N.J. Admin. Code § 7:26C-5.2

Current through Register Vol. 56, No. 9, May 6, 2024

Section 7:26C-5.2 - Establishing a remediation funding source and financial assurance

(a) Except provided in (b), below, the following persons responsible for conducting the remediation shall establish and maintain a remediation funding source pursuant to this subchapter:

1. The owner or operator of an industrial establishment or any other person required to perform remediation activities pursuant to the Industrial Site Recovery Act (ISRA), 13:1K-6 et seq.;

2. A person liable for cleanup and removal costs pursuant to the Spill Act, N.J.S.A. 58:10-23.1 1 et seq., if:

i. The Department has issued a Spill Act directive to that person;

ii. A State agency has issued an order to that person; or

iii. That person has entered into an administrative consent order with a State Agency; and

3. A person who has been ordered by a court to clean up and remove a discharge pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.1 1 et seq.

(b) The following persons are not required to establish a remediation funding source pursuant to this subchapter:

1. A person who performs a remediation in an environmental opportunity zone;

2. A person who uses an innovative remedial action technology, provided that the exemption from the requirement to establish and maintain a remediation funding source shall only apply to the cost of the remediation involving the innovative technology;

3. A person who implements an unrestricted use remedial action or a limited restricted use remedial action in a timely manner for all or part of a remedial action, provided that the exemption from the requirement to establish and maintain a remediation funding source shall only apply to the cost of the remediation involving the unrestricted use remedial action or the limited restricted use remedial action;

4. A government entity;

5. A person who undertakes a remediation at their primary or secondary residence;

6. The owner or operator of a child care center licensed pursuant to 30:5B-1 et seq. who performs a remediation at the licensed child care center; or

7. The person responsible for conducting a remediation at a public school or private school as defined in 18A:1-1, or a charter school established pursuant to 18A:36A-1 et seq.

(c) Except as provided in (d) below, the person responsible for conducting the remediation who is implementing an engineering control as part of a remedial action shall establish and maintain financial assurance pursuant to this subchapter.

(d) The owner or operator of a small business and the persons listed at (b)4 through 7 above is not required to establish financial assurance pursuant to this subchapter.

(e) Any person who is required to establish a remediation funding source or financial assurance shall establish and maintain a remediation funding source or financial assurance in an amount specified in 7:26C-5.3, until:

1. For a remediation funding source, the licensed site remediation professional issues an unrestricted use or limited restricted use response action outcome for the site;

2. For financial assurance, the Department either:

i. Terminates the remedial action permit, pursuant to 7:26C-7.13; or

ii. For a statutory permittee only, transfers the remedial action permit, pursuant to 7:26C-7.11.

(f) Any person required to establish a remediation funding source or financial assurance that elects to apply for a loan and/or a grant from the Hazardous Discharge Site Remediation Fund to satisfy all or a portion of the remediation funding source or financial assurance requirements shall submit all the information required in 7:26C-11.2 to the Department.

(g) In the event the New Jersey Economic Development Authority denies the application for a loan and/or grant from the Hazardous Discharge Site Remediation Fund, the person required to establish a remediation funding source or financial assurance shall establish the full amount of the remediation funding source or the financial assurance in accordance with this subchapter within 14 days after the person's receipt of notice from the New Jersey Economic Development Authority that the application has been denied.

(h) Except as provided in (k) below, the person responsible for conducting the remediation who is required to establish and maintain a remediation funding source pursuant to this subchapter may use any one or any combination of the following financial mechanisms:

1. A remediation trust fund in accordance with 7:26C-5.4;

2. An environmental insurance policy in accordance with 7:26C-5.5;

3. A line of credit in accordance with 7:26C-5.6;

4. A letter of credit in accordance with 7:26C-5.7;

5. A loan or a grant in accordance with N.J.A.C. 7:26C-11 and 12; or

6. A self-guarantee in accordance with 7:26C-5.8.

(i) Any person may establish, on behalf of any person required to establish a remediation funding source or financial assurance, any of the mechanisms listed at (h) above except for a self-guarantee.

(j) The person responsible for conducting the remediation may use any one or any combination of the financial mechanisms listed in (h)1 through 5 above to satisfy the financial assurance requirement in N.J.A.C. 7:26C-5.3. The financial mechanism listed at (h)6 above shall not be used to satisfy the financial assurance requirement in N.J.A.C. 7:26C-5.3.

(k) Notwithstanding (h) or (j) above, a person responsible for conducting the remediation that is subject to direct oversight pursuant to 58:10C-27 shall establish and maintain a remediation trust fund in accordance with N.J.A.C. 7:26C-5.4.

(l) The person responsible for conducting the remediation required to establish and maintain a remediation funding source or financial assurance shall submit evidence of the establishment of a remediation funding source or financial assurance to the Department no later than the following deadlines as applicable, unless the Department approves an extension of that deadline:

1. The owner or operator of an industrial establishment or any other person required to perform remediation pursuant to ISRA, N.J.S.A. 13:1K-6et seq., shall submit evidence of the remediation funding source:

i. No more than 14 days after either Department approval of a remedial action workplan or Department receipt of a remedial action workplan certified by a licensed site remediation professional; or

ii. Upon submission to the Department of a remediation certification pursuant to N.J.A.C. 7:26B-3.3(c).

2. A discharger, a person in any way responsible for a hazardous substance, or a person otherwise liable for cleanup and removal costs pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.1 1 et seq., shall submit evidence of the remediation funding source according to the following:

i. As required by a directive the Department issues pursuant to the Spill Compensation and Control Act, at N.J.S.A. 58:10-23.1 1f;

ii. As required by an order the Department issues pursuant to the Spill Compensation and Control Act, at N.J.S.A. 58:10-23.1 1u, or the Water Pollution Control Act, 58:10A-10;

iii. Along with signed copies of an administrative consent order; or

iv. As required by a court;

3. A person responsible for conducting the remediation shall submit evidence of a remediation trust fund established in accordance with 7:26C-5.4, no later than 30 days after:

i. The occurrence of any of the events listed at 7:26C-14.2; or

ii. Receipt of notice from the Department pursuant to 7:26C-14.3(c); and

4. The person responsible for conducting the remediation shall submit evidence of financial assurance as part of a remedial action permit application required pursuant to 7:26C-7.5.

N.J. Admin. Code § 7:26C-5.2

Amended by 50 N.J.R. 1715(b), effective 8/6/2018