N.J. Stat. § 58:10B-31

This is a courtesy copy of the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 
58:10B-1 et seq. The official version is published in the New Jersey Statutes. If there are any 
discrepancies between this text and the official version of the statute, the official version will 
govern. 
 
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TITLE 58. WATERS AND WATER SUPPLY 
CHAPTER 10B. HAZARDOUS DISCHARGE SITE REMEDIATION 
 
*** THIS SECTION IS CURRENT THROUGH NEW JERSEY 218
th
 LEGISLATURE *** 
*** SECOND ANNUAL SESSION, P.L. 2019 CHAPTER 266 AND JR 22 *** 
 
 
58:10B-1.  Definitions................................................................................................................1 
58:10B-1.1.  Short title [Brownfield and Contaminated Site Remediation Act] ..........................4 
58:10B-1.2.  Findings, declarations relative to remediation of contaminated sites ......................5 
58:10B-1.3.  Remediation of discharge of hazardous substance; requirements ...........................5 
58:10B-2.  Rules, regulations, deviations from regulations .......................................................7 
58:10B-2.1.  Departmental oversight of cleanup, remediation; fee, costs, certain, permitted ......8 
58:10B-3.  Establishment, maintenance of remediation funding source ...................................9 
58:10B-3.1.  Authority to perform remediation of condemned property by local government 
unit, certain conditions .....................................................................................16 
58:10B-3.2.  Annual charge for prompt remediation of certain industrial properties; 
inapplicability ..................................................................................................17 
58:10B-4.  Hazardous Discharge Site Remediation Fund .......................................................17 
58:10B-4.1.  Repealed by L. 2005, c. 358, § 2, effective January 12, 2006 ...............................18 
58:10B-5.  Financial assistance from remediation fund ..........................................................18 
58:10B-6.  Financial assistance and grants from the fund; allocations; purposes ...................20 
58:10B-6.1.  Grants, Hazardous Discharge Site Remediation Fund; certain brownfield sites ...24 
58:10B-6.2.  Time limit for expending of grant awarded ...........................................................25 
58:10B-7.  Awarding of financial assistance, grants, priorities ...............................................25 
58:10B-8.  Financial assistance, grant recipients’ compliance, conditions .............................26 
58:10B-8.1.  Conditions for payment of grant from Hazardous Discharge Site Remediation 
Fund .................................................................................................................28 
58:10B-9.  Violators of environmental law may not receive financial assistance, grant .........29 
58:10B-10.  Legal responsibility of applicant for compliance...................................................29 
58:10B-11.  Remediation funding source surcharge ..................................................................30 
58:10B-12.  Adoption of remedial standards .............................................................................30 
58:10B-12.1.  Green and sustainable practices encouraged ..........................................................39 
58:10B-13.  Use of nonresidential standards or other controls, requirements ...........................39 

BROWNFIELD ACT  N.J.S.A. 58:10B 
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10B-13.1.  No further action letter; covenant not to sue ..........................................................42 
10B-13.2.  Covenant not to sue, provisions .............................................................................44 
10B-14.  Development of guidance document .....................................................................45 
10B-15.  Responsibility for prior discharges, exemptions; penalties ...................................46 
10B-16.  Access to property to conduct remediation ............................................................47 
10B-17.  Review of department decision concerning remediation .......................................48 
10B-17.1.  Commencement of civil actions under environmental laws, limitations; 
definitions ........................................................................................................49 
10B-18.  Preparation, distribution of informational materials ..............................................50 
10B-19.  Implementation of interim response action............................................................50 
10B-20.  Remediation Guarantee Fund ................................................................................51 
10B-21.  Investigation, determination of extent of contamination of aquifers .....................52 
10B-22.  Investigation, mapping of historic fill areas ..........................................................53 
10B-23.  “Brownfield’s Redevelopment Task Force”; duties ..............................................54 
10B-23.1.  Findings, declarations relative to redevelopment of brownfield sites ...................55 
10B-23.2.  Preparation of inventory of brownfield sites; definitions ......................................56 
10B-24.  Duties of Department of Environmental Protection ..............................................56 
10B-24.1.  Written notification of contaminated site remediation ..........................................57 
10B-24.2.  Copies of documents, reports, data to municipality, county ..................................58 
10B-24.3.  Notification to public of remediation of contaminated site, response to 
inquiries; requirements.....................................................................................58 
10B-24.4.  Definitions relative to remediation of contaminated sites .....................................59 
10B-24.5.  Notification of master list of known hazardous discharge sites; DEP website ......59 
10B-24.6.  Definitions relative to procedures concerning soil contamination on school 
property ............................................................................................................60 
10B-24.7.  Provision of notice to parent, guardian, staff .........................................................60 
10B-25.  Designation of State environmental agency under federal law .............................61 
10B-25.1.  Guidelines for designation of brownfield development areas ...............................61 
10B-25.2.  Grant expenditures for remedial action constitutes debt of property owner to 
fund; lien ..........................................................................................................62 
10B-25.3.  Pilot program for awarding grants to nonprofit organizations; conditions ............62 
10B-26.  Definitions relative to redevelopment agreements ................................................63 
10B-27.  Terms and conditions of agreements .....................................................................65 
10B-27.1.  State may enter into certain redevelopment agreements at certain landfill sites ...66 

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58:10B-27.2.  Entry of State into redevelopment agreement, certain circumstances ...................67 
58:10B-28.  Eligibility for reimbursement; certification ...........................................................68 
58:10B-29.  Qualifications for certification of reimbursement for remediation costs; 
oversight document ..........................................................................................69 
58:10B-30.  Brownfield Site Reimbursement Fund...................................................................70 
58:10B-31.  Reimbursement of remediation costs .....................................................................71 
 
 

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58:10B-1. Definitions

As used in sections 23 through 43 and section 45 of P.L.1993, c.139 (C.58:10B-1 et seq.), as

may be amended and supplemented:

“Area of concern” means any location where contaminants are or were known or suspected

to have been discharged, generated, manufactured, refined, transported, stored, handled, treated,

or disposed, or where contaminants have or may have migrated;

“Authority” means the New Jersey Economic Development Authority established pursuant to

P.L.1974, c.80 (C.34:1B-1 et seq.);

“Brownfield development area” means an area that has been so designated by the

department, in writing, pursuant to the provisions of section 7 of P.L.2005, c.223 (C.58:10B-

25.1);

“Brownfield site” means any former or current commercial or industrial site that is currently

vacant or underutilized and on which there has been, or there is suspected to have been, a

discharge of a contaminant;

“Contamination” or “contaminant” means any discharged hazardous substance as defined

pursuant to section 3 of P.L.1976, c.141 (C.58:10-23.11b), hazardous waste as defined pursuant

to section 1 of P.L.1976, c.99 (C.13:1E-38), or pollutant as defined pursuant to section 3 of

P.L.1977, c.74 (C.58:10A-3);

“Department” means the Department of Environmental Protection;

“Discharge” means an intentional or unintentional action or omission resulting in the

releasing, spilling, leaking, pumping, pouring, emitting, emptying, or dumping of a contaminant

onto the land or into the waters of the State;

“Engineering controls” means any mechanism to contain or stabilize contamination or ensure

the effectiveness of a remedial action. Engineering controls may include, without limitation,

caps, covers, dikes, trenches, leachate collection systems, signs, fences and physical access

controls;

“Environmental opportunity zone” has the meaning given that term pursuant to section 3 of

P.L.1995, c.413 (C.54:4-3.152);

“Final remediation document” means a no further action letter issued by the department

pursuant to P.L.1993, c.139 (C.58:10B-1 et al.), or a response action outcome issued by a

licensed site remediation professional pursuant to section 14 of P.L.2009, c.60 (C.58:10C-14);

“Financial assistance” means loans or loan guarantees;

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“Institutional controls” means a mechanism used to limit human activities at or near a

contaminated site, or to ensure the effectiveness of the remedial action over time, when

contaminants remain at a contaminated site in levels or concentrations above the applicable

remediation standard that would allow unrestricted use of that property. Institutional controls

may include, without limitation, structure, land, and natural resource use restrictions, well

restriction areas, and deed notices;

“Licensed site remediation professional” means an individual who is licensed by the Site

Remediation Professional Licensing Board pursuant to section 7 of P.L.2009, c.60 (C.58:10C-7)

or the department pursuant to section 12 of P.L.2009, c.60 (C.58:10C-12);

“Limited restricted use remedial action” means any remedial action that requires the

continued use of institutional controls but does not require the use of an engineering control;

“No further action letter” means a written determination by the department that based upon

an evaluation of the historical use of a particular site, or of an area of concern or areas of concern

at that site, as applicable, and any other investigation or action the department deems necessary,

there are no discharged contaminants present at the site, at the area of concern or areas of

concern, at any other site to which a discharge originating at the site has migrated, or that any

discharged contaminants present at the site or that have migrated from the site have been

remediated in accordance with applicable remediation regulations;

“Person” means an individual, corporation, company, partnership, firm, or other private

business entity;

“Person responsible for conducting the remediation” means (1) any person who executes or

is otherwise subject to an oversight document to remediate a contaminated site, (2) the owner or

operator of an industrial establishment subject to P.L.1983, c.330 (C.13:1K-6 et al.), for the

remediation of a discharge, (3) the owner or operator of an underground storage tank subject to

P.L.1986, c.102 (C.58:10A-21 et seq.), for the remediation of a discharge, (4) any other person

who discharges a hazardous substance or is in any way responsible for a hazardous substance,

pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g), that was discharged at a contaminated

site, or (5) any other person who is remediating a site;

“Preliminary assessment” means the first phase in the process of identifying areas of concern

and determining whether contaminants are or were present at a site or have migrated or are

migrating from a site, and shall include the initial search for and evaluation of, existing site

specific operational and environmental information, both current and historic, to determine if

further investigation concerning the documented, alleged, suspected or latent discharge of any

contaminant is required. The evaluation of historic information shall be conducted from 1932 to

the present, except that the department may require the search for and evaluation of additional

information relating to ownership and use of the site prior to 1932 if such information is

available through diligent inquiry of the public records;

“Presumptive remedy” means a remedial action established by the department pursuant to

paragraph (10) of subsection g. of section 35 of P.L.1993, c.139 (C.58:10B-12);

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“Recreation and conservation purposes” means the use of lands for beaches, biological or

ecological study, boating, camping, fishing, forests, greenways, hunting, natural areas, parks,

playgrounds, protecting historic properties, water reserves, watershed protection, wildlife

preserves, active sports, or a similar use for either public outdoor recreation or conservation of

natural resources, or both;

“Remedial action” means those actions taken at a site or offsite if a contaminant has migrated

or is migrating therefrom, as may be required by the department, including the removal,

treatment, containment, transportation, securing, or other engineering or treatment measures,

whether to an unrestricted use or otherwise, designed to ensure that any discharged contaminant

at the site or that has migrated or is migrating from the site, is remediated in compliance with the

applicable health risk or environmental standards;

“Remedial action workplan” means a plan for the remedial action to be undertaken at a site,

or at any area to which a discharge originating at a site is migrating or has migrated; a

description of the remedial action to be used to remediate a site; a time schedule and cost

estimate of the implementation of the remedial action; and any other information the department

deems necessary;

“Remedial investigation” means a process to determine the nature and extent of a discharge

of a contaminant at a site or a discharge of a contaminant that has migrated or is migrating from

the site and the problems presented by a discharge, and may include data collected, site

characterization, sampling, monitoring, and the gathering of any other sufficient and relevant

information necessary to determine the necessity for remedial action and to support the

evaluation of remedial actions if necessary;

“Remediation” or “remediate” means all actions to investigate, clean up, or respond to any

known, suspected, or threatened discharge of contaminants, including the preliminary

assessment, site investigation, remedial investigation, and remedial action, or any portion

thereof, provided, however, that “remediation” or “remediate” shall not include the payment of

compensation for damage to, or loss of, natural resources;

“Remediation fund” means the Hazardous Discharge Site Remediation Fund established

pursuant to section 26 of P.L.1993, c.139 (C.58:10B-4);

“Remediation funding source” means the methods of financing the remediation of a

discharge required to be established by a person performing the remediation pursuant to section

25 of P.L.1993, c.139 (C.58:10B-3);

“Remediation standards” means the combination of numeric standards that establish a level

or concentration, and narrative standards to which contaminants must be treated, removed, or

otherwise cleaned for soil, groundwater, or surface water, as provided by the department

pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12) in order to meet the health risk or

environmental standards;

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“Response action outcome” means a written determination by a licensed site remediation

professional that the contaminated site was remediated in accordance with all applicable statutes

and regulations, and based upon an evaluation of the historical use of the site, or of any area of

concern at that site, as applicable, and any other investigation or action the department deems

necessary, there are no contaminants present at the site, or at any area of concern, at any other

site to which a discharge originating at the site has migrated, or that any contaminants present at

the site or that have migrated from the site have been remediated in accordance with applicable

remediation regulations, and all applicable permits and authorizations have been obtained;

“Restricted use remedial action” means any remedial action that requires the continued use of

engineering and institutional controls in order to meet the established health risk or

environmental standards;

“Site investigation” means the collection and evaluation of data adequate to determine

whether or not discharged contaminants exist at a site or have migrated or are migrating from the

site at levels in excess of the applicable remediation standards. A site investigation shall be

developed based upon the information collected pursuant to the preliminary assessment;

“Unrestricted use remedial action” means any remedial action that does not require the

continued use of engineering or institutional controls in order to meet the established health risk

or environmental standards;

“Voluntarily perform a remediation” means performing a remediation without having been

ordered or directed to do so by the department or by a court and without being compelled to

perform a remediation pursuant to the provisions of P.L.1983, c.330 (C.13:1K-6 et al.).

History

L. 1993, c. 139, § 23; amended 1997, c. 278, § 9, eff. Jan. 6, 1998; 2001, c. 154, § 3, eff. July

13, 2001; 2005, c. 223, § 1, eff. Sept. 15, 2005; 2009, c. 60, § 40, eff. Nov. 3, 2009; 2019, c. 263,

§ 6, eff. Aug. 23, 2019.

