On June 27, 1996, Assemblyman Richard Bagger (R-22d District) introduced Assembly Bill 2250 that would provide sure liability protection to those who purchase previously contaminated property. The 1993 amendments to the Spill Act authorized remediation of properties, under certain circumstances, to the less stringent "non-residential" standards, thereby permitting responsible parties to leave some contamination on site. Assembly Bill 2250 would amend Section 8 of the Spill Act to exclude from liability subsequent purchasers of land, who are not otherwise liable, when a "No Further Action" letter (an "NFA") had been issued before the person became an owner of the land. In other words, if the property had been remediated to the satisfaction of the NJDEP, including non-residential standards, then a subsequent landowner could not be held accountable for any contamination that remained on the property after the issuance of the NFA. The bill, however, requires the subsequent purchaser to maintain all institutional and engineering controls, such as deed restrictions and caps, as may be required by the NJDEP to reduce the risk of exposure to contaminants left behind.
Although such liability protection was considered by the Legislature while it was debating New Jersey's brownfields redevelopment legislation, it was excluded from the final Brownfields law that was enacted in January 1996. If this current bill is adopted, the resulting liability protection would provide prospective purchasers with an additional incentive to buy and develop brownfield properties beyond the financial ones available through the Environmental Opportunity Zone Act. Because the amendment only applies to properties that have received an NFA, however, the bill would not provide protection to prospective purchasers of property where a remediation program has not been completed.
We expect that the Legislature will debate the proposed amendments to the Spill Act over the next several months. Please contact us if you would like to receive a copy of Assembly Bill 2250.