July 26, 2007

VIA E-MAIL

Attn: DEP Docket No. #07-07-04/46
New Jersey Department of Environmental Protection
Ms. Leslie Ledogar, Esq.
Office of Legal Affairs
P.O. Box 402
401 East State Street, 4th Floor
Trenton, New Jersey 08625-0402

Re: DEP Docket No. #07-07-04/46
Comments on the Proposed Remediation Standards, N.J.A.C. 7:26D and Technical Requirements for Site Remediation, N.J.A.C. 7:26E-1.3(d), 1.13.

Dear Ms. Ledogar:

I am writing on behalf of the New Jersey Business and Industry Association (NJBIA) in response to the above-referenced proposal.  NJBIA represents over 23,600 businesses in the State of New Jersey, many of which are impacted by the proposed Remediation Standards & Technical Requirements for Site Remediation.  As the largest state-level employer association in the nation, we appreciate this opportunity to share our thoughts with the department. 

NJBIA is a member of the Site Remediation Industry Network (SRIN), which is a coalition of more than 30 companies and associations that address contemporary issues pertaining to the Site Remediation Program (SRP) of New Jersey.  SRIN has developed comprehensive comments on this proposal which embody our concerns.  NJBIA urges the Department to consider the concerns enumerated within the SRIN document, which is attached.

NJBIA also works closely with the Technical Regulations Advisory Coalition, commonly referred to as TRAC.  TRAC is an association of environmental professionals who have substantial experience investigating and remediating sites in New Jersey.  TRAC has also submitted comprehensive comments on this proposal and NJBIA supports the comments developed by TRAC.

While the attached SRIN comments encompass all of our concerns, I would like to respectfully highlight a few major issues NJBIA has with this proposal.   Specifically, NJBIA believes that: 1) the department went beyond its legislative authority in developing these standards; 2) the department developed standards that are overly stringent, and based upon redundant and sometimes unreasonable assumptions; and, 3) the proposal could ultimately devastate the viability of New Jersey’s Site Remediation Program (SRP) as we know it.

1) Legislative Authority

The State of New Jersey has thousands of contaminated sites located within its borders.  Over the past three decades, the Legislature has taken steps in an effort to address this problem through the enactment of the Spill Compensation and Control Act, the Environmental Cleanup Responsibility Act (ECRA), Industrial Site Recovery Act (ISRA), and the Brownfields and Contaminated Site Remediation Act, among others.

Over time, as our understanding of environmental policy grew, the Legislature attempted to punish those responsible for contaminating properties, compel those parties to remediate their property, and encourage third-party cleanups through a variety of incentives.  At the same time, the Legislature established boundaries within which the department could develop standards for site remediation.

These statutory boundaries require:

a) that the soil remediation health risk standards be set at a level of an additional cancer risk of one in a million;
b) the formation of, and recommendations by, an Environmental Advisory Task Force prior to the establishment of such standards;
c) any such standards to be based upon generally accepted and peer reviewed scientific data; and,
d) the department’s standards to be based upon reasonable assumptions about exposure. 

Respectfully, NJBIA believes that the DEP did not observe any of the statutory mandates listed above.

2) Unnecessarily stringent standards based upon overly conservative assumptions

NJBIA believes that the department should maintain a certain level of flexibility in the cleanup process in order to allow for alternative cleanup methods that protect the environment and at the same time, keep the cleanup process moving.  Simply put, the goal should be to clean up as many sites as possible in a protective manner.  However, the proposed soil standards appear to do the opposite.

In this proposal, the department has established remediation standards that are unnecessarily strict, overly conservative, and basically eliminate any flexibility in the cleanup process.  NJBIA believes that this will have a devastating impact on NJ’s Site Remediation Program as we know it.

3)  These regulations will have a significant impact on SRP’s role in New Jersey’s economy

The State is facing a financial crisis year after year. Municipalities struggle to find ratables.  New Jersey businesses struggle to compete not only with border-states such as New York, Delaware and Pennsylvania, but also nationally and globally.  As stated earlier, New Jersey has thousands of contaminated sites that can either lie fallow or be brought back to productive use.  These sites can play an integral role in the growth of New Jersey’s economy.

NJBIA believes that it is incumbent upon the DEP to couple environmental protection with the economic reality facing our State.  In doing so, the department can establish standards that protect human health and the environment while at the same time, provide enough flexibility to the private sector to act as an incentive to bring these contaminated sites back into productive use.

In short, an extremely onerous program with stringent standards will only limit the role these sites can play in:
a) Stimulating our economy;
b) Providing needed ratables for cash strapped municipalities; and,
c) Ultimately, limiting the exposure to the public.

Conclusion

NJBIA supports the State’s goal of developing a Site Remediation Program that provides predictability in the cleanup process, and protection of our citizens and the environment.  However, NJBIA believes that the standards established in this proposal will negatively impact site remediation throughout the State.  The assumptions used as the basis for these standards are unnecessarily conservative, and will add additional and unwarranted burdens to those performing remediations, whether they are responsible parties or developers.  NJBIA respectfully requests the department to either withdraw this proposal, or make the changes suggested in the attached SRIN document.

As stated above, NJBIA appreciates the opportunity to express our concerns on this proposal, and our support for the comments prepared by both SRIN and TRAC.  If you have any questions or if you need additional information, please contact me at (609) 393-7707, extension 236.

Sincerely,

David H. Brogan
Vice President, Environmental Policy
New Jersey Business and Industry Association