58:10B-1.1. Short title [Brownfield and Contaminated Site Remediation Act]

Sections 23 through 43 and section 45 of P.L.1993, c.139 (C.58:10B-1 et seq.), as may be

amended and supplemented, shall be known and may be cited as the “Brownfield and

Contaminated Site Remediation Act.”

History

L. 1997, c. 278, § 1.

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58:10B-1.2. Findings, declarations relative to remediation of contaminated sites

The Legislature finds and declares that due to New Jersey’s industrial history, large areas in

the State’s urban and suburban areas formerly used for commercial and industrial purposes are

underused or abandoned; that many of these properties, often referred to as brownfields, are

contaminated with hazardous substances and pose a health risk to the nearby residents and a

threat to the environment; and that these sites can be a blight to the neighborhood and a financial

drain on a municipality because they have no productive use, and fail to generate property taxes

and jobs. The Legislature further finds that often there are legal, financial, technical, and

institutional impediments to the efficient and cost-effective cleanup of brownfield sites as well as

all other contaminated sites wherever they may be. The Legislature finds and declares that the

State needs to ensure that the public health and safety and the environment are protected from the

risks posed by contaminated sites and that strict standards coupled with a risk based and flexible

regulatory system will result in more cleanups and thus the elimination of the public’s exposure

to these hazardous substances and the environmental degradation that contamination causes.

The Legislature therefore declares that strict remediation standards are necessary to protect

public health and safety and the environment; that these standards should be adopted based upon

the risk posed by discharged hazardous substances; that unrestricted remedies for contaminated

sites are preferable and the State must adopt policies that encourage their use; that institutional

and engineering controls should be allowed only when the public health risk and environmental

protection standards are met; and that in order to encourage the cleanup of contaminated sites,

there must be finality in the process, the provision of financial incentives, liability protection for

innocent parties who clean up, cleanup procedures that are cost effective and regulatory action

that is timely and efficient.

History

L. 1997, c. 278, § 2.

58:10B-1.3. Remediation of discharge of hazardous substance; requirements

a. An owner or operator of an industrial establishment subject to the provisions of P.L.1983,

c.330 (C.13:1K-6 et al.), the discharger of a hazardous substance or a person in any way

responsible for a hazardous substance pursuant to the provisions of subsection c. of section 8 of

P.L.1976, c.141 (C.58:10-23.11g), or the owner or operator of an underground storage tank

regulated pursuant to the provisions of P.L.1986, c.102 (C.58:10A-21 et seq.), that has

discharged a hazardous substance, shall remediate the discharge of a hazardous substance.

b. A person who initiates a remediation at least 180 days after the date of enactment of

P.L.2009, c.60 (C.58:10C-1 et al.) shall:

(1) retain a licensed site remediation professional to perform the remediation;

(2) notify the department of the name and license information of the licensed site

remediation professional who has been retained to perform the remediation;

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(3) conduct the remediation without the prior approval of the department, unless directed

otherwise by the department;

(4) establish a remediation funding source if a remediation funding source is required

pursuant to the provisions of section 25 of P.L.1993, c.139 (C.58:10B-3);

(5) pay all applicable fees and oversight costs as required by the department;

(6) provide access to the contaminated site to the department;

(7) provide access to all applicable documents concerning the remediation to the

department;

(8) meet the mandatory remediation timeframes and expedited site specific timeframes

established by the department pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28); and

(9) obtain all necessary permits.

c.(1) Any person who initiates a remediation prior to the date of enactment of P.L.2009, c.60

(C.58:10C-1 et al.), or prior to the issuance of temporary licenses to site remediation

professionals pursuant to section 12 of P.L.2009, c.60 (C.58:10C-12), shall comply with the

provisions of paragraphs (4) through (9) of subsection b. of this section.

(2) The department may require a person required to perform a remediation pursuant to

subsection a. of this section, or a person who has initiated a remediation prior to the date of

enactment of P.L.2009, c.60 (C.58:10C-1 et al.), to comply with the provisions of subsection

b. of this section if, after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), the

department (a) issues a final order or a penalty becomes due and payable, concerning the

performance of the remediation, or (b) issues a demand for stipulated penalties pursuant to

the provisions of an oversight document in which the person waived a right to a hearing on

the penalties.

(3) No later than three years after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et

al.), a person responsible for conducting the remediation, no matter when the remediation is

initiated, shall comply with the provisions of subsection b. of this section.

d.(1) The provisions of this section shall not apply to any person who remediates a discharge

from an unregulated heating oil tank. For any person who remediates a discharge from an

unregulated heating oil tank, the provisions of section 15 of P.L.2009, c.60 (C.58:10C-15) shall

apply.

(2) The provisions of this section shall not apply to any person who: (a) does not own a

contaminated site, (b) conducts a preliminary assessment or site investigation of the

contaminated site for the purpose of conducting all appropriate inquiry into the previous

ownership and uses of the property as provided in section 8 of P.L.1976, c.141 (C.58:10-

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23.11g), and (c) has not discharged a hazardous substance at the site or is not in any way

responsible for a hazardous substance discharged at the site pursuant to section 8 of

P.L.1976, c.141 (C.58:10-23.11g).

(3) A person shall not be required to retain a licensed site remediation professional

pursuant to this section to conduct sampling or investigation to confirm or evaluate a

remediation performed or supervised by a retained licensed site remediation professional,

provided that such sampling or investigation: (1) is not required pursuant to this section or

any other law, rule, regulation, or order; (2) is not conducted in order to obtain a response

action outcome; and (3) is not conducted in order to investigate, clean up, or respond to any

known, suspected, or threatened discharge of a contaminant. e. Any person who fails to

comply with the provisions of this section shall be liable to the enforcement provisions

established pursuant to section 22 of P.L.1976, c.141 (C.58:10-23.11u).

History

L. 2009, c. 60, § 30, eff. May 7, 2009; amended 2019, c. 263, § 7, eff. Aug. 23, 2019.

58:10B-2. Rules, regulations, deviations from regulations

a. The department shall, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410

(C.52:14B-1 et seq.), adopt rules and regulations establishing criteria and standards necessary for

the submission, evaluation and approval of plans or results of preliminary assessments, site

investigations, remedial investigations, and remedial action workplans and for the

implementation thereof. The documents for the preliminary assessment, site investigation,

remedial investigation, and remedial action workplan required to be submitted for a remediation,

shall not be identical to the criteria and standards used for similar documents submitted pursuant

to federal law, except as may be required by federal law. In establishing criteria and standards for

these terms the department shall strive to be result oriented, provide for flexibility, and to avoid

duplicate or unnecessarily costly or time consuming conditions or standards.

b. The regulations adopted by the department pursuant to subsection a. of this section shall

provide that a person performing a remediation may deviate from the strict adherence to the

regulations, in a variance procedure or by another method prescribed by the department, if that

person can demonstrate that the deviation and the resulting remediation would be as protective of

human health, safety, and the environment, as appropriate, as the department’s regulations and

that the health risk standards established in subsection d. of section 35 of P.L.1993, c.139

(C.58:10B-12) and any applicable environmental standards would be met. Factors to be

considered in determining if the deviation should be allowed are whether the alternative method:

(1) has been either used successfully or approved by the department in writing or similar

situations;

(2) reflects current technology as documented in peer-reviewed professional journals;

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(3) can be expected to achieve the same or substantially the same results or objectives as

the method which it is to replace; and

(4) furthers the attainment of the goals of the specific remedial phase for which it is used.

c. To the extent practicable and in conformance with the standards for remediations as

provided in section 35 of P.L.1993, c.139 (C.58:10-12), the department shall adopt rules and

regulations that allow for certain remedial actions to be undertaken in a manner prescribed by the

department without having to obtain prior approval from or submit detailed documentation to the

department. A person who performs a remedial action in the manner prescribed in the rules and

regulations of the department, and who certifies this fact to the department, shall obtain a final

remediation document for that particular remedial action.

d. The department shall develop regulatory procedures that encourage the use of innovative

technologies in the performance of remedial actions and other remediation activities.

e. Notwithstanding any other provisions of this section, all remediation standards and

remedial actions that involve real property located in the pinelands area shall be consistent with

the provisions of the “Pinelands Protection Act,” P.L.1979, c.111 (C.13:18A-1 et seq.), any rules

and regulations adopted pursuant thereto, and with section 502 of the “National Parks and

Recreation Act of 1978,” 16 U.S.C. § 471i.

f. Notwithstanding any other provisions of this section, all remediation standards and

remedial actions that involve real property located in the Highlands preservation area shall be

consistent with the provisions of the “Highlands Water Protection and Planning Act,” P.L.2004,

c.120 (C.13:20-1 et al.), and any rules and regulations and the Highlands regional master plan

adopted pursuant thereto.

History

L. 1993, c. 139, § 24; amended 1997, c. 278, § 10, eff. Jan. 6, 1998; 2004, c. 120, § 80, eff.

Aug. 10, 2004; 2009, c. 60, § 41, eff. Nov. 3, 2009.

58:10B-2.1. Departmental oversight of cleanup, remediation; fee, costs, certain, permitted

a. In the case of an owner or operator of an industrial establishment or any other person

required to perform remediation activities pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), or a

discharger, a person in any way responsible for a hazardous substance, or a person otherwise

liable for cleanup and removal costs pursuant to subsection c. of section 8 of P.L.1976, c.141

(C.58:10-23.11g) and who does not have a defense to liability pursuant to subsection d. of that

section, the fees for department oversight of the cleanup and removal of a discharge of a

hazardous substance performed after the effective date of P.L.2002, c.37 may include the indirect

costs of the department and the costs related to the department’s oversight charged to the

department by other State departments or agencies.

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b. In the case of the remediation of a contaminated site performed by any person not subject

to the provisions of subsection a. of this section, the fees for department oversight of the

remediation performed after the effective date of P.L.2002, c.37 shall not include any indirect

costs, but may include those program costs directly related to the oversight of the remediation

and the costs related to the department’s oversight charged to the department by other State

departments or agencies.

c. In the case of the cleanup and removal of a discharged hazardous substance at a person’s

primary residence, the fees for department oversight of the remediation performed after the

effective date of P.L.2002, c.37 shall not include any indirect costs, but may include only those

program costs directly related to the oversight of the remediation.

d. The department shall not establish or impose a fee for the oversight of any cleanup and

removal of a discharged hazardous substance or for the remediation of a contaminated site that

includes direct program costs and indirect costs which together exceed seven and one-half

percent of the cost of the remediation of a contaminated site or the cleanup and removal of a

discharged hazardous substance.

History

L. 2002, c. 37, § 1, eff. July 1, 2002 (eff. date amended 2004, c. 50, § 4); 2009; 2009, c. 60, §

42, eff. Nov. 3, 2009.

58:10B-3. Establishment, maintenance of remediation funding source

a. Except as otherwise provided in section 27 of P.L.2009, c.60 (C.58:10C-27), the owner or

operator of an industrial establishment or any other person required to perform remediation

activities pursuant to P.L.1983, c.330 (C.13:1K-6 et al.), or a discharger, a person in any way

responsible for a hazardous substance, or a person otherwise liable for cleanup and removal costs

pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.) who has been issued a directive or an order

by a State agency, who has entered into an administrative consent order with a State agency, or

who has been ordered by a court to clean up and remove a hazardous substance or hazardous

waste discharge pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.), shall establish and maintain

a remediation funding source in the amount necessary to pay the estimated cost of the required

remediation. A person who performs a remediation in an environmental opportunity zone is not

required to establish or maintain a remediation funding source. A person who uses an innovative

technology or who, in a timely fashion, implements an unrestricted use remedial action or a

limited restricted use remedial action for all or part of a remedial action is not required to

establish a remediation funding source for the cost of the remediation involving the innovative

technology or permanent remedy. A government entity, a person who undertakes a remediation

at their primary or secondary residence, the owner or operator of a child care center licensed

pursuant to P.L.1983, c.492 (C.30:5B-1 et seq.) who performs a remediation at the licensed child

care center, or the person responsible for conducting a remediation at a public school or private

school as defined in N.J.S.18A:1-1, or a charter school established pursuant to P.L.1995, c.426

(C.18A:36A-1 et seq.), shall not be required to establish or maintain a remediation funding

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source. A person required to establish a remediation funding source pursuant to this section shall

provide to the department satisfactory documentation that the requirement has been met.

The remediation funding source shall be established in an amount equal to or greater than the

cost estimate of the implementation of the remediation (1) as approved by the department or as

determined by the licensed site remediation professional, as applicable, in accordance with rules

and regulations adopted by the department pursuant to section 29 of P.L.2009, c.60 (C.58:10C-

29), (2) as provided in an administrative consent order or remediation agreement or remediation

certification as required pursuant to subsection e. of section 4 of P.L.1983, c.330, (3) as stated in

a departmental order or directive, or (4) as agreed to by a court, and shall be in effect for a term

not less than the actual time necessary to perform the remediation at the site. Whenever the

remediation cost estimate increases, the person required to establish the remediation funding

source shall cause the amount of the remediation funding source to be increased to an amount at

least equal to the new estimate. Whenever the remediation cost estimate decreases, the person

required to obtain the remediation funding source may file a written request to the department to

decrease the amount in the remediation funding source or may submit written documentation to

the department certified by the licensed site remediation professional of the details of the

decrease in the cost estimate, as applicable. The remediation funding source may be decreased to

the amount of the new estimate upon written approval by the department delivered to the person

who established the remediation funding source or upon submission of the certification by the

licensed site remediation professional, as applicable.

b. The department may not require any other financial assurance by the person responsible

for conducting the remediation other than that required in this section. In the case of a

remediation performed pursuant to P.L.1983, c.330, the remediation funding source shall be

established no more than 14 days after the approval by the department or the certification by the

licensed site remediation professional of a remedial action workplan, upon approval of a

remediation agreement pursuant to subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), or

upon submission of a remediation certification pursuant to subsection e. of P.L.1983, c.330,

unless the department approves an extension. In the case of a remediation performed pursuant to

P.L.1976, c.141, the remediation funding source shall be established as provided in an

administrative consent order signed by the parties, as provided by a court, or as directed or

ordered by the department. In the case of a remediation performed under the department’s

oversight pursuant to section 27 of P.L.2009, c.60 (C.58:10C-27), the remediation funding

source shall be established at the time the person becomes subject to the department’s oversight.

