NJDEP Looking to Reform “Broken” Site Remediation Program

By Jorge H. Berkowitz, Ph.D. and Stewart H. Abrams, P.E., Langan Engineering and Environmental Services

As a result of the Kiddie College mercury contamination issue and the testimony offered by New Jersey Department of Environmental Protection Commissioner Lisa Jackson in 2006 to the Senate Environmental Committee, significant efforts to reform the Site Remediation Program (SRP) within the NJDEP have been ongoing since the fall of last year. In the commissioner’s own words, “the program is broken.”

To the credit of the legislature and the Department, rather than quickly respond to the problems within the program, a stakeholders committee was formed to work with the Department to identify problems and pose solutions. We were fortunate to be part of that process which took place over the last year and a half. The stakeholders represented disparate interests and included major professional trade groups, such as The State Chamber and others, environmentalists, environmental justice representatives, consultants, community activists and others. The process was forthright and candid.

The end result was the development of series of white papers which captured the thoughts and issues of the stakeholders. These papers did not represent the position of the Department but recorded the views of the stakeholders on the various topics. The Department’s distillation of this process is best identified in Commissioner Jackson’s and Assistant Commissioner Irene Kropp’s recent testimony before the joint hearing of the Senate and Assembly Committee on the Environment.

The initiatives identified by the Department to help “fix” the SRP involve reducing the workload of the Department by establishing a Licensed Environmental Professional program; selecting remedies for high risk sites and establishing finality for cleanups.

Workload Reduction

The Department has seen its case load grow from 16,000 cases to 20,000 in over a year and a half. As the Commissioner has pointed out, “…this equates to contamination remaining unaddressed, potentially spreading and potentially impacting the health of our residents.” In order to attack the backlog, the Commissioner is recommending the certification and use of Licensed Environmental Professionals.

The Department, in an attempt to reduce its workload, has looked at how Licensed Professionals are utilized by other states in the cleanup program. In particular, Massachusetts has a program which results in faster and often better cleanups. The Department is proposing to borrow aspects of the Massachusetts program to allow certified professionals to proceed through the investigation and remediation of selected sites with a minimum of DEP oversight. Sites involving critical “at risk” receptors or those involving recalcitrant responsible parties would still require significant NJDEP oversight. All cases would have NJDEP determine that the site was satisfactorily cleaned up and only NJDEP could issue a No Further Action determination.

We believe, conceptually, that this process could accelerate cleanups. However, the devil will be in the details. In order to really fix the backlog, minimizing NJDEP oversight is only part of the solution. The process by which NJDEP holds Licensed Professionals accountable must also be fixed. The overly prescriptive NJDEP Technical Regulations for Site Remediation must be made flexible and focus on performance objectives and achieving those objectives rather than prescribing every little detail along the way. This can and must be done without compromising any potential impacts to human health and the environment.

We hope NJDEP realizes that both issues need to be addressed before a Licensed Environmental Consultant program will accelerate sites being cleaned up and reduce NJDEP’s backlog.

Remedy Selection

The Department wants to be able to select the remedies for sites which are to be used for residential, child care or, educational purposes. We believe that, presently, the Department has substantial influence over the selection of remedies under current laws and regulations.

However, if the Department insists on the control of remedies for these types of sites, it must be careful how it does it. The Department should not discriminate against the safe and effective use of engineering controls which allows contamination to remain in place. Digging up significant amounts of soil and shipping it off to a landfill returns us to the dark ages of site remediation. However, in certain situations, such as single detached housing built on a contaminated site, an individual homeowner is ill equipped with demonstrating the continued effectiveness of that control. Therefore, in these cases “dig and haul” of some contamination may be appropriate.

The Department needs to be strategic in the application of this policy. The process by which a remedy is selected should not needlessly delay the actual remediation of a site. Indeed, given the current backlog at the Department, it is now common for the process to delay remediation for several years. Indeed, if the Department pursues this approach, it should identify what remedies it would approve so that the selected remedy will be known at the inception of a project and the studies and remediation can be directed to that remedy.

Finality and Protection Against Remedy Failure

Many of us in the cleanup industry have been pushing the Department to develop a strategy that would result in finality for a remediating party. At last, the Department appears to embrace this. The Department recommends that the never used “Remediation Guarantee Fund” (which has a seed of $5 million) be supplemented with fees generated by a 1% annual surcharge on financial assurances (approximately $2 million a year).

The Department further recommends that a 1% surcharge also be applied to those parties self guaranteeing their remediation (approximately $14 million a year). This fund could be used by any person who implements a permanent remedy which would cover on order of magnitude change in a soil cleanup standard or a change in land use. The Department believes this would significantly incentivize the use of permanent cleanups.

New Jersey needs to recycle its contaminated sites for productive use. Call it Brownfield Revitalization or Smart Growth, the truth is we have no other choice. The Department has recognized this is a timely, legitimate issue and seems to be serious about doing something about it. However, the regulated community needs to vigilantly watch the forthcoming flurry of legislation and regulation to assure it will accomplish a creditable goal of hastening the remediation of contaminated sites in our state.