NJ to Continue NRD Pursuit, Possibly Refine Cleanup Program

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

New Jersey's successful (in terms of monies collected and "in-kind" contributions of open space) natural resource damages ("NRD") program is likely to continue under the Corzine administration, although new New Jersey Department of Environmental Protection ("NJDEP") Commissioner Jackson has indicated that a reexamination of certain elements of the program may be in order (e.g., the Lower Passaic River case) and the long-promised rulemaking on groundwater NRDs may finally be forthcoming. The transition report made several troubling recommendations designed to foster more aggressive pursuit of NRDs (e.g., less reliance on in-kind settlements, expanding the Raritan and Delaware River initiatives, aggressive enforcement to avoid the expiration of the recently extended statute of limitations in June 2007).

Continued emphasis on the brownfields program as a top priority is expected as part of the Governor's smart growth initiatives and in light of the recently enacted legislation providing enhanced public funding; however, some reexamination will be in store for controversial projects such as Petty's Island in Pennsauken and the remediation of chromium sites in North Jersey. The growing movement to oppose the use of eminent domain may curtail some local redevelopment efforts. In a welcome move, the Commissioner will likely encourage greater cooperation between the land use and site remediation programs. Vapor intrusion issues will receive enhanced attention in light of the new vapor intrusion guidance issued in late 2005. Finally, in two inauspicious proposals for the site remediation program, the transition team suggested giving NJDEP the authority to select remedial actions (current law allows the remediator to select the remedy) and the enactment of a "Polluter Pays Act" to ban the use of public funds on non-emergency cleanups where a responsible party can be identified to pay for a protective cleanup.