ENVIRONMENTAL
PRSRT STD
1810 Chapel Avenue West
Cherry Hill, NJ 08002-4609
ENVIRONMENTAL LAW PRACTICE GROUP
Janet S. Kole, Esq.
Chair, Environmental Law Practice Group
janet.kole@flastergreenberg.com
Albert M. Belmont, III, Esq.
albert.belmont@flastergreenberg.com
Carl S. Bisgaier, Esq.
carl.bisgaier@flastergreenberg.com
Jeffrey A. Cohen, Esq.
jeff.cohen@flastergreenberg.com
Peter M. Dolinger, Esq. *
p.dolinger@verizon.net
Mitchell H. Kizner, Esq.
mitchell.kizner@flastergreenberg.com
James A. Kozachek, Esq.
james.kozachek@flastergreenberg.com
PRACTICE AREAS
Bankruptcy • Business and Corporate Services • Closely-Held and Family Businesses • Commercial Litigation • Commercial Real Estate • Construction
Law • Employee Benefits • Employment and Labor Law • Environmental Law • Estate Planning and Administration • Family Law and Adoption •
Financial Work-Outs • Health Care • Land Use • Pension and Retirement Plans • Securities Regulation • Taxation • Technology and Emerging
Businesses • Trademark and Copyright Licensing and Protection
Franklin J. Riesenburger, Esq.
frank.riesenburger@flastergreenberg.com
Amy M. Trojecki, Esq.
amy.trojecki@flastergreenberg.com
Donna T. Urban, Esq.
donna.urban@flastergreenberg.com
Robert M. Washburn, Esq. *
robert.washburn@flastergreenberg.com
Frank H. Wisniewski, Esq.
frank.wisniewski@flastergreenberg.com
Jamie P. Yadgaroff, Esq.
jamie.yadgaroff@flastergreenberg.com
* Of Counsel
U.S. POSTAGE
PAID
Bellmawr, NJ
Permit No. 58
Return Service Requested
A Newsletter from the Environmental Law Practice Group
ENVIRONMENTAL SEMINARS
AT THE BUILDERS LEAGUE OF
SOUTH JERSEY (BLSJ)
Wednesday, June 22, 2005 -
“Environmental Site Assessments:
What You Don’t Know
Can Hurt You”
Flaster/Greenberg Environmental Law
Shareholder Janet S. Kole will examine
unexpected environmental problems that can
develop and actions builders can take to
prevent unwanted environmental liabilities.
Wednesday, September 28, 2005 -
“Brownfields”
Flaster/Greenberg Environmental Law
Shareholder Janet S. Kole will discuss the
scarcity of buildable land in New Jersey
and explain why increasing numbers of
developers and builders are turning to
Brownfields redevelopment.
The cost to attend each seminar is $25.
To register, call BLSJ at 856-616-8460.
Copyright © 2005
LAW
REPORT
Editor’s Note…
For New Jersey
environmental
attorneys and their
clients, 2005 may
prove to be an
interesting year for
several reasons. For
example, we don’t
Janet S. Kole know if New
Jersey’s push to
recover Natural Resource Damages will
continue. We don’t know if the state
Highlands legislation will have a major
impact on development in the state, or if
the state’s “fast-track” bill to allow
development in other regions will ever
go into effect, at least as the bill now
stands, with an executive order currently
holding its execution in limbo.
The United States Supreme Court
just threw voluntary Superfund cleanups
into disarray, with its recent decision,
Cooper Industries Inc. v. Aviall Services, Inc.
True, we can’t predict whether
getting permits for building will be
harder in New Jersey, or whether
voluntary cleanups will continue to be
supported by federal and state laws. But
we can stay on top of these develop-
ments and make sure our clients have
the benefit of our wisdom. At
Flaster/Greenberg, we’re dedicated to
helping clients achieve their business
goals, whether it’s building houses,
building industrial establishments, or
redeveloping contaminated sites. The
Environmental Law Report is produced to
keep you informed about critical issues
and their impact on your business.
