New Jersey § 58:10b-13

§ 58:10b-13.

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; (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, 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.