrial establishment during the applicant's period
of operation or ownership or that the remediation of
any discharge of a hazardous substance or hazardous
waste that occurred during the applicant's period of
ownership or operation was approved by the department;
(3) a certification by the owner or operator that a
remediation funding source for the cost of the remediation
or the implementation of the remedial action workplan
at the industrial establishment has been established
as required pursuant to section 25 of P.L.1993, c.139
(N.J.S.A. 58:10B-3); and
(4) a certification, as applicable, that any transferee
of the industrial establishment has been notified that
the industrial establishment is the subject of a remediation.
(b) Upon the submission of a complete application, and
upon a finding that the information submitted is accurate,
the department shall authorize, in writing, that the
applicant may close operations or transfer ownership
or operations of the industrial establishment.
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N.J.S.A. 13:1K-11.6 Application for closing, transfer
when discharges are from regulated underground storage
tank.
(a) The owner or operator of an industrial establishment
may apply to the department to close operations or transfer
ownership or operations at an industrial establishment
without obtaining departmental approval of a remedial
action workplan or a negative declaration or without
the approval of a remediation agreement as provided
in subsection (e) of section 4 of P. L. 1983, c.330
if the only areas of concern or the only discharges
at the industrial establishment are from an underground
storage tank or tanks regulated pursuant to P.L.1986,
c.102 (N.J.S.A. 58:10A-21 et seq.). The application
shall include:
(1) the notice required pursuant to the provisions of
subsection a. of section 4 of P.L.1983, c.330;
(2) the submission of a preliminary assessment that
shows that the only area of concern at an industrial
establishment is an underground storage tank or tanks
as defined pursuant to section 2 of P.L.1986, c.102
(N.J.S.A. 58:10A-22), or the submission of a site investigation
that shows that the only discharged hazardous substances
or hazardous wastes at the industrial establishment,
or that has migrated offsite, above the applicable remediation
standards are from a leak or discharge from that underground
storage tank or tanks; and
(3) a certification that the owner or operator of the
industrial establishment is in compliance with the provisions
of P.L.1986, c.102 for all underground storage tanks
at the industrial establishment that are covered by
that act. The owner or operator of an industrial establishment,
at which a discharge of a hazardous substance or hazardous
waste from an underground storage tank has occurred,
shall be deemed in compliance with the provisions of
P.L.1986, c.102, as it relates to that discharge for
the purposes of this paragraph, if the owner or operator
has been issued an order by or has entered into an agreement
with the department to remediate that discharge and
the owner or operator is in compliance with that order
or agreement.
(b) Upon the submission of a complete application, and
upon a finding that the information submitted is accurate,
the department shall authorize, in writing, the applicant
to close operations or transfer ownership or operations
of the industrial establishment.
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N.J.S.A. 13:1K-11.7 Application for closing, transfer
when discharges are of minimal environmental concern.
(a) The owner or operator of an industrial establishment
may apply to the department to close operations or transfer
ownership or operations at an industrial establishment
without obtaining departmental approval of a remedial
action workplan or without the approval of a remediation
agreement as provided in subsection (e) of section 4
of P.L.1983, c.330 if the discharge of hazardous substances
or hazardous wastes at the industrial establishment
is of minimal environmental concern. Upon the completion
of a preliminary assessment, site investigation, and
remedial investigation for the industrial establishment,
conducted pursuant to subsection (b) of section 4 of
P.L.1983, c.330, any owner or operator may submit to
the department an application for a determination that
the discharge at an industrial establishment is of minimal
environmental concern, which application shall include:
(1) a certification, supported by the submission of
data from the preliminary assessment, site investigation,
and remedial investigation, that there are no more than
two areas of concern at the industrial establishment
that are contaminated at levels above the applicable
remediation standards, and that remedial action at those
areas of concern can be completed pursuant to standards
and criteria established by the department within six
months of the owner's or operator's receipt of the approval
of the application by the department;
(2) a certification that a remedial action workplan
shall be prepared pursuant to standards and criteria
established by the department and that the remediation
will meet either the nonresidential use or residential
use soil remediation standards and the applicable surface
water and groundwater remediation standards;
(3) a certification that the remedial action workplan
will be prepared and implemented pursuant to standards
and criteria established by the department within six
months of the owner's or operator's receipt of the approval
of the application by the department;
(4) evidence that the remediation funding source required
pursuant to section 25 of P.L.1993, c.139 (N.J.S.A.