This report is for general use and information, and
the content should not be interpreted as rendering
legal advice on any matter. Specific situations may raise
additional or different issues and such information
should be coordinated with professional legal advice.
WINTER 2005
NJ’s UST Fund Available to Qualifying
Businesses for Environmental Cleanup
BY AMY M. TROJECKI, ESQ.*
New Jersey has a funding source for cleanup of leaking under-
ground storage tanks (“USTs”). The UST Fund can often be a quicker
and less expensive source of recovery for those dealing with contami-
nation caused by a leaking UST than other sources of recovery that are
commonly tapped. Typically, owners or operators of a contaminated
site seek to recover cleanup costs via litigation from other potentially
responsible parties (“PRPs”), including former owners or operators
of the site, neighboring property owners, or operators of a business whose contamination
might have migrated onto the site. Property owners and/or operators also frequently
seek recovery from their own insurance carriers—again, often winding up in court. The
UST Fund provides another alternative to certain qualified owners and/or operators of
contaminated sites.
Under New Jersey law, owners or operators of sites with leaking USTs are responsible
for cleaning up resulting soil and groundwater contamination even if they are not at fault.
Cleaning up soil and groundwater contamination caused by a leaking UST is a very expen-
sive and time-consuming endeavor. Recognizing that owners and/or operators of these
contaminated sites often do not have sufficient funds to remediate the contamination, in
August 1997, the New Jersey legislature established the Petroleum Underground Storage
Tank Remediation, Upgrade & Closure Fund (“UST Fund”). N.J.S.A. 58:10A-37.1 et seq.
Administered jointly by the DEP and the New Jersey Economic Development Authority, the
UST Fund provides financial assistance in the form of grants or loans to eligible owners or
operators for the closure of a regulated UST or the remediation necessary as a result of a
discharge of a hazardous substance from either a regulated or an unregulated UST.1
N.J.S.A. 58:10A-37.4(a). The UST Fund is especially attractive to small businesses that plan
to use the property in the same manner after the UST closure or remediation as before.
There are different statutory criteria and restrictions depending on whether the site is
used for residential or commercial purposes. This article details the general requirements for
obtaining either grants or loans from the UST Fund for commercial properties.
USTs used by commercial entities to store petroleum products except heating oil are
regulated by the State and must be formally closed in accordance with DEP regulations. Up
to $500,000 per site in grant money and $2,000,000 per site in loan money from the UST
Fund can be used by businesses to formally close USTs or remediate contamination caused
by a discharge of petroleum products from the USTs (see sidebar on page 3 for eligibility
requirements).
(Continued on page 3)
* Amy M. Trojecki is an attorney in Flaster/Greenberg’s Environmental Law Practice Group.
Environmental Law Report • Flaster/Greenberg P.C.
 2 3
What Will the NJ Supreme Court Do Regarding Public Access
to Private Beaches?
BY DONNA T. URBAN, ESQ. AND
JENNIFER SIMON*
In a case that impacts developers and
private owners of beachfront properties, the
New Jersey appellate court ruled that a private
beach club cannot prevent the public from
entering its beach to gain access to the fore-
Donna T. Urban
shore or from using the beach area for inter-
mittent recreational purposes. Raleigh Avenue Beach Association v.
Atlantis Beach Club, 370 N.J. Super. 171 (App. Div. 2004).
New Jersey Beaches and the Public Trust
Doctrine
Beachfront property has become an increasingly valuable com-
modity as undeveloped property becomes more and more scarce.
Although much of New Jersey’s coastline is bordered by privately
owned homes and hotels, it is a well-settled principle (dating back
to the Roman Empire) that the public has an irrevocable right to
use the ocean and beach areas. This principle has formed the basis of
New Jersey’s public trust doctrine, which provides that submerged
lands are held in trust by the state for the public use and benefit.
In 1984, the New Jersey Supreme Court extended the
application of the public trust doctrine from publicly owned to pri-
vately owned beaches. In Matthews v. Bay Head Improvement
Ass’n, 95 N.J. 306 (1984), the court held that property owners
who provide services ordinarily provided by a municipality must
allow the public access to the dry sand areas, subject to an accom-
modation of the interests of the owner. However, the court did not
address whether the public could access privately owned beaches
when the owners did not provide municipality-type services. That
question, at least for now, has been answered “yes.”