The establishment of a remediation funding source for that part of the remediation funding

source to be established by a grant or financial assistance from the remediation fund may be

established for the purposes of this subsection by the application for a grant or financial

assistance from the remediation fund and satisfactory evidence submitted to the department that

the grant or financial assistance will be awarded. However, if the financial assistance or grant is

denied or the department finds that the person responsible for establishing the remediation

funding source did not take reasonable action to obtain the grant or financial assistance, the

department shall require that the full amount of the remediation funding source be established

within 14 days of the denial or finding. Except as provided in section 27 of P.L.2009, c.60

(C.58:10C-27), the remediation funding source shall be evidenced by the establishment and

maintenance of (1) a remediation trust fund, administered by an entity that has the authority to

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act as a trustee and whose trust operations are regulated and examined by a federal or State

agency, or governed by court rule, (2) an environmental insurance policy, issued by an entity

licensed by the Department of Banking and Insurance to transact business in the State of New

Jersey, to fund the remediation, (3) a line of credit from a financial institution regulated pursuant

to State or federal law and satisfactory to the department authorizing the person responsible for

performing the remediation to borrow money, (4) a self-guarantee, (5) a letter of credit from a

financial institution regulated pursuant to State or federal law that guarantees the performance of

the remediation by the person to the satisfaction of the department, or (6) a surety bond from an

entity that is listed as an acceptable surety on federal bonds in United States Treasury

Department Circular 570, or by any combination thereof. Where it can be demonstrated that a

person cannot establish and maintain a remediation funding source for the full cost of the

remediation by a method specified in this subsection, that person may establish the remediation

funding source for all or a portion of the remediation, by securing financial assistance from the

Hazardous Discharge Site Remediation Fund as provided in section 29 of P.L.1993, c.139

(C.58:10B-7).

c. A remediation trust fund shall be established pursuant to the provisions of this subsection.

An originally signed duplicate of the trust agreement shall be delivered to the department (1) by

certified mail, overnight delivery, or personal service within 14 days of receipt of notice from the

department that the remedial action workplan or remediation agreement as provided in

subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9) is approved, (2) within 14 days of

submission to the department of a remedial action workplan certified by a licensed site

remediation professional as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-

9), (3) upon submission of a remediation certification to the department as provided in

subsection e. of section 4 of P.L.1983, c.330, or (4) as specified in an administrative consent

order, civil order, or order of the department, as applicable. The remediation trust fund

agreement shall conform to a model trust fund agreement as established by the department and

shall be accompanied by a certification of acknowledgment that conforms to a model established

by the department. The trustee shall be an entity which has the authority to act as a trustee and

whose trust operations are regulated and examined by a federal or New Jersey agency.

The trust fund agreement shall provide that the remediation trust fund may not be revoked or

terminated by the person required to establish the remediation funding source or by the trustee

without the written consent of the department. The person who establishes the remediation

funding source in the form of a trust fund may use the remediation funding source to pay for the

actual cost of the remediation. The trustee shall disburse to the person required to establish the

remediation funding source, or to the department or transferee of the property, as appropriate,

only those moneys as the department or the licensed site remediation professional authorizes, in

writing, to be disbursed. The trustee shall release to the person who established the remediation

funding source, or to the department or transferee of the property, as appropriate, only those

moneys as the department authorizes, in writing, to be released. For any remediation subject to

the oversight of the department pursuant to section 27 of P.L.2009, c.60 (C.58:10C-27), the

person entitled to receive money from the remediation trust fund shall submit documentation to

the department detailing the costs incurred or to be incurred as part of the remediation. Upon a

determination by the department that the costs are consistent with the remediation of the site, the

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department shall, in writing, authorize a disbursement of moneys from the remediation trust fund

in the amount of the documented costs.

The department shall return the original remediation trust fund agreement to the trustee for

termination after the department receives an alternative remediation funding source as specified

in this section or the department notifies the person required to establish and maintain the

remediation funding source that that person is no longer required to maintain a remediation

funding source for remediation of the contaminated site.

d. An environmental insurance policy shall be established pursuant to the provisions of this

subsection. An originally signed duplicate of the insurance policy shall be delivered to the

department (1) by certified mail, overnight delivery, or personal service within 14 days of receipt

of notice from the department that the remedial action workplan or remediation agreement, as

provided in subsection e. of section 4 of P.L.1983, c.330, is approved, (2) within 14 days of

submission to the department of a remedial action workplan certified by a licensed site

remediation professional as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-

9), (3) upon submission of a remediation certification to the department as provided in

subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), or (4) as specified in an administrative

consent order, civil order, or order of the department, as applicable. The environmental insurance

policy shall be issued by an entity that is licensed by the New Jersey Department of Banking and

Insurance to transact business in the State.

An environmental insurance policy cannot be revoked or terminated without the prior written

approval of the department, except upon failure by the insured to pay the premium. The issuer of

the environmental insurance policy may revoke or terminate the policy for failure to pay the

premium only after notifying the person who established the remediation funding source and the

department, by certified mail, of the decision to revoke or terminate the policy.

The insurance company that provides the environmental insurance policy shall reduce the

policy only as the department directs in writing. The insurance company that provides the

environmental insurance policy shall release to the department or to a person authorized to

perform the remediation pursuant to subsection g. of this section only moneys authorized by the

department, in writing, to be released. The department shall authorize, in writing, the termination

of the environmental insurance policy after the department receives an alternative remediation

funding source as specified in this section or the department notifies the person required to

establish and maintain the funding source that the person is no longer required to maintain a

remediation funding source for the remediation of the contaminated site.

e. A line of credit shall be established pursuant to the provisions of this subsection. A line of

credit shall allow the person establishing it to borrow money up to a limit established in a written

agreement in order to pay for the cost of the remediation for which the line of credit was

established. An originally signed duplicate of the line of credit agreement shall be delivered to

the department (1) by certified mail, overnight delivery, or personal service within 14 days of

receipt of notice from the department that the remedial action workplan or remediation

agreement as provided in subsection e. of section 4 of P.L.1983, c.330 is approved, (2) within 14

days of submission to the department of a remedial action workplan certified by a licensed site

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remediation professional as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-

9), (3) upon submission of a remediation certification to the department as provided in

subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), or (4) as specified in an administrative

consent order, civil order, or order of the department, as applicable. The line of credit agreement

shall conform to a model agreement as established by the department and shall be accompanied

by a certification of acknowledgment that conforms to a model established by the department.

The line of credit shall be issued by an institution that is licensed by the New Jersey Department

of Banking and Insurance to transact business in the State, or by a federally regulated bank.

The line of credit shall not be allowed to expire, unless the institution provides the

appropriate notification to the department and the borrower, as defined in a model agreement

established by the department. The person who establishes the remediation funding source in the

form of a line of credit may use the remediation funding source to pay for the actual cost of the

remediation. The institution providing the line of credit shall disburse to the person required to

establish the remediation funding source, or to the department or transferee of the property, as

appropriate, only those moneys as the department or the licensed site remediation professional

authorizes, in writing, to be disbursed. The institution providing the line of credit shall release to

the person who established the remediation funding source, or to the department or transferee of

the property as appropriate, only those moneys as the department authorizes, in writing, to be

released.

The department shall return the original line of credit agreement to the institution providing

the line of credit for termination after the department receives an alternative remediation funding

source as specified in this section, or after the department notifies the person required to establish

and maintain the remediation funding source that that person is no longer required to maintain a

remediation funding source for remediation of the contaminated site.

f. A person may self-guarantee a remediation funding source upon the submittal of

documentation to the department demonstrating that the cost of the remediation would not

exceed one-third of the tangible net worth of the person required to establish the remediation

funding source, and that the person has a cash flow sufficient to assure the availability of

sufficient moneys for the remediation during the time necessary for the remediation.

Documentation shall be delivered to the department (1) by certified mail, overnight delivery, or

personal service within 14 days of receipt of notice from the department that the remedial action

workplan or remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330

is approved, (2) within 14 days of submission to the department of a remedial action workplan

certified by a licensed site remediation professional as provided in subsection e. of section 4 of

P.L.1983, c.330 (C.13:1K-9), (3) upon submission of a remediation certification pursuant to the

department as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), or (4) as

specified in an administrative consent order, civil order, or order of the department, as

applicable. Satisfactory documentation of a person’s capacity to self-guarantee a remediation

funding source shall consist of audited financial statements, in which the auditor expresses an

unqualified opinion, that includes a statement of income and expenses or similar statement of

that person and the balance sheet or similar statement of assets and liabilities as used by that

person for the fiscal year of the person making the application that ended closest in time to the

date of the self-guarantee application. In the case of a special purpose entity established

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specifically for the purpose of acquiring and redeveloping a contaminated site, and for which a

statement of income and expenses is not available, the documentation shall include a statement

of assets and liabilities certified by a certified public accountant. The self-guarantee application

shall be certified as true to the best of the applicant’s information, knowledge, and belief, by the

chief financial, or similar officer or employee, or general partner, or principal of the person

making the self-guarantee application. A person shall be deemed by the department to possess

the required cash flow pursuant to this section if that person’s gross receipts exceed its gross

payments in that fiscal year in an amount at least equal to the estimated costs of completing the

remedial action workplan schedule to be performed in the 12-month period following the date on

which the application for self-guarantee is made and the individual or entity possesses a net cash

flow provided by operating activities in an amount at least equal to the estimated costs of

completing the remediation in the 12-month period following the date the application is made. In

the event that a self-guarantee is required for a period of more than one year, applications for a

self-guarantee shall be renewed annually pursuant to this subsection for each successive year.

The department may establish requirements and reporting obligations to ensure that the person

proposing to self-guarantee a remediation funding source meets the criteria for self-guaranteeing

prior to the initiation of remedial action and until completion of the remediation.

g.(1) If the person required to establish the remediation funding source fails to perform the

remediation as required, or fails to meet the conditions established pursuant to paragraph (3) of

subsection a. of section 27 of P.L.2009, c.60 (C.58:10C-27) or section 1 of P.L.2013, c.283

(C.58:10C-27.1), or the mandatory remediation timeframes or expedited site specific timeframes

established pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28) for the performance of the

remedial action, the department shall make a written determination of this fact. A copy of the

determination by the department shall be delivered to the person required to establish the

remediation funding source and, in the case of a remediation conducted pursuant to P.L.1983,

c.330 (C.13:1K-6 et al.), to any transferee of the property. Following this written determination,

the department may perform the remediation in place of the person required to establish the

remediation funding source. In order to finance the cost of the remediation the department may

make disbursements from the remediation funding source, or, if sufficient moneys are not

available from those funds, from the remediation guarantee fund created pursuant to section 45

of P.L.1993, c.139 (C.58:10B-20).

(2) The transferee of property subject to a remediation conducted pursuant to P.L.1983,

c.330 (C.13:1K-6 et al.), may, at any time after the department’s determination of

nonperformance by the owner or operator required to establish the remediation funding

source, petition the department, in writing, with a copy being sent to the owner and operator,

for authority to perform the remediation at the industrial establishment. The department,

upon a determination that the transferee is competent to do so, may grant that petition which

shall authorize the transferee to perform the remediation as specified in an approved remedial

action workplan, or to perform the activities as required in a remediation agreement, or as

provided in a remediation certification, and to avail itself of the moneys in the remediation

trust fund, letter of credit, line of credit, or surety bond, or to make claims upon the

environmental insurance policy for these purposes. The petition of the transferee shall not be

granted by the department if the owner or operator continues or begins to perform its

obligations within 14 days of the petition being filed with the department.

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(3) After the department has begun to perform the remediation in the place of the person

required to establish the remediation funding source or has granted the petition of the

transferee to perform the remediation, the person required to establish the remediation

funding source shall not be permitted by the department to continue its performance

obligations except upon the agreement of the department or the transferee, as applicable, or

except upon a determination by the department that the transferee is not adequately

performing the remediation.

h. A letter of credit shall be established pursuant to the provisions of this subsection. A letter

of credit shall allow a person to guarantee the availability of funds up to a limit established in a

written agreement in order to guarantee the payment of the cost of the remediation for which the

letter of credit was established. An originally signed duplicate of the letter of credit agreement

shall be delivered to the department (1) by certified mail, overnight delivery, or personal service

within 14 days of receipt of notice from the department that the remedial action workplan or

remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9)

is approved, (2) within 14 days of submission to the department of a remedial action workplan

certified by a licensed site remediation professional as provided in subsection e. of section 4 of

P.L.1983, c.330 (C.13:1K-9), (3) upon submission of a remediation certification to the

department as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), or (4) as

specified in an administrative consent order, civil order, or order of the department, as

applicable. The letter of credit agreement shall conform to a model agreement as established by

the department and shall be accompanied by a certification of acknowledgment that conforms to

a model established by the department. The letter of credit shall be issued by an entity that is

licensed by the New Jersey Department of Banking and Insurance to transact business in the

State, or by a federally regulated bank.

The letter of credit shall not be allowed to expire unless the financial institution provides the

appropriate notification to the department and the application, as defined by a model agreement

established by the department. The financial institution that provides the letter of credit shall

release to the department or to a person authorized to perform the remediation pursuant to

subsection g. of this section, only moneys authorized by the department, in writing, to be

released. The department shall return the original letter of credit to the financial institution

providing the letter of credit for termination after the department receives an alternative

remediation funding source as authorized in this section, or after the department notifies the

person required to establish and maintain the remediation funding source that that person is no

longer required to maintain a remediation funding source for the remediation of the contaminated

site.

i. A surety bond shall be established pursuant to the provisions of this subsection. A surety

bond shall allow a person to guarantee the availability of funds up to a limit established in a

written agreement in order to guarantee the payment of the cost of the remediation for which the

surety bond was established. An originally signed duplicate of the surety bond agreement shall

be delivered to the department (1) by certified mail, overnight delivery, or personal service

within 14 days of receipt of notice from the department that the remedial action workplan or

remediation agreement as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9)

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is approved, (2) within 14 days of submission to the department of a licensed site remediation

professional certified remedial action workplan as provided in subsection e. of section 4 of

P.L.1983, c.330 (C.13:1K-9), (3) upon submission of a remediation certification to the

department as provided in subsection e. of section 4 of P.L.1983, c.330 (C.13:1K-9), or (4) as

specified in an administrative consent order, civil order, or order of the department, as

applicable. The surety bond agreement shall conform to a model agreement established by the

department and shall be accompanied by a certification of acknowledgment that conforms to a

model established by the department. The surety company issuing the bond must be a company

that is listed as an acceptable surety on federal bonds in United States Treasury Department

Circular 570.

