New Jersey Administrative Code
Title 7 - ENVIRONMENTAL PROTECTION
Chapter 26F - HEATING OIL TANK SYSTEM REMEDIATION RULES
Appendix A - MODEL DEED NOTICE
______________________
Instrument Number
DEED NOTICE
This shell document contains blanks and matter in brackets []. These blanks shall be replaced with the required site information prior to recording.
Matter bracketed [] is not intended for deletion, but rather is intended to be descriptive of the variable information that may be contained in the final document.
IN ACCORDANCE WITH THE BROWNFIELD AND CONTAMINATED SITE REMEDIATION ACT, N.J.S.A. 58:10B-13, THIS DOCUMENT IS TO BE RECORDED IN THE SAME MANNER AS ARE DEEDS AND OTHER INTERESTS IN REAL PROPERTY.
Prepared by: _____________________________________
[Signature]
________________________________________________
[Print name below signature]
Recorded by: _____________________________________
[Signature, Officer of County Recording Office]
________________________________________________
[Print name below signature]
DEED NOTICE
This Deed Notice is made as of the _____ day of _____, ____, by [Insert the full legal name and address of each current property owner] (together with his/her/its/their successors and assigns, collectively "Owner").
1. THE PROPERTY. [Insert the full legal name and address of each current property owner] [Insert as appropriate: "is" or "are"] the owner in fee simple of certain real property designated as Block(s) _____ Lot(s) _____, on the tax map of the [Insert, as appropriate: City/Borough/Township/Town] of [Insert the name of municipality], [Insert the name of county] County; the New Jersey Department of Environmental Protection Program Interest Number (Preferred ID) for the contaminated site which includes this property is [Insert the Program Interest Number (Preferred ID)]; and the property is more particularly described in Exhibit A, which is attached hereto and made a part hereof (the "Property").
2. SOIL CONTAMINATION. [Insert the full legal name of the owner of the heating oil tank system] has remediated contaminated soil at the Property. However, residual contamination that contains contaminants in concentrations that do not allow for the unrestricted use of the Property remains at certain areas of the Property that is not accessible because it is currently located under the following existing engineering control(s): [Pick as applicable: a building, a paved area, or a capped easement (for example, a sidewalk containing utilities)]. Such soil contamination, including the type, concentration and specific location, and the existing engineering control(s) on the site are described in Exhibit B, which is attached hereto and made a part hereof. As a result, there is a statutory requirement for this Deed Notice and engineering controls in accordance with the Brownfield and Contaminated Site Remediation Act at N.J.S.A. 58:10B-13.
3. CONSIDERATION. In order to obtain approval of the remedial action for the remediation of a discharge from the heating oil tank system, and in consideration of the terms and conditions of that approval, and other good and valuable consideration, Owner has agreed to subject the Property to certain statutory and regulatory requirements that impose restrictions upon the use of the Property, to restrict certain uses of the Property, and to provide notice to subsequent owners, lessors, lessees, and operators of the Property of the restrictions outlined in this Deed Notice and required by law, as set forth herein.
4A. RESTRICTED AREAS. Due to the presence of residual contamination remaining at concentrations that do not allow for unrestricted use, the Owner has agreed, as part of the remedial action for the Property, to restrict the use of certain parts of the Property that contain the residual contamination (the "Restricted Areas"); a narrative description of these restrictions is provided in Exhibit B, which is attached hereto and made a part hereof.
4B. RESTRICTED LAND USES. The Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-12g(10), prohibits the conversion of a contaminated site, remediated to non-residential soil remediation standards that require the maintenance of engineering or institutional controls, to a child care facility, or public, private, or charter school without the Department's prior written approval, unless a presumptive remedy is implemented pursuant to the Technical Requirements for Site Remediation at N.J.A.C. 7:26E-5.3.
4C. ENGINEERING CONTROLS. Due to the presence and concentration of these contaminants, the Owner has also agreed, as part of the remedial action for the Property, to maintain engineering controls on the Property as described in Exhibit B.
5A. CHANGE IN OWNERSHIP AND REZONING.
i. The Owner and the subsequent owners, lessors, and lessees, shall cause all leases, grants, and other written transfers of an interest in the Restricted Areas to contain a provision expressly requiring all holders thereof to take the Property subject to the restrictions contained herein and to comply with all, and not to violate any, of the conditions of this Deed Notice. Nothing contained in this Paragraph shall be construed as limiting any obligation of any person to provide any notice required by any law, regulation, or order of any governmental authority.
ii. The Owner or the subsequent owner shall provide written notice to the Department of Environmental Protection within 30 calendar days after the Owner's or subsequent owner's petition for or filing of any document initiating a rezoning of the Property to be used as a child care facility, or public, private, or charter school.