Facts and Issues in Atlantis
Known as Diamond Beach, the Atlantis Beach Club owns
beachfront property in Lower Township, New Jersey. Beginning in
1996, Atlantis began to limit access to its property by, among other
things, charging seasonal membership fees and posting no trespass-
ing signs. This was directed at non-members, including residents of
the neighboring properties who continued to cross its beach.
Atlantis then filed suit against adjacent property owners to prevent
them from entering onto Atlantis property. The adjacent property
owners, in turn, formed the Raleigh Avenue Beach Association
(“RABA”) and sued Atlantis, seeking access to its property under
the public trust doctrine.
The Chancery Court found that the Atlantis properties were
subject to the public trust doctrine, but limited access for the pur-
pose of entering or exiting the ocean to a three-foot strip of the dry
sand area. The court also precluded public use of the boardwalk
path, but required an access path from the street. Joined in by the
RABA, the State of New Jersey appealed on the grounds that the
Environmental Law Report • Flaster/Greenberg P.C.
Chancery Court’s definition of public access violated the public
trust doctrine.
The Appellate Division’s Decision and Impact
The central issue on appeal was whether and to what extent a
private beach owner can restrict the public’s right of access to the
beach and ocean property. Ancillary issues involved the permissibil-
ity and reasonableness of Atlantis’ fees. The Appellate Division
reversed that portion of the Chancery Division’s order that limited
the public’s right to access and intermittent use of the beach for
recreational activities, finding Atlantis’ attempts to limit access
“hostile to the public trust doctrine.” The court also found
Atlantis’ membership fees to be unreasonable: that Atlantis was in
essence acting as a public trustee of the beachfront area and, there-
fore, could not profit from beach use fees.
Somewhat unique to this case, Lower Township does not pro-
vide any beach services nor does it own or maintain any beaches
along the Atlantic Ocean. Consequently, those wishing to use
ocean waterfront in Lower Township have no option but to use
privately owned beaches. Moreover, there was no evidence that the
public’s intermittent recreational use of the property would inter-
fere with Atlantis’ ability to service its members. Importantly, the
Court rejected Atlantis’ argument that it is entitled to use its land
to generate profit by providing an exclusive place for its paying
clientele, stating “[e]xclusivity is not a valid reason for limiting use
or access.”
The court noted that the extent to which privately owned
beaches should be made available for public use is dependent on
the circumstances, including:
• the location of the dry sand area in relation to the foreshore
• the extent and availability of publicly-owned upland sand area
• the nature and extent of the public demand
• usage of upland sand land by the owner.
Although the public’s right to access of private beaches is case
specific, the impact of this decision on private owners and developers
of beachfront properties is significant. The fact that the beaches are
exclusive and private is what attracts buyers in the first place. Yet,
beachfront property owners can no longer be assured control over
the use of their property. In contrast, certain environmentalists and
citizens’ groups scored a victory against private owners who seek to
exclude the public from the use of what they view as
property held for the public benefit. This issue, however, is far from
over as Atlantis has taken this case to the State Supreme Court.
Whatever the Court rules, a future edition of the Environmental
Law Report will cover this matter when it occurs. ◆
* Donna T. Urban is an attorney in Flaster/Greenberg’s Environmental
Department. Jennifer Simon is a law clerk who will join the firm full time
in the fall of 2005.
NJ’s UST Fund Available to Qualifying
Businesses for Environmental Cleanup
(CONTINUED FROM PAGE 1)
There are other important factors to consider when seeking a
grant, as opposed to a loan. For a business to qualify for a grant,
USTs must have been continually owned or operated since
December 1, 2002. In addition, UST Fund grants awarded to
businesses will constitute a lien on the property. Importantly, a
business will have to repay the entire amount of the grant if the
property is sold within eleven years of receiving the funding or if
the property is not used in the same manner as it was used prior to
the UST closure or remediation, unless the DEP authorizes a dif-
ferent use. If the property is sold between year 11 and 15, the grant
repayment is reduced 20% each year.