The surety bond shall not be cancelled unless the surety company provides the appropriate

notice of cancellation to the department and the principal, as defined in a model agreement

established by the department. The surety company that provides the surety bond shall release to

the department, or to a person authorized to perform the remediation pursuant to subsection g. of

this section, only monies authorized by the department, in writing, to be released. The

department shall return the original surety bond to the surety company for termination after the

department receives an alternative remediation funding source as specified in this section or the

department notifies the person that that person is no longer required to maintain a remediation

funding source for remediation of the contaminated site.

History

L. 1993, c. 139, § 25; amended 1997, c. 278, § 11, eff. Jan. 6, 1998; 2003, c. 224, § 2, eff.

Jan. 9, 2004; 2009, c. 60, § 43, eff. Nov. 3, 2009; 2019, c. 263, § 8, eff. Aug. 23, 2019.

58:10B-3.1. Authority to perform remediation of condemned property by local government

unit, certain conditions

a. If a local government unit condemns contaminated property pursuant to the “Eminent

Domain Act of 1971,” P.L.1971, c.361 (C.20:3-1 et seq.), and the property is undergoing a

remediation, the local government unit may petition the Department of Environmental

Protection, in writing, for authority to perform the remediation of the condemned property. The

department, upon a determination that the local government unit has demonstrated sufficient

resources to perform the remediation, may replace the person performing the remediation of the

condemned property with the local government unit that has condemned the property, provided

that, at the time the condemnation action is filed, more than four years have elapsed since the

person performing the remediation first entered into an oversight document for the site with the

Department of Environmental Protection and the person has not begun implementation of a

remedial action workplan for each area of concern on the property. The department shall not

replace the person performing the remediation of the condemned property unless the local

government unit enters into an appropriate oversight document with the department to perform

the remediation.

b. Upon the replacement of the person performing a remediation of contaminated property

with a local government unit pursuant to subsection a. of this section, the department may release

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the person performing the remediation from the requirement to establish a remediation funding

source as otherwise required pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3).

History

L. 2005, c. 355, § 1, eff. Jan. 12, 2006.

58:10B-3.2. Annual charge for prompt remediation of certain industrial properties;

inapplicability

a. Except as provided in subsection b. of this section, whenever an industrial property that is

subject to any federal or State court order, or administrative action or order, for environmental

remediation becomes vacant or underutilized, the municipality in which the property is located

may assess an annual charge to ensure the prompt remediation of the property. The charge shall

not exceed the difference between the amount of property taxes paid on the property in the last

year of full industrial operation and the amount of property taxes paid on the property for the

current year. Unpaid charges shall constitute a lien on the property and shall be collected in the

same manner as property taxes. The municipality shall deposit any funds collected pursuant to

this section with the Commissioner of Environmental Protection, who shall credit the amounts

deposited against the property owner’s environmental remediation liability pursuant to law.

b. The provisions of this section shall not apply to any property for which a remediation trust

fund has been established pursuant to the provisions of section 25 of P.L.1993, c.139 (C.58:10B-

3).

History

L. 2012, c. 19, § 3, eff. July 9, 2012.

58:10B-4. Hazardous Discharge Site Remediation Fund

a. There is established in the New Jersey Economic Development Authority a special,

revolving fund to be known as the Hazardous Discharge Site Remediation Fund. Except as

provided in section 4 of P.L.2007, c.135 (C.52:27D-130.7), moneys in the remediation fund shall

be dedicated for the provision of financial assistance or grants to municipalities, counties,

redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of

P.L.1992, c.79 (C.40A:12A-4), and persons, for the purpose of financing remediation activities

at sites at which there is, or is suspected of being, a discharge of hazardous substances or

hazardous wastes.

b. The remediation fund shall be credited with:

(1) moneys as are appropriated by the Legislature;

(2) moneys deposited into the fund as repayment of principal and interest on outstanding

loans made from the fund;

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(3) any return on investment of moneys deposited in the fund;

(4) (Deleted by amendment, P.L.2009, c.60);

(5) moneys deposited in the fund as repayment of recoverable grants made by the New

Jersey Redevelopment Authority for brownfield redevelopment;

(6) moneys deposited into the fund from cost recovery subrogation actions; and

(7) moneys made available to the authority for the purposes of the fund.

History

L. 1993, c. 139, § 26; amended 1997, c. 278, § 12, eff. Jan. 6, 1998; 2005, c. 223, § 2, eff.

Sept. 15, 2005; 2007, c. 135, § 1, eff. Nov. 4, 2007; 2009, c. 60, § 44, eff. Nov. 3, 2009.

58:10B-4.1. Repealed by L. 2005, c. 358, § 2, effective January 12, 2006

58:10B-5. Financial assistance from remediation fund

a.(1) Except as provided in section 4 of P.L.2007, c.135 (C.52:27D-130.7), financial

assistance from the remediation fund may only be rendered to persons who cannot establish a

remediation funding source for the full amount of a remediation. Financial assistance pursuant to

this act may be rendered only for that amount of the cost of a remediation for which the person

cannot establish a remediation funding source. The limitations on receiving financial assistance

established in this paragraph (1) shall not limit the ability of municipalities, counties,

redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of

P.L.1992, c.79 (C.40A:12A-4), persons who are not required to establish a remediation funding

source for that part of the remediation involving an unrestricted use remedial action, persons

performing a remediation in an environmental opportunity zone, or persons who voluntarily

perform a remediation, from receiving financial assistance from the fund.

(2) Financial assistance rendered to persons who voluntarily perform a remediation or

perform a remediation in an environmental opportunity zone may only be made for that

amount of the cost of the remediation that the person cannot otherwise fund by any of the

authorized methods to establish a remediation funding source.

(3) Financial assistance rendered to persons who do not have to provide a remediation

funding source for the part of the remediation that involves an unrestricted use remedial

action may only be made for that amount of the cost of the remediation that the person

cannot otherwise fund by any of the authorized methods to establish a remediation funding

source.

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b. Financial assistance may be rendered from the remediation fund to (1) owners or operators

of industrial establishments who are required to perform remediation activities pursuant to

P.L.1983, c.330 (C.13:1K-6 et al.), upon closing operations or prior to the transfer of ownership

or operations of an industrial establishment, (2) persons who are liable for the cleanup and

removal costs of a hazardous substance pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.), and

(3) persons who voluntarily perform a remediation of a discharge of a hazardous substance or

hazardous waste.

c. Financial assistance and grants may be made from the remediation fund to a municipality,

county, or redevelopment entity authorized to exercise redevelopment powers pursuant to section

4 of P.L.1992, c.79 (C.40A:12A-4), for real property: (1) on which it holds a tax sale certificate;

(2) that it has acquired through foreclosure or other similar means; or (3) that it has acquired, or

in the case of a county governed by a board of chosen freeholders, has passed a resolution or, in

the case of a municipality or a county operating under the “Optional County Charter Law,”

P.L.1972, c.154 (C.40:41A-1 et seq.), has passed an ordinance or other appropriate document to

acquire, by voluntary conveyance for the purpose of redevelopment, for renewable energy

generation or for recreation and conservation purposes. Financial assistance and grants may only

be awarded for real property on which there has been a discharge or on which there is a

suspected discharge of a hazardous substance or hazardous waste.

d. (Deleted by amendment, P.L.2017, c.353)

e. Grants may be made from the remediation fund to qualifying persons who propose to

perform a remedial action that would result in an unrestricted use remedial action.

f. Grants may be made from the remediation fund to municipalities, counties, and

redevelopment entities authorized to exercise redevelopment powers pursuant to section 4 of

P.L.1992, c.79 (C.40A:12A-4), for the preliminary assessment, site investigation, remedial

investigation, and remedial action for real property where there is a discharge or suspected

discharge of a hazardous substance or hazardous waste within a brownfield development area.

Grants may only be made for a remedial action pursuant to this subsection when there is a

confirmed discharge of a hazardous substance or hazardous waste. Grants made pursuant to this

subsection for a remedial action may not exceed 75 percent of the total costs of the remedial

action. An ownership interest in the contaminated property shall not be required in order for a

municipality, county, or redevelopment entity authorized to exercise redevelopment powers

pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) to receive a grant for a preliminary

assessment, site investigation, and remedial investigation for real property where there is a

discharge or suspected discharge of a hazardous substance or hazardous waste in a brownfield

development area. Notwithstanding the limitation on the total amount of financial assistance and

grants that may be awarded in any one year pursuant to subsection b. of section 28 of P.L.1993,

c.139 (C.58:10B-6), the authority may award an additional amount of financial assistance and

grants in any one year, of up to $1,000,000, to any one municipality, county, or redevelopment

entity for the remediation of property in a brownfield development area.

BROWNFIELD ACT N.J.S.A. 58:10B

Page 20 of 71

History

L. 1993, c. 139, § 27; amended 1996, c. 62, § 64, eff. Sept. 10, 1996; 1997, c. 278, § 13, eff.

Jan. 6, 1998; 1999, c. 214, § 1, eff. Sept. 20, 1999; 2005, c. 223, § 3, eff. Sept. 15, 2005; 2007, c.

135, § 2, eff. Nov. 4, 2007; 2009, c. 302, § 1, eff. Jan. 17, 2010; 2017, c. 353, § 1, eff. Jan. 16,

2018.

Page 20 of 71

58:10B-6. Financial assistance and grants from the fund; allocations; purposes

a. Except for moneys deposited in the remediation fund for specific purposes, and as

provided in section 4 of P.L.2007, c.135 (C.52:27D-130.7), financial assistance and grants from

the remediation fund shall be rendered for the following purposes. A written report shall be sent

to the Senate Environment and Energy Committee, and the Assembly Environment and Solid

Waste Committee, or their successors at the end of each calendar quarter detailing the allocation

and expenditures related to the financial assistance and grants from the fund.

(1) Moneys shall be allocated for financial assistance to persons, for remediation of real

property located in a qualifying municipality as defined in section 1 of P.L.1978, c.14

(C.52:27D-178);

(2) Moneys shall be allocated to:

(a) municipalities, counties, or redevelopment entities authorized to exercise

redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), for:

(i) projects in brownfield development areas pursuant to subsection f. of section

27 of P.L.1993, c.139 (C.58:10B-5),

(ii) matching grants up to a cumulative total amount from the fund of $2,500,000

per year of up to 75 percent of the costs of the remedial action for projects involving

the redevelopment of contaminated property for recreation and conservation

purposes, provided that the use of the property for recreation and conservation

purposes is included in the comprehensive plan for the development or

redevelopment of contaminated property, up to 75 percent of the costs of the remedial

action for projects involving the redevelopment of contaminated property for

renewable energy generation, or up to 50 percent of the costs of the remedial action

for projects involving the redevelopment of contaminated property for affordable

housing pursuant to P.L.1985, c.222 (C.52:27D-301 et al.),

(iii) grants for preliminary assessment, site investigation or remedial investigation

of a contaminated site,

(iv) financial assistance or grants for the implementation of a remedial action, or

BROWNFIELD ACT N.J.S.A. 58:10B

Page 21 of 71

(v) financial assistance for remediation activities at sites that have been

contaminated by a discharge of a hazardous substance or hazardous waste, or at

which there is an imminent and significant threat of a discharge of a hazardous

substance or hazardous waste, and the discharge or threatened discharge poses or

would pose an imminent and significant threat to a drinking water source, to human

health, or to a sensitive or significant ecological area; or

(b) persons for financial assistance for remediation activities at sites that have been

contaminated by a discharge of a hazardous substance or hazardous waste, or at which

there is an imminent and significant threat of a discharge of a hazardous substance or

hazardous waste, and the discharge or threatened discharge poses or would pose an

imminent and significant threat to a drinking water source, to human health, or to a

sensitive or significant ecological area.

