ENVIRONMENTAL BUSINESS Key LSRP and Brownfield Legal Issues in New Jersey NJDEP Commissioner Bob Martin has been focused on supporting the LSRP program, C OMPILED BY M ILES Z. E PSTEIN and the evolution of state environmental rules and regulations has raised some legal questions. E DITOR , COMMERCE petroleum hydrocarbons, saving a trans- source exists; and certification that any A CCORDING TO THE CONFERENCE action and significantly reducing our transferee has been notified of remedia- of Mayors, the business case client’s costs. Every project warrants tion. ISRA provides that the NJDEP shall for brownfield redevelopment some type of knowledgeable advocacy grant the RIPW when these four includes increasing city tax bases, creat- on behalf of the client, which is wel- requirements are satisfied. We held dis- ing new employment, revitalizing neigh- comed by LSRPs who are still navigating cussions with NJDEP officials who ulti- borhoods and protecting the environ- through the unfamiliar seas of New mately granted our client’s RIPW with- ment. COMMERCE asked some of New Jersey’s new site remediation program. out this portion of the certification. Jersey’s top environmental lawyers to highlight some of the key legal issues Connell Foley LLP Day Pitney LLP relating to Licensed Site Remediation By Steve Barnett, Esq., By Joshua J. Professionals (LSRPs) and brownfields. Partner VandenHengel, Esq., Environmental Associate Cole Schotz P.C. We represented the By Richard J. Ericsson, Esq., buyer of an industrial Day Pitney recently Member property who objected to an NJDEP helped a client and its LSRP obtain application form. Specifically, the appli- access to several neighboring properties Every day, our environ- cation for an Industrial Site Recovery Act to perform off-site vapor intrusion and mental attorneys work (ISRA) Remediation in Progress Waiver groundwater sampling activities within hand in hand with LSRPs and environ- (RIPW) asks the applicant to certify that the timeframes required by NJDEP regu- mental consultants to solve issues that it will take over the lead case and post lations. The site under investigation arise in every environmental project, financial assurance if the lead case “falls was a former manufacturing facility regardless of size, saving time and out of compliance with the remediation surrounded by other commercial and project costs. This dynamic has become schedule or is unable to maintain the industrial business establishments. In the much more important as LSRPs have required remediation funding source.” past, the NJDEP would often issue coop- taken on the responsibility of acting This could cause repercussions, includ- eration orders to neighboring property more as regulator than consultant, but ing additional requirements to satisfy owners if an off-site investigation was without the support of their own in- investors, lenders, insurers and others necessary to delineate the extent of house counsel to help them interpret involved in this and related transactions. contamination or its potential impact on the often vague statutes, complex regu- Interestingly, neither ISRA nor NJDEP surrounding properties. However, under lations and ever-changing guidance doc- regulations contain this requirement. the Site Remediation Reform Act, the uments issued by the NJDEP. We recently Additionally, the applicant/buyer has supervision of a site’s remediation has strategized with an LSRP to interpret no way to know the lead case schedule, been delegated to the LSRP and the the state’s complex remedial financial and the certification does not allow the NJDEP is no longer in the business of assurance obligations and convince lead case to cure any issue before the compelling property owners to grant NJDEP of our client’s position, resulting buyer must take over. ISRA sets forth access to their properties. Essentially, in significant savings to the project. Our four requirements: submission of a the LSRP has stepped into the shoes of environmental lawyers also just worked General Information Notice; certification the NJDEP, but without the authority with the LSRPs for both our client (the that there has been no discharge during to compel access to off-site properties, seller) and the buyer to develop success- the applicant’s ownership or operation which is often a critical component in a ful arguments regarding the NJDEP’s or that any has been remediated; certifi- timely investigation of a site. After sev- ambiguous guidance for remediation of cation that a remediation funding eral unsuccessful attempts to negotiate continued on page 38 COMMERCE • www.commercemagnj.com 36
Recommend
More recommend