Site Remediation News May 2001 (Vol 13 N0 1) Article 07

A Reminder for New Landowners Interested in Asserting "Innocent Purchaser" Defense

By: Phyllis E. Bross, Deputy Attorney General

While the DEP assumes no role in the determination of whether a person’s defense to environmental liability will ultimately apply in any given situation, in the interest of promoting partnerships through effective government, and, as a way to demonstrate support for redeveloping and marketing brownfield sites in this State, the DEP is prepared to assist prospective purchasers in their efforts to limit liability.

On January 6, 1998, our Legislature provided a novel immediate third-party defense for a prospective purchaser that voluntarily enters into a DEP clean-up oversight document prior to taking ownership, N.J.S.A. 58:10-23.11g.f. Interested prospective owners may contact Jerry O’Donnell or Ralph Downs at (609)292- 2943 to apply for a Memorandum of Agreement (“MOA”) in that connection. Recognizing the importance of deadlines inherent in effectuating any land deal, Jerry and Ralph are ready to help applicants effectively and efficiently move through the “MOA” process.

Moreover, because this third-party innocent purchaser defense also requires, among other things, that the new owner provide DEP with reasonable site access within 10 days of acquisition of the property, DEP also is prepared to accept, and include in its public file, evidence of new owners’ access grants. Proof of access grants should be forwarded to Assistant Director Edward Putnam. Persons interested in asserting this defense must have given notice of any discharge to the DEP upon actual discovery. DEP suggests that any interested person also obtain legal review of N.J.S.A. 58:10-23.11g.f. Anyone may contact Terri Smith, DEP’s Brownfield Coordinator, at (609)292-1250 or Phyllis Bross, Deputy Attorney General, at (609)292-3214 for further assistance.

[End of Articles for Site Remediation News May 2001]

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