There are four requirements for a business applicant to be
eligible for financial assistance from the UST Fund:
• The UST must not have been removed or closed before
December 22, 1988.
• The owner and/or operator of the business must not
own or operate more than nine USTs in New Jersey at
the time of filing the application with the UST Fund.
• All USTs at the site must be properly registered.
• Businesses must have a net worth of less than $2,000,000
and demonstrate the inability to qualify for and obtain a
commercial loan. Sole proprietors must also have a tax-
able income of $200,000 or less and a net worth, exclu-
sive of the homeowner’s primary residence and pension,
of less than $200,000, in order to be eligible for a grant.
Office Locations
Applications for financial assistance for closure and remediation Commerce Center
of a regulated tank must be filed by June 30, 2005 and application 1810 Chapel Avenue West
Cherry Hill, NJ 08002-4609
complete and fee received by December 31, 2005. In the case of a
856-661-1900
previously unknown regulated tank that is not operational, applica-
tions for closure or remediation must be filed by 18 months after 11 Penn Center
the date of discovery of the regulated tank or 18 months from 1818 Market Street, Suite 3402
August 15, 2003, whichever is later. Philadelphia, PA 19103
For more information about NJ’s UST Fund or other matters 215-569-1022
of environmental law, call Flaster/Greenberg P.C. at 856.661.1900 190 S. Main Road
or visit our web site at www.flastergreenberg.com to contact one of Vineland, NJ 08360
our attorneys. ◆ 856-691-6200
1
In the past, eligible owners and operators could apply for financial
assistance from the UST Fund to upgrade a regulated tank, but the appli- 216 North Avenue
Cranford, NJ 07016
cation deadline for such funding has expired and monies are no longer
available for this purpose. 908-245-8021
2900 Fire Road, Suite 102A
Egg Harbor Township, NJ 08234
609-645-1881
913 North Market Street, Suite 702
Wilmington, DE 19801
302-351-1910
www.flastergreenberg.com
 2 3
What Will the NJ Supreme Court Do Regarding Public Access
to Private Beaches?
BY DONNA T. URBAN, ESQ. AND
JENNIFER SIMON*
In a case that impacts developers and
private owners of beachfront properties, the
New Jersey appellate court ruled that a private
beach club cannot prevent the public from
entering its beach to gain access to the fore-
Donna T. Urban
shore or from using the beach area for inter-
mittent recreational purposes. Raleigh Avenue Beach Association v.
Atlantis Beach Club, 370 N.J. Super. 171 (App. Div. 2004).
New Jersey Beaches and the Public Trust
Doctrine
Beachfront property has become an increasingly valuable com-
modity as undeveloped property becomes more and more scarce.
Although much of New Jersey’s coastline is bordered by privately
owned homes and hotels, it is a well-settled principle (dating back
to the Roman Empire) that the public has an irrevocable right to
use the ocean and beach areas. This principle has formed the basis of
New Jersey’s public trust doctrine, which provides that submerged
lands are held in trust by the state for the public use and benefit.
In 1984, the New Jersey Supreme Court extended the
application of the public trust doctrine from publicly owned to pri-
vately owned beaches. In Matthews v. Bay Head Improvement
Ass’n, 95 N.J. 306 (1984), the court held that property owners
who provide services ordinarily provided by a municipality must
allow the public access to the dry sand areas, subject to an accom-
modation of the interests of the owner. However, the court did not
address whether the public could access privately owned beaches
when the owners did not provide municipality-type services. That
question, at least for now, has been answered “yes.”
Facts and Issues in Atlantis
Known as Diamond Beach, the Atlantis Beach Club owns
beachfront property in Lower Township, New Jersey. Beginning in
1996, Atlantis began to limit access to its property by, among other
things, charging seasonal membership fees and posting no trespass-
ing signs. This was directed at non-members, including residents of
the neighboring properties who continued to cross its beach.
