In 2003, the National Conference of Commissioners on Uniform State Laws (NCCUSL) drafted and approved the Uniform Environmental Covenants Act (UECA). UECA was enacted to develop a system of recording environmental covenants for contaminated real properties known as Brownfields, when such properties are remediated to a level determined by their use but retain contamination in excess of the level that would permit unrestricted use of the property. Uniform Environmental Covenants Act, N.J. L. Revision Common Reports 1, 2 (2009). Since UECA does not supplant the remediation standards or methods imposed by the regulatory agencies, it is therefore, a complement to the already existing regulatory tools.
Although, New Jersey lacks a statute that provides for an environmental covenant per se, it has significant legislation in place to regulate Brownfields and other contaminated properties. New Jersey adopted the Brownfield Act (Act) in 1993. N.J.S. 58:10B-1. The Act, which was amended in 1997 and 2002 regulates contaminated sites once used for commercial and industrial purposes but currently abandoned or underused in order to ensure protection to the public and the environment while promoting the cost effective cleanups and reuse of such properties. Id. The Act provides for financial incentives, remediation standards, liability protection and cleanup procedures for innocent parties who clean up Brownfields. Thus, the Act provides for the use of notice and institutional controls as part of the remediation of contaminated properties. Uniform Environmental Covenants Act, N.J. L. Revision Common Reports 1, 3 (2009).
The Act provides, in pertinent part:
when real property is either remediated to a nonresidential soil remediation standard, or engineering or institutional controls are used in lieu of remediation to an unrestricted standard, the Department of Environmental Protection (DEP) shall, as a condition of the use of the standard or control, require the recording of a notice indicating that contamination exists on the property at a level that may statutorily restrict certain uses of or aces to the property.N.J.S. 58:10B-13(a)(2).
The notice is recorded in the same manner as a deed and includes:
(1) Delineation of the use restrictions; Id.
(2) Description of all specific engineering or institutional controls; and Id.
(3) The property owner’s written consent to the notice. Id.
The notice of the existence of contaminants must be provided to the governing body of each municipality in which the property is located. N.J.S. 58:10B-13(a)(3). The Act also requires DEP to post signs at any site where access is restricted or where areas need to be maintained in a prescribed manner. N.J.S. 58:10B-13(a)(4). Therefore, while the Brownfield Act relies on police power for its enforcement, UECA gives this power to the private parties. The ability of parties other than the State to enforce environmental restrictions of Brownfields sites serves as an improvement to the law of New Jersey. Therefore, the New Jersey Law Revisions Commission recommended adding UECA to the New Jersey laws without displacing the Brownfield Act.
With this new change, the deed notice required by the Brownfield Act will serve as a restrictive covenant and allow enforcement by any person who is injured, or if the DEP fails to enforce the restrictions, by any person. Uniform Environmental Covenants Act, N.J. L. Revision Common Reports 1, 5 (2009). Thus, the amendments go further, in that any person whether or not a party to a restrictive covenant is given the power to enforce the restriction. N.J.S. 2A:35A-4. Also, if the DEP is acting on the problem, a private citizen must defer. N.J.S. 2A:35A-4.
Similar to the DEP’s use of independent business contractors to perform investigation and remediation, this is another aspect of New Jersey’s continuing approach to partnering with business to ameliorate environmental contamination.
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