58:10B-3) has been established;
(5) the payment of all fees or surcharges related to
the remediation imposed pursuant to P.L.1983, c.330,
P.L.1993, c.139 (N.J.S.A. 13:1K-9.6 et al.), and section
33 of P.L.1993, c.139 (N.J.S.A. 58:10B-11), and any
rules or regulations adopted pursuant thereto; and
(6) documentation establishing that the discharged hazardous
substances or hazardous wastes at the industrial establishment
do not pose a threat to human health because of the
proximity of an area of concern to a drinking water
source or because of the location, complexity, or the
nature of the discharge.
(b) Upon the submission of a complete application, and
upon a finding that the information submitted is accurate,
the department shall approve the application for a determination
that the discharge at an industrial establishment is
of minimal environmental concern. Prior to making a
finding upon the application pursuant to this section,
the department may inspect the industrial establishment,
as necessary, to verify the information in the application.
The decision of the department shall be made within
30 days of the submission of a complete application.
In determining the amount of time necessary to complete
the remedial action, the department shall not include
that time in which it takes the department to issue
a permit for a discharge to surface water pursuant to
P.L.1977, c.74 (N.J.S.A. 58:10A-1 et seq.).
(c) The owner or operator shall, upon the completion
of the remedial action at the subject areas of concern,
certify to the department that the remedial action workplan
has been implemented in accordance with the standards
and criteria established by the department and in compliance
with the certifications made pursuant to this section.
The certification shall include a copy of the remedial
action workplan and the results of all sampling analysis
and any tests performed as part of the remedial action.
Within 45 days of receipt of the certification, the
department shall issue a no further action letter to
the owner or operator. The department may perform an
inspection of the industrial establishment or any area
offsite that is under the owner's or operator's control,
as relevant, prior to issuing the no further action
letter.
The department may refuse to issue the no further action
letter pursuant to this section only upon a finding
that hazardous substances or hazardous wastes remain
at the relevant areas of concern at levels or concentrations
in excess of the applicable remediation standards.
(d) Upon the failure of an owner or operator to complete
the implementation of a remedial action workplan within
the six month period as provided in subsection a. of
this section, the owner or operator shall so notify
the department in writing and provide the reasons therefor.
The owner or operator shall have no more than 120 additional
days to complete the implementation of the remedial
action. If the implementation of the remedial action
is not completed within this additional time, the department
may rescind its determination that the industrial establishment
is of minimal environmental concern and may require
that a new remedial action workplan be submitted and
implemented by the owner or operator in a manner and
under the terms and conditions provided in its general
regulations for remedial action workplan submissions
and implementation.
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N.J.S.A. 13:1K-11.8 Application for certificate
of limited conveyance.
(a) The owner of an industrial establishment may transfer
a portion of the real property on which an industrial
establishment is situated without conducting a remediation
of the entire industrial establishment pursuant to the
provisions of P.L.1983, c.330, if, upon application
by the owner, the department issues a certificate of
limited conveyance pursuant to subsections (b) through
(e) of this section, or if the owner transfers the portion
of real property in accordance with the provisions of
subsection (f) of this section.
(b) An application for a certificate of limited conveyance
shall be in the form of a certification by the owner
which shall include a description of the real property
to be transferred, an appraisal of the real property
to be transferred, the sale price or market value of
the real property to be transferred, an appraisal of
the entire industrial establishment, and an appraisal
of the remaining property if the certificate of limited
conveyance were issued, as well as any other information
the department deems necessary to make the findings
required in subsection (c) of this section.
