december 2003

New Jersey Department of Environmental Protection (“DEP”) September 2003 Policy Directive Announcing DEP Intention to Pursue Assessment of Natural Resource Damages (“NRDs”) at Many Sites Involved With the Remediation Program

BACKGROUND

DEP announced that it plans to begin the process of addressing more than 4,000 potential claims for NRDs. You may be subject to a claim for NRDs, if you are responsible under law for the discharge of a hazardous substance, which resulted in groundwater contamination, loss of impairment of ecological functions, or injury to or deprivation of natural resources. DEP is asking parties who are responsible for contamination to come forward voluntarily to settle any NRD claim now or risk the initiation of litigation.

DEP has decided to not pursue certain classes of responsible parties and injuries including:

Sites at which the only responsible parties are residential homeowners living at the sites.

Sites or claims for which the only responsible parties are small businesses with a limited ability to pay.

Sites where contamination is limited to soil.

Brownfield developers who qualify for the innocent purchaser defense under New Jersey's Spill Compensation and Control Act.

WE RECOMMEND

If you are proceeding with remediation activities you should contact a qualified environmental professional to calculate potential NRDs and make a determination whether to approach DEP in order to settle any potential claim. You must consider the potential affect of NRDs in negotiating real estate and business transactions, as well as in negotiating settlements of environmental disputes and insurance claims.

If you have questions concerning NRDS, please contact Jay A. Jaffe.