5B. SUCCESSORS AND ASSIGNS. This Deed Notice shall be binding upon Owner and upon Owner's successors and assigns, and subsequent owners, lessors, lessees, and operators while each is an owner, lessor, lessee, or operator of the Property.
6A. ALTERATIONS, IMPROVEMENTS, AND DISTURBANCES.
i. The Owner and all subsequent owners, lessors, and lessees shall notify any person, including, without limitation, tenants, employees of tenants, and contractors, intending to conduct invasive work or excavate within the Restricted Areas, of the nature and location of contamination in the Restricted Areas, and, of the precautions necessary to minimize potential human exposure to contaminants.
ii. The Owner and all subsequent owners, lessors, and lessees shall restore any disturbance of an engineering control to pre-disturbance conditions within 60 calendar days after the initiation of the alteration, improvement, or disturbance, unless the Department approves, in writing, a period of time exceeding 60 calendar days.
iii. Except as provided in Paragraph 6B below, no person shall make, or allow to be made, any alteration, improvement, or disturbance in, to, or about the Property that disturbs any engineering control at the Property without first obtaining the Department's written permission for the alteration, improvement, or disturbance, unless the person restores the engineering control to pre-disturbance conditions within 60 calendar days.
6B. EMERGENCIES. In the event of an emergency which presents, or may present, an unacceptable risk to the public health and safety, or to the environment, or an immediate environmental concern, see the Site Remediation Reform Act at N.J.S.A. 58:10C-2, any person may temporarily breach an engineering control provided that that person complies with each of the following:
i. Immediately notifies the Department of Environmental Protection of the emergency, by calling the Department Hotline at 1-877-WARNDEP (1-877-927-6337);
ii. Hires an environmental professional, as defined in the Heating Oil Tank System Remediation Rules at N.J.A.C. 7:26F-1.5, to respond to the emergency;
iii. Limits both the actual disturbance and the time needed for the disturbance to the minimum reasonably necessary to adequately respond to the emergency;
iv. Implements all measures necessary to limit actual or potential, present, or future risk of exposure to humans or the environment to the contamination;
v. Notifies the Department of Environmental Protection when the emergency or immediate environmental concern has ended by calling the Department Hotline at 1-877-WARNDEP (1-877-927-6337);
vi. Restores the engineering control(s) to the pre-emergency conditions as soon as possible; and
vii. Submits to the Department of Environmental Protection, within 60 calendar days after completion of the restoration of the engineering control(s), a report including:
(a) the nature and likely cause of the emergency;
(b) the measures that have been taken to mitigate the effects of the emergency on human health and the environment;
(c) the measures completed or implemented to restore the engineering control(s); and
(d) any changes to the engineering control(s) or site operation and maintenance plan to prevent recurrence of such conditions in the future.
7. TERMINATION OF DEED NOTICE. This Deed Notice may be terminated only upon recording a Department-approved Termination of Deed Notice, available in the Administrative Requirements for the Remediation of Contaminated Sites at N.J.A.C. 7:26C Appendix C, with the office of the [Insert as appropriate the County Clerk/Register of Deeds and Mortgages] of [Insert the name of the County] County, New Jersey, expressly terminating this Deed Notice.
8. ACCESS. The Owner, and the subsequent owners, lessors, lessees, and operators agree to allow the Department, its agents, and its representatives access to the Property to inspect and evaluate the continued protectiveness of the remedial action that includes this Deed Notice, and to conduct additional remediation to ensure the protection of the public health and safety and of the environment if the subsequent owners, lessors, lessees, and operators, during their ownership, tenancy, or operation, and the Owner fail to conduct such remediation pursuant to this Deed Notice as required by law. The Owner, and the subsequent owners, lessors, and lessees, shall also cause all leases, subleases, grants, and other written transfers of an interest in the Restricted Areas to contain a provision expressly requiring that all holders thereof provide such access to the Department.