(c) The department shall issue a certificate of limited
conveyance for a portion of the real property on which
an industrial establishment is situated after the submission
of a complete and accurate application and upon a finding
that the sales price or market value of the real property
to be conveyed, together with any additional diminution
in value to the remaining property as a result of the
conveyance is not more than one third of the total appraised
value of the industrial establishment prior to the transfer,
and that the remaining real property is an industrial
establishment subject to the provisions of P.L.1983,
c.330. The appraisals shall be made no more than one
year prior to the submission of application for a certificate
of limited conveyance. Conveyances made pursuant to
this section shall not exceed one third of the value
of the industrial establishment during the period of
ownership of the applicant.
(d) Upon issuance of the certificate of limited conveyance,
the owner or operator shall, prior to the conveyance,
comply with the provisions of section 4 of P.L.1983,
c.330 for that portion of the real property certified
for conveyance. The remediation that may be required
on the real property subject to the certificate of limited
conveyance shall include any hazardous substances or
hazardous wastes that are migrating from the remaining
portion of the industrial establishment onto the real
property being conveyed. The remaining portion of the
industrial establishment, upon the subsequent closing
of operations or transferring of ownership or operations,
shall be subject to the provisions of P.L.1983, c.330
and P.L.1993, c.139 (N.J.S.A. 13:1K-9.6 et al.).
(e) A certificate of limited conveyance shall be valid
for three years from the date of issuance.
(f) An owner, either as part of or subsequent to a conveyance
made in accordance with subsections (b) through (e)
of this section, may transfer additional portions of
the real property of the industrial establishment in
excess of the conveyance limitation set forth in subsection
(c) of this section; provided, however, that the additional
portions proposed for transfer do not constitute a closing
of operations or transferring of ownership or operations,
subject to section 4 of P.L.1983, c.330. The amount
paid for the additional portion of real property, or
any part thereof, which exceeds the permissible conveyance
limitation under subsection (c) of this section shall
be used exclusively for the purposes of remediating
that parcel of real property in accordance with the
provisions of subsection (d) of this section; provided,
however, if any portion of that amount shall remain
unexpended for the remediation of the parcel, that unexpended
amount shall be deposited in a remediation trust fund
as provided in subsection g. of this section.
(g) To provide for the subsequent remediation of that
portion of the real property of an industrial establishment
which was not transferred pursuant to subsection (f)
of this section, the owner shall establish a remediation
trust fund in accordance with subsection (c) of section
25 of P.L.1993, c.139 (N.J.S.A. 58:10B-3) and shall
deposit any unexpended amounts, as provided in subsection
(f) of this section, into that fund.
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N.J.S.A. 13:1K-11.9 Responsibilities of owner as
landlord, operator as tenant.
(a) Where the owner of an industrial establishment is
a landlord and the operator of the industrial establishment
is a tenant, the landlord shall be responsible for providing
any information that is requested by the tenant that
is not otherwise available through a diligent inquiry
by the tenant, and the tenant shall be responsible for
providing any information that is requested by the landlord
that is not otherwise available through a diligent inquiry
by the landlord.
(b) Where the owner of an industrial establishment is
a landlord and the operator of the industrial establishment
is a tenant, the person that remediates the industrial
establishment shall provide copies to the other person
of all submissions to the department concerning the
remediation.
(c) Where the owner of an industrial establishment is
a landlord and the operator of the industrial establishment
is a tenant, and there has been a failure to comply
with the provisions of P.L.1983, c.330, the landlord
or the tenant may petition the department, in writing,
to first compel that party who is responsible pursuant
to the provisions of the lease, to comply with the requirements
of P.L.1983, c.330. The petition shag include a copy
of the signed lease between the landlord and the tenant.
