The February 1996 Environmental Update discussed three brownfields bills that were pending in the New Jersey Legislature. Those three bills (S-39, S-1539 and A-2250), as well as an additional bill (S-1815), have now been combined by the Senate into a single substitute bill, designated S-39 and entitled the "Brownfields and Contaminated Site Remediation Act." The substitute bill has received widespread support from the business and environmental communities, and on June 16 it passed by a vote of 37-0 in the Senate. It was sent to the Assembly on that same date where it was referred to the Assembly Appropriations Committee, but no action was taken in the committee prior to the Legislature's summer recess.
Key provisions of the proposed act provide financial, liability and technical relief to those who undertake remediation and redevelopment of abandoned, contaminated industrial sites. Additional provisions provide for institutional coordination and promotion of brownfields activities in the state via a Brownfields Redevelopment Task Force and an expanded role for the County Improvement Authorities.
Financial incentives in the current version include an extension from 10 years to 15 years for property tax exemptions in Environmental Opportunity Zones for those employing permanent cleanup remedies. Restrictions that would have required the sites to be developed only for industrial or commercial purposes have now been eliminated. Consequently, sites also may be targeted for residential or other productive use and still remain eligible for the tax exemption.
Partial reimbursement of up to 75% of cleanup costs would be possible through negotiated redevelopment agreements between the developer and the Commission of Commerce and Economic Development. This would be funded from the dedication of 50% of any sales tax collected from any new retail establishment built on the remediated site. In addition, matching grants of 25% of the cost of the remedy, up to a maximum of $100,000, would be available for implementation of a permanent remedy and/or for use of innovative technology for persons having less than $2 million in assets. Additionally, no remediation funding source would be required for those employing innovative technologies.
The Spill Act would be amended such that New Jersey Department of Environmental Protection ("NJDEP") oversight fees for reviewing a remediation would not include NJDEP's indirect administrative costs.
Innocent Purchaser liability protection would be expanded from that currently afforded under existing statutes to include all contaminated properties throughout the State, not just those in urban areas. The protection would apply to persons who unknowingly acquire contaminated property after proper due diligence or persons who knowingly acquire contaminated property and perform required remediation. The protection would remain even if additional contamination were discovered or if standards changed.
A person who cleaned up a site and received a "no further action" letter from NJDEP would be entitled to receive a covenant not to sue from the State. Additional remediation would not be required at the site if a permanent remedy were employed or as long as any required engineering or institutional controls were maintained. Subsequent owners, lessees and operators would be eligible for the same protection.
A responsible party would be liable for any necessary additional remediation if standards or conditions changed such that the conditions were no longer considered protective of human health or the environment. If the site were considered safe because the contamination was under a building, a cap or similar control mechanism, however, the responsible party would be liable only for filing the required deed notice.
Numerous technical issues addressed in S-39 allow for greater flexibility in the choice of a remedial action as well as a reduction in the amount of agency approval and over-sight necessary in many circumstances.
While many expect easy passage of this bill in the Assembly once the Legislature reconvenes in the fall, there are those who feel the Assembly may prefer a similar bill sponsored by Assemblyman DiGaetano, A-2724, the "Brownfields Redevelopment Act." A-2724 was introduced in February and is now in the Appropriations Committee along with S-39. It is possible yet another compromise or substitute bill will emerge.