9. ENFORCEMENT OF VIOLATIONS.
i. This Deed Notice itself is not intended to create any interest in real estate in favor of the Department of Environmental Protection, nor to create a lien against the Property, but merely is intended to provide notice of certain conditions and restrictions on the Property and to reflect the regulatory and statutory obligations imposed as a conditional remedial action for this site.
ii. The restrictions provided herein may be enforceable solely by the Department against any person who violates this Deed Notice. To enforce violations of this Deed Notice, the Department may initiate one or more enforcement actions pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, and the Site Remediation Reform Act, N.J.S.A. 58:10C, and require additional remediation and assess damages pursuant to N.J.S.A. 58:10-23.11 and N.J.S.A. 58:10C.
10. SEVERABILITY. If any court of competent jurisdiction determines that any provision of this Deed Notice requires modification, such provision shall be deemed to have been modified automatically to conform to such requirements. If a court of competent jurisdiction determines that any provision of this Deed Notice is invalid or unenforceable and the provision is of such a nature that it cannot be modified, the provision shall be deemed deleted from this instrument as though the provision had never been included herein. In either case, the remaining provisions of this Deed Notice shall remain in full force and effect.
11A. EXHIBIT A. Exhibit A includes the following maps of the Property and the vicinity:
i. Exhibit A-1: Vicinity Map -- A map that identifies by name the roads, and other important geographical features in the vicinity of the Property (for example, USGS Quad map, Hagstrom County Maps);
ii. Exhibit A-2: Metes and Bounds Description -- A tax map of lots and blocks as wells as a metes and bounds description of the Property, including reference to tax lot and block numbers for the Property;
iii. Exhibit A-3: Property Map -- A scaled map of the Property, scaled at one inch to 200 feet or less, and if more than one map is submitted, the maps shall be presented as overlays, keyed to a base map; and the Property Map shall include diagrams of major surface topographical features such as buildings, roads, and parking lots.
11B. EXHIBIT B. Exhibit B includes the following descriptions of the Restricted Areas:
i. Exhibit B-1: Restricted Area Map -- A separate map for each restricted area that includes:
(A) As-built diagrams of any buildings, paved areas, or capped easements (for example, a sidewalk containing utilities) that function as engineering controls; and
(B) Designation of all soil and sediment sample locations within the restricted areas that exceed any soil or sediment standard that are keyed into one of the tables described in the following paragraph.
ii. Exhibit B-2: Restricted Area Data Table -- A separate table for each restricted area that includes the following:
(A) Sample location designation from Restricted Area map (Exhibit B-1);
(B) Sample elevation based upon mean sea level; and
(C) The remaining concentration of each contaminant at each sample location at each elevation.
iii. Exhibit B-3: Narrative Descriptions of the Engineering Control(s) as follows:
(A) Description of the engineering control(s);
(B) The objective of the engineering control(s); and
(C) How the engineering control(s) is(are) intended to function.
12. SIGNATURES. IN WITNESS WHEREOF, Owner has executed this Deed Notice as of the date first written above.
[If Owner is an individual]
WITNESS: _________________________
[Signature]
_________________________
[Print name below signature]
STATE OF [State where document is executed] SS.:
COUNTY OF [County where document is executed]
I certify that on ________, 20__, [Name of Owner] personally came before me, and this person acknowledged under oath, to my satisfaction, that this person [or if more than one person, each person]
(a) is named in and personally signed this document; and
(b) signed, sealed and delivered this document as his or her act and deed.
____________________________
____________________________, Notary Public
[Print Name and Title]
13. SIGNATURES. IN WITNESS WHEREOF, Owner has executed this Deed Notice as of the date first written above.
[If Owner is a corporation]
ATTEST: [Name of corporation]
________________________ By ______________________
________________________ ________________________
[Print name and title] [Signature]
STATE OF [State where document is executed] SS.:
COUNTY OF [County where document is executed]
I certify that on ________, 20__, [Name of person executing document on behalf of Owner] personally came before me, and this person acknowledged under oath, to my satisfaction, that:
(a) this person is the [Pick as applicable: secretary/assistant secretary] of [Owner], the corporation named in this document;
(b) this person is the attesting witness to the signing of this document by the proper corporate officer who is the [Pick as applicable: president/vice president] of the corporation;
(c) this document was signed and delivered by the corporation as its voluntary act and was duly authorized;
(d) this person knows the proper seal of the corporation which was affixed to this document; and
(e) this person signed this proof to attest to the truth of these facts. ___________________________________
[Signature]
___________________________________
[Print name and title of attesting witness]
Signed and sworn before me on ________, 20__
__________________________________, Notary Public
__________________________________
[Print name and title]
