The document discusses factors to consider when determining whether to hire an LSRP or non-LSRP consultant for a contaminated site. It also summarizes some cases where consultants were sued for negligence related to environmental site assessments and failures to identify contamination. Key dates of 1993 and standards of due diligence for pre-1993 acquisitions are also noted. Elements needed to establish various legal defenses and standards of care for consultants are provided.

3. LSRP or Non-LSRP?
Projected Future Use of Site, Former Use of
Site, and Possible Contaminant(s) at Issue
are Key Factors
Experience and Trustworthiness are Major
Components to Selecting a Consultant

4. Spill Compensation and Control Act, N.J.S.A. 58:10-23.11g(d)(5),
elements of the defense include:
Acquired property after discharge of hazardous substance
Person did not know, and had no reason to know, that a hazardous
substance had been discharged
Person did not discharge the hazardous substance and is not “in
any way responsible”
Person gave notice of the discharge after discovery to the NJDEP

5. To establish that a person had “no reason to
know” that any hazardous substance had been
discharged:
“the person must have undertaken, at the time
of acquisition, all appropriate inquiry on the
previous ownership and uses of the property
based upon generally accepted good and
customary standards”

6. September 14, 1993 is a key date for the Defense
Post-Sept. 14, 1993 acquisition requires a PA/SI in
accordance with NJDEP regulations
Pre-Sept. 14, 1993 acquisition requires a showing that
due diligence was in accord with “generally accepted
good and customary standards” at the time of
acquisition
See N.J. Schools Development Authority v.
Marcantuone, 428 N.J. Super. 546 (App. Div. 2012)

8. 1) The Existence of a Duty
2) The Breach of that Duty
3) Proximate Causation of Damages
See Conklin v. Hannock Weisman, 145 N.J 395
(1996)

9.  Consultant did not locate former
“degreaser well” during PA/SI.
 Because concrete was over location of
degreaser well, no contamination was
found.
 After purchase, significant TCE
contamination was detected.
 Significant clean-up and litigation
costs as a result

10.  PA conducted, found a closed spill in NJDEP
file review that had NFA.
 Consultant concluded that no further review
was necessary.
 PA missed the former dry cleaner on the
property during review.
 Years later, buyer wanted to re-finance and
bank required PA/SI. PCE contamination
located on-site
 Consultant sued for Negligent
Misrepresentation

11.  Buyer hired consultant to conduct due diligence
 Consultant looked into past uses and uses in
surrounding area and determined that no further
environmental investigation was necessary
 During development, remains of municipal garbage
dump on adjacent property that extended
underneath buyer’s property discovered
 Consultant sued for professional malpractice
 Federal District Court articulated standard of care
as what the “reasonable consultant” would do
under the circumstances

12. Attorneys – Yes
 Petrillo v. Bachenberg, 139 N.J. 472 (1995)
– Attorney for seller of real estate owed a
duty to a potential buyer
Engineers – Yes
 Carvalho v. Toll Bros, 143 N.J. 565 (1995)
– Foreseeable reliance required
Environmental Consultants - ??