Case Study: Historic Fill and Residential Property Redevelopment - AskESA
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Case Study: Historic Fill and Residential Property Redevelopment

historic fill

Project Summary

ESA was contacted by the attorney of a residential property owner in Newark, New Jersey, who was receiving violation notices, warnings of potential NJDEP enforcement action, and NJDEP Site Remediation Program (SRP) fee notices. The property was previously operated for various industrial purposes and was redeveloped by others into nine separate residential parcels, each improved with a single-family home. All nine parcels were built on historic fill.

 

Challenges

During ESA’s initial conversation with the attorney, ESA learned that the original property had been purchased by a land developer and divided into nine individual parcels. As part of the sales contract, the land developer established itself as the Person Responsible for Conducting Remediation (PRCR) by the New Jersey Department of Environmental Protection (NJDEP). Prior to redevelopment, the PRCR conducted a series of environmental investigations and determined that the entire property was underlain by historic fill. Soil and groundwater impacts consistent with historic fill were confirmed across the property; therefore, each parcel was required to have individual Deed Notices (for soil) and Classification Exception Areas (CEA) for groundwater filed by the PRCR. The PRCR would then be required to conduct sampling and inspections and submit biennial certifications. However, the PRCR elected to ignore its requirements as established by the NJDEP, and Deed Notices and CEAs were never filed. As a result, the owner of one of the nine parcels received violation notices, warnings of potential NJDEP enforcement action, and NJDEP Site Remediation Program (SRP) fee notices for which they were not responsible.

 

Solution

ESA began by contacting the NJDEP Regional Enforcement Office located in Northern New Jersey, the office from which several letters of correspondence originated. ESA quickly determined that, due to years of no response by the PRCR to numerous NJDEP notices, the NJDEP randomly selected one of the nine property owners and changed the PRCR contact information to the owner as recorded on the deed for that parcel. As evident as this error seemed, correcting it proved difficult.

 

ESA made numerous phone calls to the NJDEP to rectify the error. Eventually, ESA was made aware of a newly implemented, yet unpublicized, enforcement effort that was directly related to our situation. Per the NJDEP Site Remediation Reform Act (SRRA), the developer of a distressed property who has confirmed obligations under SRRA and who redevelops a property into residential (single or multi-family), cannot pass its environmental requirements of sampling, inspection, and/or certification to another party of a sale. The responsibility to remain in compliance with the NJDEP and SRRA remains with the original responsible party. This situation is common in many coastal areas of New Jersey including Atlantic City, Edgewater, and Jersey City where former industrial properties have been converted into rental units.

 

Outcome

By delving deep into the SRRA, ESA had the NJDEP SRP contact information for the nine parcels changed back to the original PRCR. Consequently, ESA’s client could facilitate the sale of his client’s property after removing the environmental liability related to prior site operations. In addition, it requires the PRCR to formally establish Deed Notices and a CEA, conduct period inspections, and sample and certify that the protectiveness of the Deed Notices and CEA remain in place, thereby eliminating potential environmental exposure to occupants of the nine parcels.

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