The NJDEP has prepared many guidance documents for NJ LSRPs and others conducting site remediation in NJ. The Requirements for Remedial Actions Rendering Properties “Unusable” is a brief document that can have a significant effect on remediation of certain sites. The document is a draft posted on November 4, 2009.
A remediating party may evaluate contamination and determine that the best course of action is to render the property unusable and restrict the future use of the property forever. According to the document, remedial actions that may render the property unusable include, but are not limited to:
- treatment systems (wells and associated plumbing) that occupy greater than 20% of the developable land;
- interred material, capping systems or containment systems that present structural challenges/ impediments for greater than 20% of the developable land;
- remedial actions that result in 30% or greater slope over 20% or more of the developable land;
- remaining levels of contamination that impose regulatory limitations on site reuse, such as PCB contamination as subject to the federal Toxic Substances Control Act, or radioactive materials;
- remaining physical hazards, such as munitions and explosives of concern (MEC); and
- conditions that would result in an Immediate Environmental Concern (IEC) if the property is developed including, but not limited to, vapor intrusion issues that cannot be addressed with engineering controls, and acute contaminant concentrations.
For example, a site may have buried explosives that would require a significant risk and cost to remediate and make the property safe for future development. If the cost of this remediation would be higher than the value of the property, a remedial action may be chosen that would restrict the use of the site forever by using a Deed Restriction to prevent development of the site and a tall fence to restrict access to a dangerous situation. This remedy may be protective of human health and the environment and allowed by NJDEP regulations.
The guidance document does reserve the NJDEP’s rights by stating that, Under Section 47g (1) of the Site Remediation Reform Act, 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. The remediating party and the LSRP are required to ensure that the proposed remedial actions are also consistent with local and regional zoning rules as well as NJDEP regulations. In certain regions of New Jersey, for example, if the site is located within special resource or regional planning area such as the Pinelands, Meadowlands, Palisades, or Highlands, these additional requirements can be significant. Using a remedy that is protective of human health and the environment but renders the property unusable for development or recreational uses will automatically trigger a NJDEP audit and the NJDEP may invalidate a Response Action Outcome if all the required notifications and approvals from municipal or regional authorities are not properly in place.
In most instances, remediating contaminated Property so that it can be returned to productive use is the best alternative, but the ability to render a Property unusable for future use is a powerful tool for a limited number of cases.