§ 58:10C-27 — Direct oversight of remediation by department; conditions.

27. a. Except as provided in section 1 of P.L.2013, c.283 (C. 58:10C-27.1), and this section, the department shall undertake direct oversight of a remediation of a contaminated site under the following conditions: (1) the person responsible for conducting the remediation has a history of noncompliance with the laws concerning remediation, or any rule or regulation adopted pursuant thereto, that includes the issuance of at least two enforcement actions after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.) during any five-year period concerning a remediation; (2) the person responsible for conducting the remediation at a contaminated site has failed to meet a mandatory remediation timeframe or an expedited site specific timeframe adopted by the department pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28), including any extension thereof granted by the department, or a schedule established pursuant to an administrative order or court order; or (3) unless a longer period has been ordered by a court, the person responsible for conducting the remediation has, prior to the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), failed to complete the remedial investigation of the entire contaminated site 10 years after the discovery of a discharge at the site and has failed to complete the remedial investigation of the entire contaminated site within five years after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.). If a person responsible for conducting a remediation fails to meet the conditions established in paragraph (3) of this subsection, or a requirement established pursuant to subsection a. of section 1 of P.L.2013, c.283 (C.58:10C-27.1), the department shall not undertake direct oversight of the contaminated site if the person demonstrates, and the department finds, that: (1) the person was unable to meet the applicable timeframe because the person was unable to enter the contaminated site because the person does not own the property, and the person took all appropriate and timely action pursuant to section 40 of P.L.1993, c.139 (C.58:10B-16) prior to the applicable timeframe; or (2) the contaminated site is subject to federal oversight, the person has made timely submissions to the department, and the person was unable to meet the applicable timeframe due to the performance of additional review by the department pursuant to subsection c. of section 21 of P.L.2009, c.60 (C.58:10C-21). As used in this subsection, "enforcement action" means an administrative order, a notice of civil administrative penalty, or a court order. b. The department may undertake direct oversight of a remediation of a contaminated site under the following conditions: (1) the contamination at the site includes chromate chemical production waste; (2) the department determines that more than one environmentally sensitive natural resource has been injured by contamination from the site; (3) the site has contributed to sediments contaminated by polychlorinated biphenyl, mercury, arsenic, or dioxin in a surface water body; or (4) the site is ranked by the department in the category requiring the highest priority pursuant to the ranking system developed pursuant to section 2 of P.L.1982, c.202 (C.58:10-23.16). c. For any site subject to direct oversight by the department pursuant to this section: (1) the department shall review each document submitted by a licensed site remediation professional and shall approve or deny the submission; (2) a feasibility study shall be performed and submitted to the department for approval; (3) the department shall select the remedial action for the site; (4) the person responsible for conducting the remediation shall establish a remediation funding source other than a self-guarantee pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3) in the amount of the estimated cost of the remediation; (5) all disbursements of funds from the remediation funding source shall require prior approval by the department; (6) all submissions prepared by the licensed site remediation professional concerning the remediation required by the department shall be provided simultaneously to the department and the person responsible for conducting the remediation; and (7) the person responsible for conducting the remediation shall implement a public participation plan approved by the department to solicit public comment from the members of the surrounding community concerning the remediation of the site. d. The department shall issue guidelines establishing specific criteria for the conditions under which a site may be subject to direct oversight pursuant to subsection b. of this section. e. (1) Any oversight procedure, remedy, or other obligation in P.L.2009, c.60 (C.58:10C-1 et al.) shall not affect a remediation conducted pursuant to and in compliance with a settlement of litigation to which the department is a party if the settlement (a) occurred prior to the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), or (b) is a settlement of litigation pending on the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.). (2) For any litigation pending or settled on the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), concerning a remediation performed pursuant to the "Resource Conservation and Recovery Act," 42 U.S.C. s.6921 et seq., nothing in P.L.2009, c.60 (C.58:10C-1 et al.) shall affect an oversight procedure, remedy, or other obligation imposed by a federal administrative order or federal court order. f. When a contaminated site is subject to direct oversight pursuant to this section, the requirements of direct oversight shall run with the site, regardless of who owns the property, and regardless of whether there is a transfer of ownership of the property. g. (1) The department may modify the direct oversight requirements of subsection c. of this section for a contaminated site if: (a) the person responsible for conducting the remediation demonstrates financial hardship that prevents the performance of the remediation due to the imposition of direct oversight pursuant to this section; or (b) there is a public emergency, as declared by the Governor or the President of the United States, or an official authorized to act on their behalf, that resulted in a delay in meeting the mandatory or expedited site-specific timeframe or other condition that triggered direct oversight. (2) The department may modify the direct oversight requirements of subsection c. of this section for a contaminated site if the department makes a written determination that the modification is in the public interest and protective of the public health and safety and the environment. At least 60 days prior to making a modification pursuant to this paragraph, the department shall publish its written determination and the proposed modification to the requirements of direct oversight, including the reasons for its determination, on the department's Internet website. The department shall solicit and accept public comments on the proposed modification for a period of at least 30 days after the date of publication. The department shall consider the public comments received during the comment period prior to making a modification pursuant to this paragraph. (3) The department may, prior to a change in ownership of a contaminated site, enter into an administrative consent order with the prospective purchaser of the contaminated site providing for the modification of any or all of the direct oversight requirements of subsection c. of this section for the contaminated site. The department shall not enter into an administrative consent order pursuant to this paragraph with any person who: (a) has discharged a hazardous substance at the contaminated site, is in any way responsible for a hazardous substance at the site, or is otherwise liable for cleanup and removal costs at the site; (b) has owned or operated the contaminated site; or (c) is a predecessor, successor, subsidiary, partner, shareholder, assign, trustee in bankruptcy, responsible corporate official, or receiver appointed pursuant to a proceeding in law or equity, to any person described in subparagraphs (a) and (b) above. (4) The department may reinstate any or all of the direct oversight requirements that it modifies pursuant to paragraph (1), (2), or (3) of this subsection if, after the modification, the department finds that the person responsible for conducting the remediation has failed to comply with any applicable timeframe, administrative consent order modifying the requirements of direct oversight, or any law, rule, or regulation concerning the remediation of contaminated sites. L.2009, c.60, s.27; amended 2013, c.283, s.2; 2019, c.263, s.26.