Atlantis then filed suit against adjacent property owners to prevent
them from entering onto Atlantis property. The adjacent property
owners, in turn, formed the Raleigh Avenue Beach Association
(“RABA”) and sued Atlantis, seeking access to its property under
the public trust doctrine.
The Chancery Court found that the Atlantis properties were
subject to the public trust doctrine, but limited access for the pur-
pose of entering or exiting the ocean to a three-foot strip of the dry
sand area. The court also precluded public use of the boardwalk
path, but required an access path from the street. Joined in by the
RABA, the State of New Jersey appealed on the grounds that the
Environmental Law Report • Flaster/Greenberg P.C.
Chancery Court’s definition of public access violated the public
trust doctrine.
The Appellate Division’s Decision and Impact
The central issue on appeal was whether and to what extent a
private beach owner can restrict the public’s right of access to the
beach and ocean property. Ancillary issues involved the permissibil-
ity and reasonableness of Atlantis’ fees. The Appellate Division
reversed that portion of the Chancery Division’s order that limited
the public’s right to access and intermittent use of the beach for
recreational activities, finding Atlantis’ attempts to limit access
“hostile to the public trust doctrine.” The court also found
Atlantis’ membership fees to be unreasonable: that Atlantis was in
essence acting as a public trustee of the beachfront area and, there-
fore, could not profit from beach use fees.
Somewhat unique to this case, Lower Township does not pro-
vide any beach services nor does it own or maintain any beaches
along the Atlantic Ocean. Consequently, those wishing to use
ocean waterfront in Lower Township have no option but to use
privately owned beaches. Moreover, there was no evidence that the
public’s intermittent recreational use of the property would inter-
fere with Atlantis’ ability to service its members. Importantly, the
Court rejected Atlantis’ argument that it is entitled to use its land
to generate profit by providing an exclusive place for its paying
clientele, stating “[e]xclusivity is not a valid reason for limiting use
or access.”
The court noted that the extent to which privately owned
beaches should be made available for public use is dependent on
the circumstances, including:
• the location of the dry sand area in relation to the foreshore
• the extent and availability of publicly-owned upland sand area
• the nature and extent of the public demand
• usage of upland sand land by the owner.
Although the public’s right to access of private beaches is case
specific, the impact of this decision on private owners and developers
of beachfront properties is significant. The fact that the beaches are
exclusive and private is what attracts buyers in the first place. Yet,
beachfront property owners can no longer be assured control over
the use of their property. In contrast, certain environmentalists and
citizens’ groups scored a victory against private owners who seek to
exclude the public from the use of what they view as
property held for the public benefit. This issue, however, is far from
over as Atlantis has taken this case to the State Supreme Court.
Whatever the Court rules, a future edition of the Environmental
Law Report will cover this matter when it occurs. ◆
* Donna T. Urban is an attorney in Flaster/Greenberg’s Environmental
Department. Jennifer Simon is a law clerk who will join the firm full time
in the fall of 2005.
NJ’s UST Fund Available to Qualifying
Businesses for Environmental Cleanup
(CONTINUED FROM PAGE 1)
There are other important factors to consider when seeking a
grant, as opposed to a loan. For a business to qualify for a grant,
USTs must have been continually owned or operated since
December 1, 2002. In addition, UST Fund grants awarded to
businesses will constitute a lien on the property. Importantly, a
business will have to repay the entire amount of the grant if the
property is sold within eleven years of receiving the funding or if
the property is not used in the same manner as it was used prior to
the UST closure or remediation, unless the DEP authorizes a dif-
ferent use. If the property is sold between year 11 and 15, the grant
repayment is reduced 20% each year.
There are four requirements for a business applicant to be
eligible for financial assistance from the UST Fund:
• The UST must not have been removed or closed before
December 22, 1988.
• The owner and/or operator of the business must not
own or operate more than nine USTs in New Jersey at
the time of filing the application with the UST Fund.
• All USTs at the site must be properly registered.
• Businesses must have a net worth of less than $2,000,000
and demonstrate the inability to qualify for and obtain a
commercial loan. Sole proprietors must also have a tax-
able income of $200,000 or less and a net worth, exclu-
sive of the homeowner’s primary residence and pension,
of less than $200,000, in order to be eligible for a grant.
