By Joshua Burd
A nearly 10-year-old law that placed environmental cleanups in the hands of private-sector experts has been hailed as a triumph and a sea change for the state’s development community.
But the Smart Growth Economic Development Coalition says there is still much room for improvement.
As part of the group’s original legislative agenda in 2008, the creation of the Licensed Site Remediation Professional program has helped ease the state’s backlog of contaminated sites. Essentially, the law allowed the Department of Environmental Protection to hand off thousands of cases to a pool of licensed consultants, while still maintaining the agency’s cleanup standards.
It also ensured that DEP kept final authority over remediation projects, but industry advocates say the process continues to lag on the back end. Irene Kropp of Langan Engineering & Environmental Services pointed to a step known as a remedial action permit, which essentially dictates the monitoring and reporting requirements for a site going forward.
As the last step before final DEP approval, she said, it can still take between 120 days and a year.
“What they’re doing is trying to get that last bite at the apple,” said Kropp, a former DEP deputy commissioner who spent 30 years with the agency. “They’re letting the LSRPs take it all the way to the very end — and then they’re taking this re-review process under the remedial action permits and opening up all those millions of documents.”
She noted that the LSRP program is premised on the idea that consultants run the risk of losing their licenses and livelihoods if they shirk their responsibilities during the cleanup. According to the coalition, that trust and oversight should be extended to the monitoring phase going forward, especially since the law gives the DEP another three years to audit the project.
“They can always go back in,” said Kropp, a senior environmental consultant with Langan. “So there’s this reoccurring ability to go after somebody if they really, truly need to, but they’re doing it way too up front and it’s holding up deals and it’s holding up construction.”
Expanding the LSRP program is among the major recommendations by the coalition’s regulatory committee. Kropp, who chaired the committee, said “the success of the program speaks for itself,” noting that it has helped clear 10,000 cases for the DEP.
But she and her fellow coalition members feel the state remains overregulated.
For instance, they say the landmark state and federal cleanup laws of the 1980s were meant to target sites containing hazardous waste discharge. Yet over time, New Jersey’s site remediation program has come to include so-called non-discharge conditions — such as historic fill, the presence of historic pesticides and herbicides and runoffs from parking lots, highways and railroads.
Kropp said those conditions can be found across large sections of the state’s urban areas, but noted that the DEP has had to be selective in deciding which non-discharge cases and which developers to regulate. The result has been an uneven playing field.
As a solution, the coalition proposes shifting the burden to an agency such as the Department of Community Affairs, which could use its oversight of construction to offer more universal guidelines on non-discharge conditions. That would create uniformity for conditions that simply stem from decades of development and industry, Kropp said, while ensuring the DEP and the federal regulators can still take action on sites with large, hazardous spills.
“That’s one of the really big debates that we want to have going forward,” Kropp said. “It would take legislation. It will be uncomfortable. People want to be protected — and they should be protected — but there might be other ways through DCA, building codes and, generally, how you handle construction to protect people, but not put all these additional burdens on them.”
Among several other recommendations, Kropp’s committee believes there should be additional relief to developers that can be counted as “innocent purchasers.” She pointed to regulations provided by neighboring states and under the Environmental Protection Agency, which gives those purchasers more flexibility when it comes to their cleanup requirements.
“All we’re saying to the DEP and the state of New Jersey right now is: Look at the other programs around us — what EPA is doing, what New York is doing, what other states are doing — so that we are on par with our neighboring states and we’re not being too restrictive,” she said. “We always want to protect the public and the environment, but if other states can do it, we can do it, too, so let’s not be the ones that are holding up redevelopment in the state of New Jersey.”
Financing: Expand the instruments that can be used for remedial funding sources and financial assurances to include surety bonds. Base the test for self-guarantees on liquidity, not tangible assets. Expand the 1 percent surcharge to self-guarantees, rather than just the other instruments, to provide DEP with money to close cases when a person conducting remediation cannot complete the project. Do not require financial assurances for remedial action permits.
Direct oversight: Require DEP to notify an entity when it is in direct oversight and give the agency discretion or flexibility to remove parties from direct oversight.
Greater flexibility: Allow corrective action to be based on actual risk to the surrounding community, rather than perceived risk. Incorporate green and sustainable concepts in the remedial action process, providing greater flexibility for LRSPs and redevelopers.
Use of fill: Require DEP to loosen its policies on the use of alternative, slightly contaminated fill and dredge, thereby creating more supply for developers and freeing up the use of hard-to-find, clean fill for day care sites, playgrounds and schools.
Off-load more responsibilities: Expand the use of licensed site professionals such as LSRPs or professional engineers to handle approval processes currently handled by the DEP, freeing up agency staff to focus on more important priorities and expedite approvals, while still preserving the agency’s right to audit projects.
Banking program: Improve and expand the current banking program for wetlands to include threatened and endangered species corridors, nutrient sequestering, coastal resiliency and similar programs so that it is easier for developers to use the program.
Fishing licenses: Expand the use of fishing licenses so that New Jersey has the money necessary to fund science and enforcement programs related to fresh and marine fishing, bringing the state closer to neighboring states.