Upon a determination by the department that the provisions
of the lease are unclear as it relates to the responsibility
of either party to comply with the provisions of P.
L. 1983, c. 330, or upon the failure by the person responsible
pursuant to the provisions of the lease to comply, the
department may compel compliance by all persons subject
to the requirements of P.L.1983, c.330 for the industrial
establishment.
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N.J.S.A. 13:1K-11.10 Notification of transfer,
avoidance of penalty.
(a) Any person who, prior to the effective date of P.L.1993,
c.139, violated the provisions of P.L.1983, c.330 by
closing operations or transferring ownership or operations
of an industrial establishment without receiving departmental
approval of a cleanup plan or a negative declaration
pursuant to the provisions of P.L.1983, c.330, or without
entering into an administrative consent order that allows
the closure of operations or transfer of ownership or
operations, shall not be subject to a penalty for that
violation if the person notifies the department of the
closure of operations or of the transfer of ownership
or operations of the industrial establishment, and,
within one year of the effective date of P.L.1993, c.139,
enters into an administrative consent order or a memorandum
of agreement with the department to complete a remediation
of the industrial establishment pursuant to the provisions
of P.L.1983, c.330 and any rules or regulations adopted
pursuant thereto.
(b) Notwithstanding the provisions of subsection (a)
of this section, any person who enters into a memorandum
of agreement or an administrative consent order with
the department pursuant to this section and fails to
remediate the industrial establishment in accordance
with the memorandum of agreement or administrative consent
order shall be subject to penalties for violations that
occurred before the effective date of P.L.1993, c.139
as well as any penalties for subsequent violations.
(c) Any documents or information provided to the department
pursuant to this section may not be used in a criminal
investigation or criminal prosecution against the person
providing the information or documents for those violations
that occurred before the effective date of P.L.1993,
c.139 as long as the person remediates the industrial
establishment in conformance with the administrative
consent order or memorandum of agreement entered into
pursuant to subsection (a) of this section.
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N.J.S.A. 13:1K-11.11 Audit of negative declarations
and remedial action workplans.
(a) Within one year of the effective date of P.L.1993,
c.139, the Department of Environmental Protection and
Energy shall conduct an audit of the negative declarations
and remedial action workplans that have been submitted
to the department pursuant to P.L.1983, c.330 (N.J.S.A.
13:1K-6 et al.). On the basis of this audit, and any
other information it may have available to it, the department
shall adopt regulations identifying, within the Standard
Industrial Classification major group numbers listed
in the definition of "industrial establishment," all
industries designated by Standard Industrial Classification
number subgroups, or classes of operations within those
subgroups, that should not pose a risk to public health
and safety or to the environment. The audit shall, to
the extent practicable, distinguish between hazardous
substances or hazardous wastes at an industrial establishment
caused by a particular type of industry and hazardous
substances or hazardous wastes that exist as a result
of activities at an industrial establishment unrelated
to the activities of that industry.
(b) An industrial establishment for which a remedial
action workplan was previously implemented and a no
further action letter was received pursuant to P.L.1983,
c.330, a negative declaration was previously approved
by the department pursuant to P.L.1983, c.330, or for
which the department has previously approved a remediation
equivalent to that performed pursuant to the provisions
of P.L.1983, c.330, and that is designated by a Standard
Industrial Classification subgroup or class of operations
that does not pose a risk to public health and safety
or to the environment as identified in subsection (a)
of this section, shall not be considered an industrial
establishment for the purposes of P.L.1983, c.330.
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N.J.S.A. 58:10B-1 Definitions.
As used in sections 23 through 43 of P.L.1993, c.139
(N.J.S.A. 58:10B-1 et seq.):
"Area of concern" means any location where contaminants
are or were known or suspected to have been discharged,
generated, manufactured, refined, transported, stored,
handled, treated, or disposed, or where contaminants
have or may have migrated;
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