Office Locations
Applications for financial assistance for closure and remediation Commerce Center
of a regulated tank must be filed by June 30, 2005 and application 1810 Chapel Avenue West
Cherry Hill, NJ 08002-4609
complete and fee received by December 31, 2005. In the case of a
856-661-1900
previously unknown regulated tank that is not operational, applica-
tions for closure or remediation must be filed by 18 months after 11 Penn Center
the date of discovery of the regulated tank or 18 months from 1818 Market Street, Suite 3402
August 15, 2003, whichever is later. Philadelphia, PA 19103
For more information about NJ’s UST Fund or other matters 215-569-1022
of environmental law, call Flaster/Greenberg P.C. at 856.661.1900 190 S. Main Road
or visit our web site at www.flastergreenberg.com to contact one of Vineland, NJ 08360
our attorneys. ◆ 856-691-6200
1
In the past, eligible owners and operators could apply for financial
assistance from the UST Fund to upgrade a regulated tank, but the appli- 216 North Avenue
Cranford, NJ 07016
cation deadline for such funding has expired and monies are no longer
available for this purpose. 908-245-8021
2900 Fire Road, Suite 102A
Egg Harbor Township, NJ 08234
609-645-1881
913 North Market Street, Suite 702
Wilmington, DE 19801
302-351-1910
www.flastergreenberg.com

1810 Chapel Avenue West
Cherry Hill, NJ 08002-4609
ENVIRONMENTAL LAW PRACTICE GROUP
Janet S. Kole, Esq.
Chair, Environmental Law Practice Group
janet.kole@flastergreenberg.com
Albert M. Belmont, III, Esq.
albert.belmont@flastergreenberg.com
Carl S. Bisgaier, Esq.
carl.bisgaier@flastergreenberg.com
Jeffrey A. Cohen, Esq.
jeff.cohen@flastergreenberg.com
Peter M. Dolinger, Esq. *
p.dolinger@verizon.net
Mitchell H. Kizner, Esq.
mitchell.kizner@flastergreenberg.com
James A. Kozachek, Esq.
james.kozachek@flastergreenberg.com
PRACTICE AREAS
Bankruptcy • Business and Corporate Services • Closely-Held and Family Businesses • Commercial Litigation • Commercial Real Estate • Construction
Law • Employee Benefits • Employment and Labor Law • Environmental Law • Estate Planning and Administration • Family Law and Adoption •
Financial Work-Outs • Health Care • Land Use • Pension and Retirement Plans • Securities Regulation • Taxation • Technology and Emerging
Businesses • Trademark and Copyright Licensing and Protection
Franklin J. Riesenburger, Esq.
frank.riesenburger@flastergreenberg.com
Amy M. Trojecki, Esq.
amy.trojecki@flastergreenberg.com
Donna T. Urban, Esq.
donna.urban@flastergreenberg.com
Robert M. Washburn, Esq. *
robert.washburn@flastergreenberg.com
Frank H. Wisniewski, Esq.
frank.wisniewski@flastergreenberg.com
Jamie P. Yadgaroff, Esq.
jamie.yadgaroff@flastergreenberg.com
* Of Counsel
PRSRT STD
U.S. POSTAGE
PAID
Bellmawr, NJ
Permit No. 58
Return Service Requested
A Newsletter from the Environmental Law Practice Group
ENVIRONMENTAL SEMINARS
AT THE BUILDERS LEAGUE OF
SOUTH JERSEY (BLSJ)
Wednesday, June 22, 2005 -
“Environmental Site Assessments:
What You Don’t Know
Can Hurt You”
Flaster/Greenberg Environmental Law
Shareholder Janet S. Kole will examine
unexpected environmental problems that can
develop and actions builders can take to
prevent unwanted environmental liabilities.
Wednesday, September 28, 2005 -
“Brownfields”
Flaster/Greenberg Environmental Law
Shareholder Janet S. Kole will discuss the
scarcity of buildable land in New Jersey
and explain why increasing numbers of
developers and builders are turning to
Brownfields redevelopment.