Except as provided in subsection f. of section 27 of P.L.1993, c.139 (C.58:10B-5), financial

assistance and grants to municipalities, counties, or redevelopment entities authorized to exercise

redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) may be made for

real property: (1) on which they hold a tax sale certificate; (2) that they have acquired through

foreclosure or other similar means; or (3) that they have acquired, or, in the case of a county

governed by a board of chosen freeholders, have passed a resolution or, in the case of a

municipality or a county operating under the “Optional County Charter Law,” P.L.1972, c.154

(C.40:41A-1 et seq.), have passed an ordinance or other appropriate document to acquire, by

voluntary conveyance for the purpose of redevelopment, or for recreation and conservation

purposes. Financial assistance and grants may only be awarded for real property on which there

has been or on which there is suspected of being a discharge of a hazardous substance or a

hazardous waste. Grants and financial assistance provided pursuant to this paragraph shall be

used for performing preliminary assessments, site investigations, remedial investigations, and

remedial actions on real property in order to determine the existence or extent of any hazardous

substance or hazardous waste contamination, and to remediate the site in compliance with the

applicable health risk and environmental standards on those properties. No financial assistance or

grants for a remedial action shall be awarded until the municipality, county, or redevelopment

entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79

(C.40A:12A-4), actually owns the real property, provided that a matching grant for 75 percent of

the costs of a remedial action for a project involving the redevelopment of contaminated property

for recreation and conservation purposes, or a matching grant for 50 percent of the costs of a

remedial action for a project involving the redevelopment of contaminated property for

affordable housing pursuant to P.L.1985, c.222 (C.52:27D-301 et al.) may be made to a

municipality, county, or redevelopment entity authorized to exercise redevelopment powers

pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) even if it does not own the real property

and a grant may be made to a municipality, county, or redevelopment entity authorized to

exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) for a

remediation in a brownfield development area pursuant to subsection f. of section 27 of

P.L.1993, c.139 (C.58:10B-5) even if the entity does not own the real property. No grant shall be

awarded for a remedial action for a project involving the redevelopment of contaminated

property for recreation or conservation purposes unless the use of the property is preserved for

recreation and conservation purposes by conveyance of a development easement, conservation

BROWNFIELD ACT N.J.S.A. 58:10B

Page 22 of 71

restriction or easement, or other restriction or easement permanently restricting development,

which shall be recorded and indexed with the deed in the registry of deeds for the county. No

grant shall be awarded pursuant to this paragraph to a municipality, a county, or a redevelopment

entity authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79

(C.40A:12A-4) unless that entity has adopted by ordinance or resolution a comprehensive plan

specifically for the development or redevelopment of contaminated or potentially contaminated

real property in that municipality or the entity can demonstrate its commitment to the authority

that the subject real property will be developed or redeveloped within a three-year period from

the completion of the remediation. Until adoption of the criteria required pursuant to paragraph

(8) of subsection a. of section 30 of P.L.1993, c.139 (C.58:10B-8), the authority shall use the

criteria provided in this paragraph in determining the award of grants from the remediation fund;

(3) Moneys shall be allocated for financial assistance to persons who voluntarily perform

a remediation of a hazardous substance or hazardous waste discharge;

(4) (Deleted by amendment, P.L.2017, c.353)

(5) Moneys shall be allocated for (a) financial assistance to persons who own and plan to

remediate an environmental opportunity zone for which an exemption from real property

taxes has been granted pursuant to section 5 of P.L.1995, c.413 (C.54:4-3.154), or (b)

matching grants for up to 25 percent of the project costs to qualifying persons, municipalities,

counties, and redevelopment entities authorized to exercise redevelopment powers pursuant

to section 4 of P.L.1992, c.79 (C.40A:12A-4), who propose to perform a remedial action for

the implementation of an unrestricted use remedial action except that no grant awarded

pursuant to this paragraph may exceed $250,000; and

(6) At least 30 percent of the moneys in the remediation fund shall be allocated for grants

to a municipality, county, or redevelopment entity authorized to exercise redevelopment

powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) for the preliminary

assessment, site investigation, remedial investigation, or remedial action of a site, not located

in a brownfield development area, that has been contaminated by a discharge or a suspected

discharge of a hazardous substance or hazardous waste as authorized in this subsection. The

remainder of the moneys in the remediation fund shall be allocated for any of the purposes

authorized in this section. For the purposes of paragraph (5) of this subsection, "qualifying

persons" means any person who has a net worth of not more than $2,000,000 and "project

costs" means that portion of the total costs of a remediation that is specifically to implement

an unrestricted use remedial action.

b. Loans issued from the remediation fund shall be for a term not to exceed ten years, except

that upon the transfer of ownership of any real property for which the loan was made, the unpaid

balance of the loan shall become immediately payable in full. The unpaid balance of a loan for

the remediation of real property that is transferred by devise or succession shall not become

immediately payable in full, and loan repayments shall be made by the person who acquires the

property. Loans to municipalities, counties, and redevelopment entities authorized to exercise

redevelopment powers pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4), shall bear an

interest rate equal to 2 points below the Federal Discount Rate at the time of approval or at the

BROWNFIELD ACT N.J.S.A. 58:10B

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time of loan closing, whichever is lower, except that the rate shall be no lower than 3 percent. All

other loans shall bear an interest rate equal to the Federal Discount Rate at the time of approval

or at the time of the loan closing, whichever is lower, except that the rate on such loans shall be

no lower than five percent. Financial assistance and grants may be issued for up to 100 percent of

the estimated applicable remediation cost, except that the cumulative maximum amount of

financial assistance which may be issued to a person, in any calendar year, for one or more

properties, shall be $500,000. Financial assistance and grants to any one municipality, county, or

redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of

P.L.1992, c.79 (C.40A:12A-4) may not exceed $2,000,000 in any calendar year except as

provided in subsection f. of section 27 of P.L.1993, c.139 (C.58:10B-5). Grants to a

municipality, county, or redevelopment entity authorized to exercise redevelopment powers

pursuant to section 4 of P.L.1992, c.79 (C.40A:12A-4) may be for up to 100 percent of the total

costs of the preliminary assessment, site investigation, or remedial investigation subject to the

provisions of section 5 of P.L.2017, c.353 (C.58:10B-6.2). Grants to a municipality, a county, or

a redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of

P.L.1992, c.79 (C.40A:12A-4) may not exceed 75 percent of the total costs of the remedial

action at any one site. Repayments of principal and interest on the loans issued from the

remediation fund shall be paid to the authority and shall be deposited into the remediation fund.

c. No person, other than a qualified person planning to use an unrestricted use remedial

action for the cost of the remedial action, a person performing a remediation in an environmental

opportunity zone, or a person voluntarily performing a remediation, shall be eligible for financial

assistance from the remediation fund to the extent that person is capable of establishing a

remediation funding source for the remediation as required pursuant to section 25 of P.L.1993,

c.139 (C.58:10B-3).

d. The authority may use a sum that represents up to 2 percent of the moneys issued as

financial assistance or grants from the remediation fund each year for administrative expenses

incurred in connection with the operation of the fund and the issuance of financial assistance and

grants.

e. Prior to March 1 of each year, the authority shall submit to the Senate Environment and

Energy Committee and the Assembly Environment and Solid Waste Committee, or their

successors, a report detailing the amount of money that was available for financial assistance and

grants from the remediation fund for the previous calendar year, the amount of money estimated

to be available for financial assistance and grants for the current calendar year, the amount of

financial assistance and grants issued for the previous calendar year and the category for which

each financial assistance and grant was rendered, the amount of remediation costs expended for

each site for the previous calendar year for which financial assistance or a grant has been

approved and the balance remaining on each financial assistance or grant, and any suggestions

for legislative action the authority deems advisable to further the legislative intent to facilitate

remediation and promote the redevelopment and use of existing industrial sites.

History

L. 1993, c. 139, § 28; amended 1995, c. 413, § 10; 1996, c. 62, § 65, eff. Sept. 10, 1996;

1997, c. 278, § 14, eff. Jan. 6, 1998; 1999, c. 214, § 2, eff. Sept. 20, 1999; 2001, c. 70, § 1, eff.

BROWNFIELD ACT N.J.S.A. 58:10B

Page 24 of 71

Apr. 20, 2001; 2005, c. 223, § 4, eff. Sept. 15, 2005; 2006, c. 89, § 1, eff. Aug. 21, 2006; 2007, c.

25, § 1, eff. Jan. 26, 2007, retroactive to Sept. 1, 2006; 2007, c. 135, § 3, eff. Nov. 4, 2007; 2009,

c. 302, § 2, eff. Jan. 17, 2010; 2009, c. 303, § 1, eff. Jan. 17, 2010; 2017, c. 353, § 2, eff. Jan. 16,

2018.

58:10B-6.1. Grants, Hazardous Discharge Site Remediation Fund; certain brownfield sites

a. Notwithstanding the provisions of sections 27 and 28 of P.L. 1993, c. 139 (C. 58:10B-5

and 58:10B-6), or any other law, or any rule or regulation adopted pursuant thereto to the

contrary, the New Jersey Economic Development Authority may provide grants or removeable

grants from the Hazardous Discharge Site Remediation Fund established pursuant to section 26

of P.L. 1993, c. 139 (C. 58:10B-4) to a municipality that has received a commitment prior to the

effective date of this act from the New Jersey Redevelopment Authority, established pursuant to

P.L. 1996, c. 62 (C. 55:19-20 et al.), for funding the implementation of a remedial action and any

other activities within the approved scope of work associated with the redevelopment of a

brownfield site.

b. Grants may be provided pursuant to the provisions of this act to the following

municipalities for the following projects:

Municipality

Amount

Bayonne

$344,657

Camden

500,000

Camden-Nipper

1,500,000

Camden-Trailways

750,000

East Orange

100,000

Glassboro

94,000

Long Branch

350,000

Newark K-Mart

673,000

Newark Bergen Street

50,000

New Brunswick-Heldrich Center

1,000,000

Perth Amboy

845,000

Plainfield

750,000

Pleasantville

1,000,000

Rahway-80 East Milton

750,000

Rahway-Main & Monroe

25,000

Trenton

84,000

$8,816,157

c. Any repayments to the New Jersey Redevelopment Authority for grants or other financial

assistance made for brownfields remediation or redevelopment pursuant to the provisions of this

BROWNFIELD ACT N.J.S.A. 58:10B

Page 25 of 71

act shall be paid to the New Jersey Economic Development Authority and shall be deposited into

the fund.

d. As used in this act, “brownfield site” means any former or current commercial or industrial

site that is currently vacant or underutilized and on which there has been, or there is suspected to

have been, a discharge of a contaminant.

History

L. 2003, c. 121, § 1, eff. July 1, 2003.

58:10B-6.2. Time limit for expending of grant awarded

a. An award of financial assistance or a grant awarded pursuant to P.L.1993, c.139

(C.58:10B-1 et seq.) for a:

(1) preliminary assessment or site investigation of a contaminated site shall be expended

within two years after the date of the award;

(2) remedial investigation of a contaminated site shall be expended within five years after

the date of the award.

b. Failure to expend an award of financial assistance or a grant from the remediation fund

within the time limits established in subsection a. of this section shall result in cancellation of the

award.

c. No award of financial assistance or a grant shall be approved until the applicant

demonstrates to the satisfaction of the authority that it has expended or will expend the full

amount of any previous financial assistance or grant awarded under P.L.1993, c.139 (C.58:10B-1

et seq.) to that applicant for the same property.

History

L. 2017, c. 353, § 5, eff. Jan. 16, 2018.

58:10B-7. Awarding of financial assistance, grants, priorities

a. A qualified applicant for financial assistance or a grant from the remediation fund shall be

awarded financial assistance or a grant by the authority upon the availability of sufficient moneys

in the remediation fund for the purpose of the financial assistance or grant. The authority shall

award financial assistance and grants in the following order of priority:

(1) Sites on which there has been a discharge and the discharge poses an imminent and

significant threat to a drinking water source, to human health, or to a sensitive or significant

ecological area shall be given first priority;

BROWNFIELD ACT N.J.S.A. 58:10B

Page 26 of 71

(2) (Deleted by amendment, P.L.2017, c.353)

(3) Sites that are owned by a municipality in a brownfield development area shall be

given second priority; and

(4) Sites in areas designated as Planning Area 1 (Metropolitan) and Planning Area 2

(Suburban) pursuant to the “State Planning Act,” P.L.1985, c.398 (C.52:18A-196 et seq.),

shall be given third priority.

The priority ranking of applicants within any priority category enumerated in this section for

awarding financial assistance and grants from the remediation fund shall be based upon the date

of receipt by the authority of an application from the applicant and on readiness to proceed with

remediation as determined by the department and the authority. If an application is determined to

be incomplete by the authority, an applicant shall have 30 days from receipt of written notice of

incompleteness to file any additional information as may be required by the authority for a

completed application. If an applicant fails to file the additional information within those 30

days, the filing date for that application for financial assistance or a grant for a site that is not

within a priority category enumerated in this section, shall be the date that the additional

information is received by the authority. An application shall be deemed complete when all the

information required by the authority has been received in the required form.

b. Within 90 days, for a private entity, or 180 days for a municipality, county, or a

redevelopment entity authorized to exercise redevelopment powers pursuant to section 4 of

P.L.1992, c.79 (C.40A:12A-4), of notice of approval of a financial assistance or grant

application, an applicant shall submit to the authority an executed contract for the remediation

activities for which the financial assistance or grant application was made. The contract shall be

consistent with the terms and conditions for which the financial assistance or grant was rendered.

Failure to submit an executed contract within the time provided, without good cause, shall

constitute grounds for the alteration of an applicant’s priority ranking for the awarding of

financial assistance or a grant.

History

L. 1993, c. 139, § 29; amended 1996, c. 62, § 66; 2005, c. 223, § 5, eff. Sept. 15, 2005; 2017,

c. 353, § 3, eff. Jan. 16, 2018.

58:10B-8. Financial assistance, grant recipients’ compliance, conditions

a. The authority shall, by rule or regulation:

(1) require a financial assistance or grant recipient to provide to the authority, as

necessary or upon request, evidence that financial assistance or grant moneys are being spent

for the purposes for which the financial assistance or grant was made, and that the applicant

is adhering to all of the terms and conditions of the financial assistance or grant agreement;

BROWNFIELD ACT N.J.S.A. 58:10B

Page 27 of 71

(2) require the financial assistance or grant recipient to provide access at reasonable times

to the subject property to determine compliance with the terms and conditions of the financial

assistance or grant;

(3) establish a priority system for rendering financial assistance or grants for remediations

identified by the department as involving an imminent and significant threat to a public water

source, human health, or to a sensitive or significant ecological area pursuant to subsection a.

of section 28 of P.L.1993, c.139 (C.58:10B-6);

(4) (Deleted by amendment, P.L.2009, c.60);

(5) provide that an applicant for financial assistance or a grant pay a reasonable fee for

the application which shall be used by the authority for the administration of the loan and

grant program;

(6) provide that where financial assistance to a person other than a municipality, a county,

or a redevelopment entity authorized to exercise redevelopment powers pursuant to section 4

of P.L.1992, c.79 (C.40A:12A-4), is for a portion of the remediation cost, that the proceeds

thereof not be disbursed to the applicant until the costs of the remediation for which a

remediation funding source has been established has been expended;

(7) provide that the amount of a grant for the costs of a remedial action shall not include

the cost to remediate a site to meet residential soil remediation standards if the local zoning

ordinances adopted pursuant to the “Municipal Land Use Law,” P.L.1975, c.291 (C.40:55D-

1 et seq.) do not allow for residential use;

(8) adopt criteria, which must be met by a municipality, county, or redevelopment entity

authorized to exercise redevelopment powers pursuant to section 4 of P.L.1992, c.79

(C.40A:12A-4) that applies for a grant pursuant to paragraph (2) of subsection a. of section

28 of P.L.1993, c.139 (C.58:10B-6), that the subject real property will be developed or

redeveloped within a three-year period from the completion of the remediation; and

(9) adopt such other requirements as the authority shall deem necessary or appropriate in

carrying out the purposes for which the Hazardous Discharge Site Remediation Fund was

created.

b. An applicant for financial assistance or a grant shall be required to:

(1) provide proof, as determined sufficient by the authority, that the applicant, where

applicable, cannot establish a remediation funding source for all or part of the remediation

costs, as required by section 25 of P.L.1993, c.139 (C.58:10B-3). The provisions of this

paragraph do not apply to grants to innocent persons, grants for the use of innovative

technologies, or grants for the implementation of unrestricted use remedial actions or limited

restricted use remedial actions or to financial assistance or grants to municipalities, counties,

or redevelopment entities authorized to exercise redevelopment powers pursuant to section 4

of P.L.1992, c.79 (C.40A:12A-4); and

BROWNFIELD ACT N.J.S.A. 58:10B

Page 28 of 71

(2) demonstrate the ability to repay the amount of the financial assistance and interest,

and, if necessary, to provide adequate collateral to secure the financial assistance amount.

c. Information submitted as part of a loan or grant application or agreement shall be deemed

a public record subject to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.).

d. In establishing requirements for financial assistance or grant applications and financial

assistance or grant agreements, the authority:

(1) shall minimize the complexity and costs to applicants or recipients of complying with

such requirements;

(2) may not require financial assistance or grant conditions that interfere with the

everyday normal operations of the recipient’s business activities, except to the extent

necessary to ensure the recipient’s ability to repay the financial assistance and to preserve the

value of the loan collateral; and

(3) shall expeditiously process all financial assistance or grant applications in accordance

with a schedule established by the authority for the review and the taking of final action on

the application, which schedule shall reflect the degree of complexity of a financial

assistance or grant application.

