Re: Institutional Controls - AG's comments

[Phyllis Bross <brossphy@law.dol.lps.state.nj.us>]

To the group:   This is not to be construed as a formal Attorney General
Opinion.  As a Deputy Attorney General representing NJDEP, I have been
involved in many cases where the placement of institutional controls
(including deed notices) has been performed as part of, or in lieu of,  site
remediation.  I also participated in the USEPA/ICMA March 1998 Expert
Forum on Institutional Controls, and am therefore familiar with some of
the issues surrounding the use of deed notices and other site controls.  It
appears that one of the most critical problems in the past with deed
notices (formerly known as declarations of environmental restriction)
had been the inability of prospective purchasers and other interested
persons to actually locate a notice.  For whatever reason, not only in
New Jersey but in other states as well, deed notices -  which serve
many important purposes, e.g.,  notification of the fact that hazardous
substances, although properly addressed, have been  left behind at a
site - were not always showing up during land record searches. 
Therefore, prospective owners sometimes found out only after
acqusition that their properties were the subject of an institutional
control.  That can be problematic because an owner needs to know
what is on his site, how he is permitted to use the property and what
maintenance or monitoring requirements are in place. As reflected in the
1998 Brownfield and Contaminated Site Remediation Act, NJDEP  and the
N.J. Legislature recognized the problem, and, pursuant to the statute,  a
deed notice - which must be in the form prepared by NJDEP (see
Brownfield Rule proposal 7/98) - is now to be recorded with the counties
in the same fashion as a deed.  Thus, once  counties  become more
familiar with deed notices as they index them and log them by whatever
effective methods they use for deeds and other recordable instruments, 
brownfield developers and others should be able to acquire, restore and
use properties which are subject to institutional controls with more
confidence concerning their condition. - DAG Phyllis E. Bross.