In a significant step toward increased transparency in the New Jersey Site Remediation Program (SRP), the New Jersey Department of Environmental Protection (NJDEP) announced on May 9, 2022 that it was making available to the public over 375,000 SRP case documents through its web-based DataMiner program. The documents can be accessed and downloaded through a new DataMiner report entitled “Attachments Available in Site Remediation” which can be found under the Site Remediation Category in DataMiner. The announcement also indicated that the work to include documents in the new report is ongoing, presumably meaning that more documents will become available over time.
A random spot check of several current cases selected from matters that firm attorneys have worked on in the past revealed quite a few documents for each matter, including various LSRP reports and other case-related submissions, internal NJDEP memos (including one handwritten note) that provided some interesting agency insights and agency field inspection reports (including, in one case, multiple site photos taken by the NJDEP inspector).
Unfortunately, the organization of the documents and the nomenclature used by DataMiner to identify individual documents is not always the clearest. Professionals who are familiar with NJDEP documents and their titles (or abbreviations) will likely have an easier time than the general public– for many, it may be necessary to look at the individual documents to determine what they are. In addition, it is likely that for older cases, the entire case file will not be available, nor will every case have documents. Certainly, some cases will be better populated than others. In the overall scheme of things, 375,000 documents is certainly far from the entire universe of documents in NJDEP’s site remediation files, however, with current electronic filing requirements, the universe of documents is likely to expand greatly over time.
As suggested by the NJDEP announcement, this is certainly an important starting point for due diligence in real estate transactions in the future and may afford a particularly good source of information for developers who want to conduct their due diligence before negotiating a purchase agreement and want to avoid having to wait on NJDEP’s response to an OPRA request. Although NJDEP advocates use of the new DataMiner report to reduce the volume of OPRA requests, it is questionable whether review of the available electronic documents in this report can substitute for a more standard file review to satisfy the ”all appropriate inquiry” requirements of the New Jersey and federal innocent purchaser and/or landowner liability defenses, at least until it becomes clearer as to how complete the files are that are available in these reports.