DEP dons blinders on industrial site clean-up
Retreats from Real Estate Transaction as Leverage to drive Toxic Remediation
DEP Commissioner Jackson is under fire from the business and environmental community.Defending budget cuts and the policy agenda of the Corzine Governor’s Office is taking its toll.
Citing “budgetary constraints” the New Jersey Department of Environmental Protection quietly announced last week that, beginning tomorrow, it will no longer accept notifications of real estate transactions involving former industrial sites to ensure that they contain no buried hazardous wastes. This is the first in a series of steps toward abandoning real estate transactions as a lever for pollution control and marks a reversal in decades of state policy, according to Public Employees for Environmental Responsibility (PEER).
Under a nationally recognized New Jersey law known as the “Industrial Site Recovery Act” (ISRA), the New Jersey Department of Environmental Protection (DEP) must approve a clean-up plan before certain industrial properties may be sold. Since 1983, DEP has overseen the key determination of whether an industrial facility must address hazardous pollution prior to sale or transfer to unsuspecting buyers.
Last week, DEP posted an ISRA notice on its website stating:
“Due to budgetary constraints and a focus on required services, the Department’s Site Remediation Program will discontinue the issuance of applicability determinations pursuant to ISRA on April 30, 2008. Applications for applicability determinations (more commonly known as LNA’s) received after April 30th will be returned unprocessed.”
“Once a national leader in environmental protection, New Jersey is now engaged in a frantic race to the bottom,” stated New Jersey PEER Director Bill Wolfe, pointing to a number of other fiscal-inspired environmental rollbacks in recent weeks. “This short-sighted economy darkens our state’s investment climate as purchasers of former industrial land will be less certain about what is hidden on sites they may want to develop.”
The “poster child” for the value of ISRA is the failed cleanup at the W.R .Grace asbestos facility in Hamilton Township, Mercer County. In the W.R. Grace case, the company submitted a fraudulent ISRA certification to DEP, which rubber stamped that certification without taking samples at the site. An outraged community later learned of high levels of asbestos that was illegally disposed on site. This prompted a federal Superfund emergency removal of contaminated soil, civil lawsuits, criminal investigations and legislative oversight hearings during 2005.
“Despite these recent object lessons, this abdication by DEP leaves the key regulatory decision as to whether ISRA even applies totally in private sector hands,” added Wolfe, noting that industrial landowners have a distinct economic incentive to avoid ISRA oversight in order to quickly close real estate deals. “Because DEP has no field staff or ability to otherwise monitor compliance with the ISRA laws, this DEP decision effectively amounts to a de facto privatization of the entire ISRA program.”
Considered the cornerstone of New Jersey’s toxic site clean-up strategy, the ISRA law requires industrial establishments that plan to close or transfer ownership to first notify DEP. After that notice, DEP must issue either a “No Further Action” letter or approval of a clean-up plan for contamination found on site as a precondition for ownership transfer. The state employs a similar approach under the “Private Well Testing Act” to make sure that before a home is sold the well is tested and, if pollution is discovered, there is effective treatment or clean-up incorporated into the contract of sale.
The issue of toxic protection is paramount in New Jersey which is the most densely populated state in the nation, and also has the highest number of identified contaminated waste sites per capita.
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See the DEP notice that ISRA applicability services have been discontinued
http://www.nj.gov/dep/srp/isra/announce200804.htm
Find out about the ISRA program
http://www.nj.gov/dep/srp/isra/isragide.htm
Read about the W.R. Grace asbestos EPA clean-up in Hamilton Township
http://www.epa.gov/region2/superfund/removal/hamilton/
Review DEP admission that industry self-reporting does not work
http://www.peer.org/news/news_id.php?row_id=932
New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability.
Not a problem. Applicability determinations are only used to confirm that the rule does or doesn’t apply . Doesn’t answer the question of whether a site is dirty or clean.
The ISRA Rules have largely outlived their usefulness. Over the past 20+ years, it has become standard practice (both in and out of NJ) for buyers and lenders to perform due diligence and seek cleanups where required during most real estate transactions. DEP’s active participation in each industrial real estate transaction is unnecessary and counter-productive. Other states have not adopted this program, which has become famous for holding up real estate transactions for years and further complicating cleanups with red tape, and cost overruns.
DEP just needs to provide clear guidance regarding how clean is clean, then get out of the way and let the private sector clean it up, as is done in the other states.
Smaller state payroll, faster cleanups – that should sound good to most. NJ needs to take a very hard look at the fat , waste, and red tape in DEP.
greenspace – disagree strongly.
When you sell or buy a home, you hire an engineer to do an inspection. That engineer represents your interests and assures that any problems are addressed in the contract between buyer and seller.
Under ISRA, DEP is functionally the public’s engineer – assuring that industrail toxic pollution be cleaned up as part of the sale.
Question – do you represent the legal tender version of green or the chlorophyll kind?