History

L. 1993, c. 139, § 30; amended 1997, c. 278, § 15, eff. Jan. 6, 1998; 2005, c. 223, § 6, eff.

Sept. 15, 2005; 2009, c. 60, § 45, eff. Nov. 3, 2009; 2017, c. 353, § 4, eff. Jan. 16, 2018.

58:10B-8.1. Conditions for payment of grant from Hazardous Discharge Site Remediation

Fund

a. The New Jersey Economic Development Authority shall require that payment of a grant or

financial assistance from the Hazardous Discharge Site Remediation Fund shall be conditioned

upon the subrogation to the department of all rights of the recipient to recover remediation costs

from an insurance carrier, discharger, or person in any way responsible for a hazardous substance

pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g) and who does not

have a defense to liability pursuant to subsection d. of that section, upon the failure of the

recipient to repay the financial assistance to the State. Nothing in this subsection shall be

construed to limit or otherwise affect the authority or rights of the department concerning the

discharge of a hazardous substance pursuant to P.L.1976, c.141, any other law, or pursuant to

common law, against a discharger or a person in any way responsible for a hazardous substance.

b. The New Jersey Economic Development Authority shall not award a grant or financial

assistance from the Hazardous Discharge Site Remediation Fund if the applicant relinquishes,

impairs, or waives, or has relinquished, impaired, or waived, any right to recover the costs of the

BROWNFIELD ACT N.J.S.A. 58:10B

Page 29 of 71

remediation against an insurance carrier, discharger, or person in any way responsible for a

hazardous substance pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g).

c. In any action by the department to enforce a right of subrogation, the department shall be

entitled to invoke any right or defense available to the recipient of a grant or financial assistance

from the Hazardous Discharge Site Remediation Fund.

d. All moneys collected in a cost recovery subrogation action shall be deposited into the

Hazardous Discharge Site Remediation Fund.

History

L. 2009, c. 60, § 32, eff. May 7, 2009.

58:10B-9. Violators of environmental law may not receive financial assistance, grant

No financial assistance or grant from the remediation fund shall be rendered to a person who

is currently in violation of an administrative or judicial order, judgment, or consent agreement

regarding violation or threatened violation of an environmental law regarding the subject

property, unless the violation, fee, penalty or assessment is currently being contested by the

person in a manner prescribed by law or unless the violation resulted from a lack of sufficient

money to perform required remediation activities.

History

L. 1993, c. 139, § 31.

58:10B-10. Legal responsibility of applicant for compliance

a. The lack of sufficient moneys in the remediation fund to satisfy all financial assistance or

grant applications shall not affect in any way an applicant’s legal responsibility to comply with

the requirements of P.L.1983, c.330 (C.13:1K-6 et al.), P.L.1976, c.141 (C.58:10-23.11 et seq.),

or any other applicable provision of law.

b. Nothing in sections 23 through 43 of P.L.1993, c.139 (C.58:10B-1 et seq.) shall be

construed to:

(1) impose any obligation on the State for any financial assistance or grant commitments

rendered by the authority, and the authority’s obligations shall be limited to the amount of

otherwise unobligated moneys available in the fund therefor; or

(2) impose any obligation on the authority for the quality of any work performed pursuant

to a remediation undertaken with financial assistance or a grant rendered pursuant to section

28 of P.L.1993, c.139 (C.58:10B-6).

BROWNFIELD ACT N.J.S.A. 58:10B

Page 30 of 71

History

L. 1993, c. 139, § 32.

58:10B-11. Remediation funding source surcharge

a. There is imposed upon every person who is required to establish a remediation funding

source pursuant to section 25 of P.L.1993, c.139 (C.58:10B-3) a remediation funding source

surcharge. The remediation funding source surcharge shall be in an amount equal to 1% of the

required amount of the remediation funding source required by the department to be maintained.

No surcharge, however, may be imposed upon (1) that amount of the remediation funding source

that is met by a self-guarantee as provided in subsection f. of section 25 of P.L.1993, c.139

(C.58:10B-3), (2) that amount of the remediation funding source that is met by financial

assistance or a grant from the remediation fund, (3) any person who voluntarily performs a

remediation pursuant to an administrative consent order, (4) any person who entered voluntarily

into a memorandum of understanding with the department to remediate real property, as long as

that person meets the mandatory remediation timeframes and expedited site specific timeframes

established by the department pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28), (5) any

person performing a remediation in an environmental opportunity zone, or (6) that portion of the

cost of the remediation that is specifically for the use of an innovative technology or to

implement a limited restricted use remedial action or an unrestricted use remedial action. The

surcharge shall be based on the cost of remediation work remaining to be completed and shall be

paid on an annual basis as long as the remediation continues and until the Department of

Environmental Protection issues a no further action letter or the licensed site remediation

professional issues a response action outcome for the property subject to the remediation. The

remediation funding source surcharge shall be due and payable within 14 days of the time of the

department’s approval of a remedial action workplan or signing an administrative consent order

or as otherwise provided by law. The department shall collect the surcharge and shall remit all

moneys collected to the Remediation Guarantee Fund established pursuant to section 45 of

P.L.1993, c.139 (C.58:10B-20).

b. By February 1 of each year, the department shall issue a report to the Senate Environment

Committee and to the Assembly Environment and Solid Waste Committee, or their successors,

listing, for the prior calendar year, each person who owed the remediation funding source

surcharge, the amount of the surcharge paid, and the total amount collected.

History

L. 1993, c. 139, § 33; amended 1997, c. 278, § 16, eff. Jan. 6, 1998; 2009, c. 60, § 46, eff.

Nov. 3, 2009.

58:10B-12. Adoption of remedial standards

a. The Department of Environmental Protection shall adopt minimum remediation standards

for soil, groundwater, and surface water quality necessary for the remediation of contamination

of real property. The remediation standards shall be developed to ensure that the potential for

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harm to public health and safety and to the environment is minimized to acceptable levels, taking

into consideration the location, the surroundings, the intended use of the property, the potential

exposure to the discharge, and the surrounding ambient conditions, whether naturally occurring

or man-made.

Until the minimum remediation standards for the protection of public health and safety as

described herein are adopted, the department shall apply public health and safety remediation

standards for contamination at a site on a case-by-case basis based upon the considerations and

criteria enumerated in this section.

The department may not require any person to perform an ecological evaluation of any area

of concern that consists of an underground storage tank storing heating oil for on-site

consumption in a one to four family residential building.

b. In developing minimum remediation standards the department shall:

(1) base the standards on generally accepted and peer reviewed scientific evidence or

methodologies;

(2) base the standards upon reasonable assumptions of exposure scenarios as to amounts

of contaminants to which humans or other receptors will be exposed, when and where those

exposures will occur, and the amount of that exposure;

(3) avoid the use of redundant conservative assumptions. The department shall avoid the

use of redundant conservative assumptions by the use of parameters that provide an adequate

margin of safety and which avoid the use of unrealistic conservative exposure parameters and

which guidelines make use of the guidance and regulations for exposure assessment

developed by the United States Environmental Protection Agency pursuant to the

“Comprehensive Environmental Response, Compensation, and Liability Act of 1980,” 42

U.S.C. § 9601 et seq. and other statutory authorities as applicable;

(4) where feasible, establish the remediation standards as numeric or narrative standards

setting forth acceptable levels or concentrations for particular contaminants; and

(5) consider and utilize, in the absence of other standards used or developed by the

Department of Environmental Protection and the United States Environmental Protection

Agency, the toxicity factors, slope factors for carcinogens and reference doses for non-

carcinogens from the United States Environmental Protection Agency’s Integrated Risk

Information System (IRIS).

c.(1) The department shall develop residential and nonresidential soil remediation standards

that are protective of public health and safety. For contaminants that are mobile and transportable

to groundwater or surface water, the residential and nonresidential soil remediation standards

shall be protective of groundwater and surface water. Residential soil remediation standards shall

be set at levels or concentrations of contamination for real property based upon the use of that

property for residential or similar uses and which will allow the unrestricted use of that property

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without the need of engineering devices or any institutional controls and without exceeding a

health risk standard greater than that provided in subsection d. of this section. Nonresidential soil

remediation standards shall be set at levels or concentrations of contaminants that recognize the

lower likelihood of exposure to contamination on property that will not be used for residential or

similar uses, which will allow for the unrestricted use of that property for nonresidential

purposes, and that can be met without the need of engineering controls. Whenever real property

is remediated to a nonresidential soil remediation standard, except as otherwise provided in

paragraph (3) of subsection g. of this section, the department shall require, pursuant to section 36

of P.L.1993, c.139 (C.58:10B-13), that the use of the property be restricted to nonresidential or

other uses compatible with the extent of the contamination of the soil and that access to that site

be restricted in a manner compatible with the allowable use of that property.

(2) The department may develop differential remediation standards for surface water or

groundwater that take into account the current, planned, or potential use of that water in

accordance with the “Clean Water Act” (33 U.S.C. § 1251 et seq.) and the “Water Pollution

Control Act,” P.L.1977, c.74 (C.58:10A-1 et seq.).

d. The department shall develop minimum remediation standards for soil, groundwater, and

surface water intended to be protective of public health and safety taking into account the

provisions of this section. In developing these minimum health risk remediation standards the

department shall identify the hazards posed by a contaminant to determine whether exposure to

that contaminant can cause an increase in the incidence of an adverse health effect and whether

the adverse health effect may occur in humans. The department shall set minimum soil

remediation health risk standards for both residential and nonresidential uses that:

(1) for human carcinogens, as categorized by the United States Environmental Protection

Agency, will result in an additional cancer risk of one in one million;

(2) for noncarcinogens, will limit the Hazard Index for any given effect to a value not

exceeding one.

The health risk standards established in this subsection are for any particular contaminant and

not for the cumulative effects of more than one contaminant at a site.

e. Remediation standards and other remediation requirements established pursuant to this

section and regulations adopted pursuant thereto shall apply to remediation activities required

pursuant to the “Spill Compensation and Control Act,” P.L.1976, c.141 (C.58:10-23.11 et seq.),

the “Water Pollution Control Act,” P.L.1977, c.74 (C.58:10A-1 et seq.), P.L.1986, c.102

(C.58:10A-21 et seq.), the “Industrial Site Recovery Act,” P.L.1983, c.330 (C.13:1K-6 et al.), the

“Solid Waste Management Act,” P.L.1970, c.39 (C.13:1E-1 et seq.), the “Comprehensive

Regulated Medical Waste Management Act,” sections 1 through 25 of P.L.1989, c.34 (C.13:1E-

48.1 et seq.), the “Major Hazardous Waste Facilities Siting Act,” P.L.1981, c.279 (C.13:1E-49 et

seq.), the “Sanitary Landfill Facility Closure and Contingency Fund Act,” P.L.1981, c.306

(C.13:1E-100 et seq.), the “Regional Low-Level Radioactive Waste Disposal Facility Siting

Act,” P.L.1987, c.333 (C.13:1E-177 et seq.), or any other law or regulation by which the State

may compel a person to perform remediation activities on contaminated property. However,

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nothing in this subsection shall be construed to limit the authority of the department to establish

discharge limits for pollutants or to prescribe penalties for violations of those limits pursuant to

P.L.1977, c.74 (C.58:10A-1 et seq.), or to require the complete removal of nonhazardous solid

waste pursuant to law.

f.(1) A person performing a remediation of contaminated real property, in lieu of using the

established minimum soil remediation standard for either residential use or nonresidential use

adopted by the department pursuant to subsection c. of this section, may submit to the

department a request to use an alternative residential use or nonresidential use soil remediation

standard. The use of an alternative soil remediation standard shall be based upon site specific

factors which may include (1) physical site characteristics which may vary from those used by

the department in the development of the soil remediation standards adopted pursuant to this

section; or (2) a site specific risk assessment. If a person performing a remediation requests to

use an alternative soil remediation standard based upon a site specific risk assessment, that

person shall demonstrate to the department that the requested deviation from the risk assessment

protocol used by the department in the development of soil remediation standards pursuant to

this section is consistent with the guidance and regulations for exposure assessment developed

by the United States Environmental Protection Agency pursuant to the “Comprehensive

Environmental Response, Compensation, and Liability Act of 1980,” 42 U.S.C. § 9601 et seq.

and other statutory authorities as applicable. A site specific risk assessment may consider

exposure scenarios and assumptions that take into account the form of the contaminant present,

natural biodegradation, fate and transport of the contaminant, available toxicological data that are

based upon generally accepted and peer reviewed scientific evidence or methodologies, and

physical characteristics of the site, including, but not limited to, climatic conditions and

topographic conditions. Nothing in this subsection shall be construed to authorize the use of an

alternative soil remediation standard in those instances where an engineering control is the

appropriate remedial action, as determined by the department, to prevent exposure to

contamination.

