NJ Legislation Could Lead to Stricter Brownfield Project Controls

January 16, 2006
by BRUCE KATCHER
Client Alert Newsletter Forecast 2007

Legislative action promises to have a significant impact on the New Jersey Department of Environmental Protection ("NJDEP") Site Remediation Program in 2007. The first bill enacted in 2007 grew out of mercury contamination discovered at a child care facility on the site of a former thermometer manufacturer. The law prohibits issuance of a local construction permit for a daycare center or educational facility to be located at a former industrial or otherwise environmentally suspect property until the facility documents NJDEP approval of a remedial action workplan or receipt of a no further action letter. Further, an occupancy permit cannot be issued until the facility obtains both a certification from the Department of Human and Senior Services ("DHSS") that it meets new maximum contaminant levels for building interiors and a NJDEP no further action letter.

The DHSS indoor standards, to be adopted within the next year, will be controversial and may prompt calls for similar standards in residential or commercial development contexts. NJDEP will also seek additional legislative authority to tighten existing restrictions and assert better oversight of site cleanup. For example, the agency wants greater authority to ensure monitoring and maintenance of engineering and institutional controls (e.g., caps and deed notices), including possibly imposing financial assurance requirements. NJDEP also wants more authority to require permanent remedies in high-risk situations, e.g., limiting engineering and institutional controls for residential projects and requiring more stringent cleanup levels and permanent remedies for certain acutely hazardous contaminants.