The cost to attend each seminar is $25.
To register, call BLSJ at 856-616-8460.
Copyright © 2005
ENVIRONMENTAL
LAW
REPORT
Editor’s Note…
For New Jersey
environmental
attorneys and their
clients, 2005 may
prove to be an
interesting year for
several reasons. For
example, we don’t
Janet S. Kole know if New
Jersey’s push to
recover Natural Resource Damages will
continue. We don’t know if the state
Highlands legislation will have a major
impact on development in the state, or if
the state’s “fast-track” bill to allow
development in other regions will ever
go into effect, at least as the bill now
stands, with an executive order currently
holding its execution in limbo.
The United States Supreme Court
just threw voluntary Superfund cleanups
into disarray, with its recent decision,
Cooper Industries Inc. v. Aviall Services, Inc.
True, we can’t predict whether
getting permits for building will be
harder in New Jersey, or whether
voluntary cleanups will continue to be
supported by federal and state laws. But
we can stay on top of these develop-
ments and make sure our clients have
the benefit of our wisdom. At
Flaster/Greenberg, we’re dedicated to
helping clients achieve their business
goals, whether it’s building houses,
building industrial establishments, or
redeveloping contaminated sites. The
Environmental Law Report is produced to
keep you informed about critical issues
and their impact on your business.
This report is for general use and information, and
the content should not be interpreted as rendering
legal advice on any matter. Specific situations may raise
additional or different issues and such information
should be coordinated with professional legal advice.
WINTER 2005
NJ’s UST Fund Available to Qualifying
Businesses for Environmental Cleanup
BY AMY M. TROJECKI, ESQ.*
New Jersey has a funding source for cleanup of leaking under-
ground storage tanks (“USTs”). The UST Fund can often be a quicker
and less expensive source of recovery for those dealing with contami-
nation caused by a leaking UST than other sources of recovery that are
commonly tapped. Typically, owners or operators of a contaminated
site seek to recover cleanup costs via litigation from other potentially
responsible parties (“PRPs”), including former owners or operators
of the site, neighboring property owners, or operators of a business whose contamination
might have migrated onto the site. Property owners and/or operators also frequently
seek recovery from their own insurance carriers—again, often winding up in court. The
UST Fund provides another alternative to certain qualified owners and/or operators of
contaminated sites.
Under New Jersey law, owners or operators of sites with leaking USTs are responsible
for cleaning up resulting soil and groundwater contamination even if they are not at fault.
Cleaning up soil and groundwater contamination caused by a leaking UST is a very expen-
sive and time-consuming endeavor. Recognizing that owners and/or operators of these
contaminated sites often do not have sufficient funds to remediate the contamination, in
August 1997, the New Jersey legislature established the Petroleum Underground Storage
Tank Remediation, Upgrade & Closure Fund (“UST Fund”). N.J.S.A. 58:10A-37.1 et seq.
Administered jointly by the DEP and the New Jersey Economic Development Authority, the
UST Fund provides financial assistance in the form of grants or loans to eligible owners or
operators for the closure of a regulated UST or the remediation necessary as a result of a
discharge of a hazardous substance from either a regulated or an unregulated UST.1
N.J.S.A. 58:10A-37.4(a). The UST Fund is especially attractive to small businesses that plan
to use the property in the same manner after the UST closure or remediation as before.
There are different statutory criteria and restrictions depending on whether the site is
used for residential or commercial purposes. This article details the general requirements for
obtaining either grants or loans from the UST Fund for commercial properties.
USTs used by commercial entities to store petroleum products except heating oil are
regulated by the State and must be formally closed in accordance with DEP regulations. Up
to $500,000 per site in grant money and $2,000,000 per site in loan money from the UST
Fund can be used by businesses to formally close USTs or remediate contamination caused
by a discharge of petroleum products from the USTs (see sidebar on page 3 for eligibility
requirements).
(Continued on page 3)
* Amy M. Trojecki is an attorney in Flaster/Greenberg’s Environmental Law Practice Group.
Environmental Law Report • Flaster/Greenberg P.C.