Legislative Challenge Case Study
One of our clients applied for an “Innocent Party Grant” to clean up property on which it had conducted business for many years. The client was a small business and the principals were retiring. The client found a buyer and sold the property before they completed their grant application. The environmental investigation began and remediation costs began to escalate. We were retained at that point, to help the client obtain the grant, but the New Jersey Economic Development Authority and the New Jersey Department of Environmental Protection took the position that because the client no longer owned the property, they were not entitled to the grant, even though they were still responsible for the clean-up.
We persuaded the Appellate Division to invalidate a regulation promulgated by the New Jersey Economic Development Authority that restricted eligibility to receive an “Innocent Party Grant” to parties who still held title to the property throughout the grant application process, on the grounds that the restriction was not authorized by the terms of the enabling Statute, the Brownfield and Contaminated Site Remediation Act, and that the restriction was neither fair nor reasonable. See TAC Associates v. NJDEP, 408 N.J. Super. 117, 973 A.2d 969 (App. Div. 2009).
Although the Legislature quickly amended the Statute after that decision, and the Supreme Court determined that the amendment applied retroactively to our client, see TAC Associates v. NJDEP, 2010 Lexis 592 (N.J. July 15, 2010), we nevertheless negotiated a favorable outcome for our client as a result of the appeal, and DEP agreed to issue a no further action letter for the property.