January 1, 1900

by Nielsen V. Lewis

On November 25, 2002, NJDEP Commissioner Bradley M. Campbell issued Policy Directive 2002-003-Acceleration of Brownfield Cleanup and Reuse. To promote the cleanup and reuse of idle contaminated properties, the Policy Directive announces a number of new measures.

To reduce regulatory uncertainty and provide further protection against potential developer liability, the Directive:

1. Creates an Office of Brownfield Reuse in charge of informing the public and developers interested in brownfield reuse about pertinent programs;

2. Provides that NJDEP will not assert liability for damages or compensatory restoration at brownfield sites where there is historical natural resource injury;

3. Provides that NJDEP will issue No Further Action letters for remediated soils, notwithstanding that groundwater contamination may still remain, and in some cases will approve natural attenuation to remediate groundwater;

4. Commits the agency to developing appropriate prospective purchaser agreements to address any further potential liability concerns arising from ownership.

The Directive provides further that NJDEP:

1. Will establish an areawide brownfield development program to enable comprehensive planning for the cleanup and reuse of multiple brownfield sites through coordinated regulatory oversight;

2. Will encourage the use of insurance products, sureties and other financial and market instruments to manage and allocate financial risks associated with cleanups;

3. Will allow brownfield developers of single sites affected by groundwater contamination from multiple sources to resolve responsibility by contributing to a groundwater trust;

4. Will establish a "Cleanup Star" program, including a list of prequalified environmental consultants with which the agency will work to expedite the remediation process;

5. Will establish a Technical Review Panel to expedite the final cleanup decisions delayed by disagreements between brownfield developers and NJDEP case managers.

Finally, the Policy Directive seeks to expand the potential reuses of brownfield sites. The Office of Brownfield Reuse is directed to coordinate with other agencies, community and environmental leaders to identify opportunities for new reuses, including a focus on identifying brownfield sites that may be used for residential development projects.

Nielsen V. Lewis is a partner of the firm's Environmental Practice Group and a member of the Land Use Division. He concentrates his practice in the areas of environmental law, insurance law and land use, with an emphasis on prosecuting and defending complex environmental litigation.