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OP/ED >> NEW JERSEY
Tools
for a Second Generation of Brownfield Sites
At the start of my tenure as Commissioner of the Department of Envi-ronmental Protection (DEP), New Jersey recognized the need to take brownfield reform to a new level. Initial efforts to encourage brownfield redevelopment simply were inadequate to deal with a “second generation” of brownfield sites — sites with more complex cleanup challenges or less marketability that we are seeking to clean up and redevelop in an economy less robust than when the brownfield effort began.
In under three years, we have put in place a suite of regulatory and financial tools that no other state can match. Through a ballot initiative, we established a constitutionally dedicated funding source for brownfield redevelopment, insulated from the annual appropriations process, which provided $100 million in the first year and will provide $20 million or more annually for brownfield redevelopment grants.
Through legislation, we expanded New Jersey’s unique provisions for cleanup cost reimbursement to include residential redevelopment. Through our Economic Development Authority, we established a bridge-loan program so that developers entitled to reimbursement can get their money up front in the redevelopment process. Through our Environmental Infrastructure Trust, we provided a new low-interest loan program that has sparked more than $100 million in initial interest.
These financial tools have been coupled with thoroughgoing regulatory reform to reconcile the sometimes-uncertain schedule of the cleanup process with the realities of the redevelopment market.
A new DEP office dedicated to brownfield reuse shepherds redevelopment projects more quickly through the process. Media-specific (e.g., soils-only) No Further Action letters (NFAs) allow development to proceed even if groundwater issues are still to be determined. Desig-nation of Brownfield Development Areas (BDAs) has accelerated redevelopment by coordinating work and targeting greater assistance where there are multiple brownfields in distressed areas that are in close proximity but owned by different parties.
Legislation signed in August provides an option for developers to “fast-track” land use permits in the areas presenting the greatest number of brownfield redevelopment opportunities.
These reforms have been reinforced with a targeted enforcement effort to accelerate the pace of responsible party cleanups. These reforms resolve liability for natural resource damages (NRD) that otherwise might discourage redevelopment of a site, and ensure that redevelopment in BDAs is not hampered by holdout owners who would rather mothball their site than step up to their cleanup obligations. In targeted cases, we are assisting municipalities and local improvement authorities using condemnation as a tool for redevelopment.
So why is Steve Picco, a dean of the New Jersey environmental bar and a trusted ally of mine in his role as the Vice-Chair of our Water Supply Authority, claiming that DEP has not lived up to the challenge of brownfields redevelopment?
Like all lawyers, Steve has to be just as unreasonable as his most unruly clients, which currently include a number of trade associations seeking to challenge our effort to resolve NRD claims. The rub is that many of the firms driving this suit are the very firms that hinder brownfield redevelopment by mothballing sites to avoid their cleanup and NRD obligations.
But what about Steve’s point that pursuing NRD claims will chill the climate for brownfield redevelopment because, he asserts, there is no “coherent strategy” for NRD in the brownfield context.
Here, Steve conveniently omits the fact that our policies on NRD and brownfield development have been clear and emphatic from the start: A new owner or developer who had nothing to do with the original contamination and is willing to take the cleanup steps to protect human health and the environment and secure an NFA will not be subject to an NRD claim. We are currently working with the legislature to remove any doubt on this point and to codify this very coherent policy principle into law.
Steve ably gives life to the urban myths and canards trumpeted by his current clients, but he has missed the big picture when it comes to the climate for brownfield redevelopment in New Jersey. That climate has never been better.
Bradley M. Campbell is Commissioner of the New Jersey Department of Environmental Protection. This article is in response to Steve Picco’s article in Volume 8, Issue 4.
Steve Picco’s article link here .
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