Upon a determination by the department that the requested alternative remediation standard

satisfies the department’s regulations, is protective of public health and safety, as established in

subsection d. of this section, and is protective of the environment pursuant to subsection a. of this

section, the alternative residential use or nonresidential use soil remediation standard shall be

approved by the department. The burden to demonstrate that the requested alternative

remediation standard is protective rests with the person requesting the alternative standard and

the department may require the submission of any documentation as the department determines

to be necessary in order for the person to meet that burden.

(2) The department may, upon its own initiative, require an alternative remediation

standard for a particular contaminant for a specific real property site, in lieu of using the

established minimum residential use or nonresidential use soil remediation standard adopted

by the department for a particular contaminant pursuant to this section. The department may

require an alternative remediation standard pursuant to this paragraph upon a determination

by the department, based on the weight of the scientific evidence, that due to specific

physical site characteristics of the subject real property, including, but not limited to, its

proximity to surface water, the use of the adopted residential use or nonresidential use soil

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remediation standards would not be protective, or would be unnecessarily overprotective, of

public health or safety or of the environment, as appropriate.

g. The development, selection, and implementation of any remediation standard or remedial

action shall ensure that it is protective of public health, safety, and the environment, as

applicable, as provided in this section. In determining the appropriate remediation standard or

remedial action that shall occur at a site, the department and any person performing the

remediation, shall base the decision on the following factors:

(1) Unrestricted use remedial actions, limited restricted use remedial actions and

restricted use remedial actions shall be allowed except that unrestricted use remedial actions

and limited restricted use remedial actions shall be preferred over restricted use remedial

actions. For any remediation initiated one year after the date of enactment of P.L.2009, c.60

(C.58:10C-1 et al.), the department shall require the use of an unrestricted use remedial

action, or a presumptive remedy or an alternative remedy as provided in paragraph (10) of

this subsection, at a site or area of concern where new construction is proposed for residential

purposes, for use as a child care center licensed pursuant to P.L.1983, c.492 (C.30:5B-1 et

seq.), or as a public school or private school as defined in N.J.S.18A:1-1, as a charter school

established pursuant to P.L.1995, c.426 (C.18A:36A-1 et seq.), or where there will be a

change in the use of the site to residential, child care, or public school, private school, or

charter school purposes or another purpose that involves use by a sensitive population. For

any remediation initiated on or after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et

al.), the department may require the use of an unrestricted use remedial action or a

presumptive remedy as provided in guidelines adopted pursuant to paragraph (10) of this

subsection for a site or area of concern that is to be used for residential, child care, or public

school, private school, or charter school purposes or another purpose that involves use by a

sensitive population. Except as provided in this subsection, and section 27 of P.L.2009, c.60

(C.58:10C-27), the department, however, may not disapprove the use of a restricted use

remedial action or a limited restricted use remedial action so long as the selected remedial

action meets the health risk standard established in subsection d. of this section, and where,

as applicable, is protective of the environment. Except as provided in this subsection and

section 27 of P.L.2009, c.60 (C.58:10C-27), the choice of the remedial action to be

implemented shall be made by the person responsible for conducting the remediation in

accordance with regulations adopted by the department and that choice of the remedial action

shall be approved by the department if all the criteria for remedial action selection

enumerated in this section, as applicable, are met. Except as provided in section 27 of

P.L.2009, c.60 (C.58:10C-27), the department may not require a person to compare or

investigate any alternative remedial action as part of its review of the selected remedial

action. The department may disapprove the selection of a remedial action for a site on which

the proposed remedial action will render the property unusable for future redevelopment or

for recreational use;

(2) Contamination may, upon the department’s approval, be left onsite at levels or

concentrations that exceed the minimum soil remediation standards for residential use if the

implementation of institutional or engineering controls at that site will result in the protection

of public health, safety and the environment at the health risk standard established in

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subsection d. of this section, if the requirements established in subsections a., b., c. and d. of

section 36 of P.L.1993, c.139 (C.58:10B-13), and paragraphs (1) and (10) of this subsection,

are met. The department may also require the treatment or removal of contaminated material

that would pose an acute health or safety hazard in the event of failure of an engineering

control;

(3) Real property on which there is soil that has not been remediated to the residential soil

remediation standards, or real property on which the soil, groundwater, or surface water has

been remediated to meet the required health risk standard by the use of engineering or

institutional controls, may be developed or used for residential purposes, or for any other

similar purpose, if (a) all areas of that real property at which a person may come into contact

with soil are remediated to meet the residential soil remediation standards, (b) it is clearly

demonstrated that for all areas of the real property, other than those described in

subparagraph (a) above, engineering and institutional controls can be implemented and

maintained on the real property sufficient to meet the health risk standard as established in

subsection d. of this section, and (c) a presumptive remedy established and approved by the

department pursuant to paragraph (10) of this subsection, or an alternative remedy approved

by the department pursuant to paragraph (10) of this subsection, has been approved, as

provided in paragraphs (1) and (10) of this subsection;

(4) Remediation shall not be required beyond the regional natural background levels for

any particular contaminant. The department shall develop regulations that set forth a process

to identify background levels of contaminants for a particular region. For the purpose of this

paragraph “regional natural background levels” means the concentration of a contaminant

consistently present in the environment of the region of the site and which has not been

influenced by localized human activities;

(5) Remediation shall not be required of the owner or operator of real property for

contamination coming onto the site from another property owned and operated by another

person, unless the owner or operator is the person who is liable for cleanup and removal costs

pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.);

(6) Groundwater that is contaminated shall not be required to be remediated to a level or

concentration for any particular contaminant lower than the level or concentration that is

migrating onto the property from another property owned and operated by another person;

(7) The technical performance, effectiveness and reliability of the proposed remedial

action in attaining and maintaining compliance with applicable remediation standards and

required health risk standards shall be considered. In reviewing a proposed remedial action,

the department or the licensed site remediation professional shall also consider the ability of

the owner or operator to implement the proposed remedial action within a reasonable time

frame without jeopardizing public health, safety or the environment;

(8) The use of a remedial action for soil contamination that is determined by the

department to be effective in its guidance document created pursuant to section 38 of

P.L.1993, c.139 (C.58:10B-14), is presumed to be an appropriate remedial action if it is to be

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implemented on a site in the manner described by the department in the guidance document

and applicable regulations and if all of the conditions for remedy selection provided for in

this section are met. The burden to prove compliance with the criteria in the guidance

document is with the person responsible for conducting the remediation;

(9) (Deleted by amendment, P.L.1997, c.278);

(10) The department shall, by rule or regulation, establish presumptive remedies, use of

which shall be required on any site or area of concern to be used for residential purposes, as a

child care center licensed pursuant to P.L.1983, c.492 (C.30:5B-1 et seq.), as a public school

or private school as defined in N.J.S.18A:1-1, or as a charter school established pursuant to

P.L.1995, c.426 (C.18A:36A-1 et seq.). The department may also issue guidelines that

provide for presumptive remedies that may be required as provided in paragraph (1) of this

subsection, on a site to be used for residential purposes, as a child care center, or as a public

school, private school or charter school. The presumptive remedies shall be based on the

historic use of the property, the nature and extent of the contamination at the site, the future

use of the site and any other factors deemed relevant by the department. The department may

include the use of engineering and institutional controls in the presumptive remedies

authorized pursuant to this subsection. If the person responsible for conducting the

remediation demonstrates to the department that the use of an unrestricted use remedial

action or a presumptive remedy is impractical due to conditions at the site, or that an

alternative remedy would be equally protective over time as a presumptive remedy, then an

alternative remedy for the site that is protective of the public health and safety may be

proposed for review and approval by the department;

(11) The department may authorize a person conducting a remediation to divide a

contaminated site into one or more areas of concern. For each area of concern, a different

remedial action may be selected provided the requirements of this subsection are met and the

remedial action selected is consistent with the future use of the property; and

(12) The construction of single family residences, public schools, private schools, or

charter schools, or child care centers shall be prohibited on a landfill that undergoes a

remediation if engineering controls are required for the management of landfill gas or

leachate.

The burden to demonstrate that a remedial action is protective of public health, safety and the

environment, as applicable, and has been selected in conformance with the provisions of this

subsection is with the person responsible for conducting the remediation.

The department may require the person responsible for conducting the remediation to supply

the information required pursuant to this subsection as is necessary for the department to make a

determination.

h.(1) The department shall adopt regulations which establish a procedure for a person to

demonstrate that a particular parcel of land contains large quantities of historical fill material.

Upon a determination by the department that large quantities of historic fill material exist on that

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parcel of land, there is a rebuttable presumption that the department shall not require any person

to remove or treat the fill material in order to comply with applicable health risk or

environmental standards. In these areas the department shall establish by regulation the

requirement for engineering or institutional controls that are designed to prevent exposure of

these contaminants to humans, that allow for the continued use of the property, that are less

costly than removal or treatment, which maintain the health risk standards as established in

subsection d. of this section, and, as applicable, are protective of the environment. The

department may rebut the presumption only upon a finding by the preponderance of the evidence

that the use of engineering or institutional controls would not be effective in protecting public

health, safety, and the environment. The department may not adopt any rule or regulation that

has the effect of shifting the burden of rebutting the presumption. For the purposes of this

paragraph “historic fill material” means generally large volumes of non-indigenous material, no

matter what date they were emplaced on the site, used to raise the topographic elevation of a site,

which were contaminated prior to emplacement and are in no way connected with the operations

at the location of emplacement and which include, but are not limited to, construction debris,

dredge spoils, incinerator residue, demolition debris, fly ash, and non-hazardous solid waste.

Historic fill material shall not include any material which is substantially chromate chemical

production waste or any other chemical production waste or waste from processing of metal or

mineral ores, residues, slags or tailings.

(2) The department shall develop recommendations for remedial actions in large areas of

historic industrial contamination. These recommendations shall be designed to meet the

health risk standards established in subsection d. of this section, and to be protective of the

environment and shall take into account the industrial history of these sites, the extent of the

contamination that may exist, the costs of remedial actions, the economic impacts of these

policies, and the anticipated uses of these properties. The department shall issue a report to

the Senate Environment Committee and to the Assembly Environment and Solid Waste

Committee, or their successors, explaining these recommendations and making any

recommendations for legislative or regulatory action.

(3) The department may not, as a condition of allowing the use of a nonresidential use

soil remediation standard, or the use of institutional or engineering controls, require the

owner of that real property, except as provided in section 36 of P.L.1993, c.139 (C.58:10B-

13), to restrict the use of that property through the filing of a deed easement, covenant, or

condition.

i. The department may not require a remedial action workplan to be prepared or implemented

or engineering or institutional controls to be imposed upon any real property unless sampling

performed at that real property demonstrates the existence of contamination above the applicable

remediation standards.

j. Upon the approval by the department or by a licensed site remediation professional of a

remedial action workplan, or similar plan that describes the extent of contamination at a site and

the remedial action to be implemented to address that contamination, the department may not

subsequently require a change to that workplan or similar plan in order to compel a different

remediation standard due to the fact that the established remediation standards have changed;

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however, the department may compel a different remediation standard if the difference between

the new remediation standard and the remediation standard approved in the workplan or other

plan differs by an order of magnitude. The limitation to the department’s authority to change a

workplan or similar plan pursuant to this subsection shall only apply if the workplan or similar

plan is being implemented in a reasonable timeframe, as may be indicated in the approved

remedial action workplan or similar plan.

k. Notwithstanding any other provisions of this section, all remediation standards and

remedial actions that involve real property located in the Pinelands area shall be consistent with

the provisions of the “Pinelands Protection Act,” P.L.1979, c.111 (C.13:18A-1 et seq.), any rules

and regulations promulgated pursuant thereto, and with section 502 of the “National Parks and

Recreation Act of 1978,” 16 U.S.C. § 471i; and all remediation standards and remedial actions

that involve real property located in the Highlands preservation area shall be consistent with the

provisions of the “Highlands Water Protection and Planning Act,” P.L.2004, c.120 (C.13:20-1 et

al.), and any rules and regulations and the Highlands regional master plan adopted pursuant

thereto.

l. Upon the adoption of a remediation standard for a particular contaminant in soil,

groundwater, or surface water pursuant to this section, the department may amend that

remediation standard only upon a finding that a new standard is necessary to maintain the health

risk standards established in subsection d. of section 35 of P.L.1993, c.139 (C.58:10B-12) or to

protect the environment, as applicable. The department may not amend a public health based soil

remediation standard to a level that would result in a health risk standard more protective than

that provided for in subsection d. of section 35 of P.L.1993, c.139 (C.58:10B-12).

m. Nothing in P.L.1993, c.139 shall be construed to restrict or in any way diminish the public

participation which is otherwise provided under the provisions of the “Spill Compensation and

Control Act,” P.L.1976, c.141 (C.58:10-23.11 et seq.).

n. Notwithstanding any provision of subsection a. of section 36 of P.L.1993, c.139

(C.58:10B-13) to the contrary, the department may not require a person intending to implement a

remedial action at an underground storage tank facility storing heating oil for on-site

consumption at a one to four family residential dwelling to provide advance notice to a

municipality prior to implementing that remedial action.

o. A person who has remediated a site pursuant to the provisions of this section, who was

liable for the cleanup and removal costs of that discharge pursuant to the provisions of paragraph

(1) of subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), and who remains liable for

the discharge on that site due to a possibility that a remediation standard may change,

undiscovered contamination may be found, or because an engineering control was used to

remediate the discharge, shall maintain with the department a current address at which that

person may be contacted in the event additional remediation needs to be performed at the site.

The requirement to maintain the current address shall be made part of the conditions of the

permit issued pursuant to section 19 of P.L.2009, c.60 (C.58:10C-19) and the final remediation

document.

