In accordance with so-called "smart growth" principles, James E. McGreevey, since becoming Governor of the State of New Jersey, has taken a number of definitive steps to provide municipalities and the private sector with assistance in redeveloping contaminated properties.
On October 22, 2002, the Governor approved a bill (S-1181/A-2437), which amended the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1.1, et. seq., to include residential development within the scope of "redevelopment projects" eligible for reimbursement of "remediation costs" from the Brownfield Site Reimbursement Fund. See P.L. 2002, c. 87, codified at N.J.S.A. 58:10B-27, N.J.S.A. 58:10B-28 and N.J.S.A. 58:10B-30. The Brownfield Site Reimbursement Fund is a special fund administered by the Department of the Treasury, which is dedicated to reimbursing developers who have entered into redevelopment agreements with the State of New Jersey to clean up and rehabilitate contaminated sites for up to seventy-five percent (75%) of the costs of remediation. N.J.S.A. 58:10B-28; N.J.S.A. 58:10B-30. Developers are eligible to receive reimbursement "upon the commencement of a business operation, or the complete construction of one or more new residences, within a development project." N.J.S.A. 58:10B-28a. Under prior law, developers could receive reimbursement of remediation costs only for the clean up and rehabilitation of commercial, industrial and public properties.
On October 24, 2002, Governor McGreevey issued Executive Order No. 38, which ordered and directed state agencies to facilitate the redevelopment and reuse of contaminated properties through the establishment of certain policies and programs and regulatory reform. The complete text of Executive Order No. 38 was published on December 2, 2002, in the New Jersey Register. See 34 N.J.R. 4015. Since the issuance of this Executive Order, several of the Governor's directives have been implemented, such as the creation of pre-development funding opportunities for developers through the New Jersey Economic Development Authority. One such funding initiative is the Smart Growth Pre-development Funding Program, which provides developers with loans and loan guarantees for up to $1,000,000.00 for certain site preparation costs. Information about the Smart Growth Pre-development Funding Program and other financial assistance programs oriented towards redevelopment of brownfields is available on the New Jersey Economic Development Authority's website at www.njeda.com.
Another directive contained in Executive Order No. 38 is the promulgation of a comprehensive package of regulatory reforms, which will, among other things, increase the predictability of regulatory outcomes and facilitate smart growth. In this vein, the Department of Environmental Protection has made some modest efforts at changing policies and regulations to facilitate the purchase of contaminated properties and expedite project review. On February 3, 2003, the Department of Environmental Protection adopted revisions to the Technical Requirements for Site Remediation, which are published in the New Jersey Register. See 35 N.J.R. 710(a). One such change is a provision allowing a "prospective purchaser" of a contaminated site to close on the purchase thereof before it conducts a potable water investigation. Thereafter, the prospective purchaser has 30 calendar days to "commence" such investigation.
In the area of expediting project review, the Department of Environmental Protection has recently adopted a document review policy providing for the rejection of applications and supporting plans and reports for brownfields site investigation and remediation, which are "substandard". This new policy was announced by the Department of Environmental Protection in a news release, dated March 19, 2003, which is accessible on its website at www.state.nj.us/dep/. Theoretically, this streamlining of the process should expedite the review of applications and supporting documentation that substantially comply with applicable regulations.
Another potentially beneficial development is the creation of a technical dispute resolution process within the Department of Environmental Protection for resolution of site-specific disputes between case managers or project managers and persons or entities conducting regulated activities under either the Site Remediation Program or the Solid and Hazardous Waste Program. Under this new program a regulated party, after attempting to resolve a given dispute, may submit a written request to the Director of the Site Remediation Program or the Solid and Hazardous Waste Program, as applicable, asking that a Technical Review Panel be convened to review and decide the matter. The Department of Environmental Protection has developed a set of rules governing the technical review application process, which are available on its website at www.state.nj.us/dep/.
Finally, one of the more recent developments on the legislative front has been the allocation of $40,000,000.00 for the Hazardous Discharge Site Remediation Fund under a bill (S-696/A-2851) signed into law by the Governor on May 7, 2003. The Hazardous Discharge Site Remediation Fund is a special revolving fund contained within the Brownfield and Contaminated Site Remediation Act, which is dedicated to the financing of remediation activities at sites where there is, or might be, a discharge of hazardous substances or hazardous wastes. Individuals, private businesses and certain government entities are all eligible to tap into the Hazardous Discharge Site Remediation Fund, which is administered by the New Jersey Economic Development Authority. N.J.S.A. 58:10B-4.
In view of the above, it is clear that the Governor's vision for making redevelopment of brownfields more attractive to individuals, businesses and developers is beginning to take shape. However, there are still plenty of items on the Governor's agenda, as outlined in Executive Order No. 38, which have yet to be addressed in a meaningful way.