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History

L. 1993, c. 139, § 35; amended 1997, c. 278, § 17, eff. Jan. 6, 1998; 2004, c. 120, § 81, eff.

Aug. 10, 2004; 2009, c. 60, § 47, eff. Nov. 3, 2009; 2010, c. 87, § 3, eff. Nov. 3, 2010.

58:10B-12.1. Green and sustainable practices encouraged

The department shall encourage the use of green and sustainable practices during the

remediation of a contaminated site. The use of green and sustainable practices shall not alter the

requirement that the remediation be protective of the public health and safety and of the

environment.

History

L. 2019, c. 263, § 9, eff. Aug. 23, 2019.

58:10B-13. Use of nonresidential standards or other controls, requirements

a. When real property is remediated to a nonresidential soil remediation standard or

engineering or institutional controls are used in lieu of remediating a site to meet an established

remediation standard for soil, groundwater, or surface water, the person responsible for

conducting the remediation shall, as a condition of the use of that standard or control measure:

(1) implement any engineering or institutional controls the department requires to prevent

exposure to the contaminants, provide maintenance, as necessary, of those controls, and

provide for the restriction of the use of the property by the owner in a manner that prevents

exposure;

(2) with the consent of the owner of the real property, provide for the recording with the

office of the county recording officer, in the county in which the property is located, a notice

to inform prospective holders of an interest in the property that contamination exists on the

property at a level that may statutorily restrict certain uses of or access to all or part of that

property, a delineation of those restrictions, a description of all specific engineering or

institutional controls at the property that exist and that shall be maintained in order to prevent

exposure to contaminants remaining on the property, and the written consent to the notice by

the owner of the property. The notice shall be recorded in the same manner as are deeds and

other interests in real property. The department shall develop a uniform deed notice that

ensures the proper filing of the deed notice. The provisions of this paragraph do not apply to

restrictions on the use of surface water or groundwater;

(3) provide written notice to the governing body of each municipality in which the

property is located that contaminants will exist at the property above residential use soil

remediation standards or any other remediation standards and specifying the restrictions on

the use of or access to all or part of that property and of the specific engineering or

institutional controls at the property that exist and that shall be maintained;

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(4) post signs, as required by the department, at any location at the site where access is

restricted or in those areas that must be maintained in a prescribed manner, to inform persons

on the property that there are restrictions on the use of that property or restrictions on access

to any part of the site;

(5) maintain a list of the restrictions on site for inspection by governmental enforcement

officials; and

(6) prior to commencing a remedial action, notify, in writing, the governing body of each

municipality wherein the property being remediated is located. The notice shall include, but

not be limited to, the commencement date for the remedial action; the name, mailing address

and business telephone number of the person implementing the remedial action, or his

designated representative; and a brief description of the remedial action.

b. If the owner of the real property does not consent to the recording of a notice pursuant to

paragraph (2) of subsection a. of this section, the person responsible for conducting the

remediation shall implement a remedial action that meets the residential soil remediation

standard in the remediation of that real property.

c. Whenever engineering or institutional controls on property as provided in subsection a. of

this section are no longer required, or whenever the engineering or institutional controls are

changed because of the performance of subsequent remedial activities, a change in conditions at

the site, or the adoption of revised remediation standards, the department shall require that the

owner or operator of that property record with the office of the county recording officer a notice

that the use of the property is no longer restricted or delineating the new restrictions. The person

responsible for conducting the remediation shall notify, in writing, the municipality in which the

property is located of the removal or change of the restrictive use conditions.

d. The owner or lessee of any real property, or any person operating a business on real

property, which has been remediated to a nonresidential use soil remediation standard or on

which a remedial action that includes engineering or institutional controls for soil, groundwater,

or surface water has been implemented to protect the public health, safety, or the environment, as

applicable, shall maintain the engineering or institutional controls as required by the department.

An owner, lessee, or operator who takes any action that results in the improper alteration or

removal of engineering or institutional controls or who fails to maintain the engineering or

institutional controls as required by the department, shall be subject to the penalties and actions

set forth in section 22 of P.L.1976, c.141 (C.58:10-23.11u) and, where applicable, shall be liable

for any additional remediation and damages pursuant to the provisions of section 8 of P.L.1976,

c.141 (C.58:10-23.11g). The provisions of this subsection shall not apply if a notification

received pursuant to subsection c. of this section authorizes all restrictions or controls to be

removed from the subject property.

e. Notwithstanding the provisions of any other law, or any rule, regulation, or order adopted

pursuant thereto to the contrary, whenever contamination at a property is remediated in

compliance with all applicable soil, groundwater or surface water remediation standards that

were in effect or approved by the department at the completion of the remediation, no person,

BROWNFIELD ACT N.J.S.A. 58:10B

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except as otherwise provided in this section, shall be liable for the cost of any additional

remediation that may be required by a subsequent adoption by the department of a more stringent

remediation standard for a particular contaminant. Upon the adoption of a regulation that amends

a remediation standard, or where the adoption of a regulation would change a remediation

standard which was otherwise approved by the department, only a person who is liable to clean

up and remove that contamination pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g),

and who does not have a defense to liability pursuant to subsection d. of that section, shall be

liable for any additional remediation costs necessary to bring the site into compliance with the

new remediation standards except that no person shall be so liable unless the difference between

the new remediation standard and the level or concentration of a contaminant at the property

differs by an order of magnitude. The department may compel a person who is liable for the

additional remediation costs to perform additional remediation activities to meet the new

remediation standard except that a person may not be compelled to perform any additional

remediation activities on the site if that person can demonstrate that the existing engineering or

institutional controls on the site prevent exposure to the contamination and that the site remains

protective of public health, safety and the environment pursuant to section 35 of P.L.1993, c.139

(C.58:10B-12). The burden to prove that a site remains protective is on the person liable for the

additional remediation costs. A person liable for the additional remediation costs who is relying

on engineering or institutional controls to make a site protective, shall comply with the

provisions of subsections a., b., c. and d. of this section.

Nothing in the provisions of this subsection shall be construed to affect the authority of the

department, pursuant to subsection f. of this section, to require additional remediation on real

property where engineering controls were implemented.

Nothing in the provisions of this subsection shall limit the rights of a person, other than the

State, or any department or agency thereof, to bring a civil action for damages, contribution, or

indemnification as provided by statutory or common law.

f. Whenever the department approves or has approved, or a licensed site remediation

professional implements a remedial action that includes, the use of engineering controls for the

remediation of soil, groundwater, or surface water, to protect public health, safety or the

environment, the department may require additional remediation of that site only if the

engineering controls no longer are protective of public health, safety, or the environment.

g. Whenever the department approves or has approved, or a licensed site remediation

professional implements a remedial action that includes, the use of engineering or institutional

controls for the remediation of soil, groundwater, or surface water, to protect public health,

safety or the environment, the department shall inspect that site at least once every five years in

order to ensure that the engineering and institutional controls are being properly maintained and

that the controls remain protective of public health and safety and of the environment.

h. A property owner of a site on which a deed notice has been recorded shall notify any

person who intends to excavate on the site of the nature and location of any contamination

existing on the site and of any conditions or measures necessary to prevent exposure to

contaminants.

BROWNFIELD ACT N.J.S.A. 58:10B

Page 42 of 71

History

L. 1993, c. 139, § 36; amended 1997, c. 278, § 18, eff. Jan. 6, 1998; 2009, c. 60, § 48, eff.

Nov. 3, 2009.

58:10B-13.1. No further action letter; covenant not to sue

a. Whenever on or after October 16, 2009 the Department of Environmental Protection issues

a no further action letter pursuant to a remediation, the person responsible for conducting the

remediation shall be deemed by operation of law to have received a covenant not to sue with

respect to the real property upon which the remediation has been conducted. The covenant not to

sue shall be consistent with any conditions and limitations contained in the no further action

letter. The covenant not to sue shall be for any area of concern remediated and may apply to the

entire real property if the remediation included a preliminary assessment and, if necessary, a site

investigation of the entire real property, and any other necessary remedial actions. The covenant

remains effective only for as long as the real property for which the covenant was issued

continues to meet the conditions of the no further action letter. Upon a finding by the department

that real property or a portion thereof to which a covenant not to sue pertains, no longer meets

with the conditions of the no further action letter, the department shall provide notice of that fact

to the person responsible for maintaining compliance with the no further action letter. The

department may allow the person a reasonable time to come into compliance with the terms of

the original no further action letter. If the property does not meet the conditions of the no further

action letter and if the department does not allow for a period of time to come into compliance or

if the person fails to come into compliance within the time period, the covenant not to sue shall

be deemed to be revoked by operation of law.

Except as provided in subsection e. of this section, a covenant not to sue shall by operation of

law provide for the following, as applicable:

(1) a provision releasing the person who undertook the remediation from all civil liability

to the State to perform any additional remediation, to pay compensation for damage to, or

loss of, natural resources, for the restoration of natural resources in connection with the

discharge on the property or for any cleanup and removal costs;

(2) for a remediation that involves the use of engineering or institutional controls:

(a) a provision requiring the person, or any subsequent owner, lessee, or operator

during the person’s period of ownership, tenancy, or operation, to maintain those

controls, conduct periodic monitoring for compliance, and submit to the department, on a

biennial basis, a certification that the engineering and institutional controls are being

properly maintained and continue to be protective of public health and safety and of the

environment. The certification shall state the underlying facts and shall include the results

of any tests or procedures performed that support the certification; and

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(b) a provision that the covenant is revoked by operation of law if the engineering or

institutional controls are not being maintained or are no longer in place; and

(3) for a remediation that involves the use of engineering controls but not for any

remediation that involves the use of institutional controls only, a provision barring the person

or persons whom the covenant not to sue benefits, from making a claim against the New

Jersey Spill Compensation Fund and the Sanitary Landfill Facility Contingency Fund for any

costs or damages relating to the real property and remediation covered by the covenant not to

sue. The covenant not to sue shall not bar a claim by any person against the New Jersey Spill

Compensation Fund and the Sanitary Landfill Contingency Fund for any remediation that

involves only the use of institutional controls if, after a valid no further action letter has been

issued, the department orders additional remediation, except that the covenant shall bar such

a claim if the department ordered additional remediation in order to remove the institutional

control.

b. Unless a covenant not to sue issued under this section is revoked by the department, or by

operation of law, the covenant shall remain effective. The covenant not to sue shall apply to all

successors in ownership of the property and to all persons who lease the property or who engage

in operations on the property.

c. If a covenant not to sue is revoked, liability for any additional remediation shall not be

applied retroactively to any person for whom the covenant remained in effect during that

person’s ownership, tenancy, or operation of the property.

d. A covenant not to sue and the protections it affords shall not apply to any discharge that

occurs subsequent to the issuance of the no further action letter which was the basis of the

issuance of the covenant, nor shall a covenant not to sue and the protections it affords relieve any

person of the obligations to comply in the future with laws and regulations.

e. The covenant not to sue shall be deemed to apply to any person who obtains a no further

action letter as provided in subsection a. of this section. The covenant not to sue shall not provide

relief from any liability, either under statutory or common law, to any person who is liable for

cleanup and removal costs pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-

23.11g), and who does not have a defense to liability pursuant to subsection d. of that section.

(1) Except as provided in paragraphs (2) and (3) of this subsection, the department shall

not issue covenants not to sue after the issuance of licenses to site remediation professionals

pursuant to the provisions of section 12 of P.L.2009, c.60 (C.58:10C-12).

(2) The department may issue a covenant not to sue that is consistent with the provisions

of this section when it issues a no further action letter for a remediation of a discharge from

an unregulated heating oil tank.

(3) The department may issue a covenant not to sue as part of a settlement of litigation.

BROWNFIELD ACT N.J.S.A. 58:10B

Page 44 of 71

History

L. 1997, c. 278, § 6, eff. Jan. 6, 1998; amended 2001, c. 154, § 4, eff. July 13, 2001; 2005, c.

4, § 3, eff. Jan. 19, 2005; 2009, c. 60, § 49, eff. Nov. 3, 2009; 2009, c. 300, § 1, eff. Jan. 17,

2010, retroactive to Oct. 16, 2009.

58:10B-13.2. Covenant not to sue, provisions

a. After a licensed site remediation professional issues a response action outcome to the

person responsible for conducting the remediation, the person shall be deemed, by operation of

law, to have received a covenant not to sue with respect to the real property upon which the

remediation has been conducted. The covenant not to sue shall be subject to any conditions and

limitations contained in the response action outcome. The covenant not to sue shall be for any

area of concern remediated and may apply to the entire real property if the remediation included

a preliminary assessment and, if necessary, a site investigation of the entire real property, and

any other necessary remedial actions. The covenant remains effective only for as long as the real

property for which the covenant was deemed to have been issued continues to meet the

conditions of the response action outcome. Upon a finding by the department that real property

or a portion thereof to which a covenant not to sue pertains, no longer meets with the conditions

of the response action outcome, the department shall provide notice of that fact to the person

responsible for maintaining compliance with the response action outcome. The department may

allow the person a reasonable time to come into compliance with the terms of the original

response action outcome. If the property does not meet the conditions of the response action

outcome and if the department does not allow for a period of time to come into compliance or if

the person fails to come into compliance within the time period, the covenant not to sue shall be

deemed to be revoked by operation of law.

Except as provided in subsection e. of this section, a covenant not to sue shall by operation of

law provide for the following, as applicable:

(1) a provision releasing the person who undertook the remediation from all civil liability

to the State to perform any additional remediation, to pay compensation for damage to, or

loss of, natural resources, for the restoration of natural resources in connection with the

discharge on the property or for any cleanup and removal costs;

(2) for a remediation that involves the use of engineering or institutional controls:

a provision requiring the person, or any subsequent owner, lessee, or operator during

the person’s period of ownership, tenancy, or operation, to maintain those controls,

conduct periodic monitoring for compliance, and submit to the department, on a

biennial basis, a certification that the engineering and institutional controls are being

properly maintained and continue to be protective of public health and safety and of

the environment. The certification shall state the underlying facts and shall include

the results of any tests or procedures performed that support the certification; and

BROWNFIELD ACT N.J.S.A. 58:10B

Page 45 of 71

a provision that the covenant is revoked by operation of law if the engineering or