New Jersey § 13:1k-8

§ 13:1k-8.

As used in this act: “ Remedial action workplan ” means a plan for the remedial action to be undertaken at an industrial establishment,

or at any area to which a discharge originating at the industrial establishment is

migrating or has migrated; a description of the remedial action to be used to remediate

the industrial establishment; a time schedule and cost estimate of the implementation

of the remedial action; and any other relevant information the department deems necessary; “ Closing operations ” means: (1) the cessation of operations resulting in at least a 90 percent reduction in the

total value of the product output from the entire industrial establishment, as measured

on a constant, annual date-specific basis, within any five-year period, or, for industrial

establishments for which the product output is undefined, a 90 percent reduction in

the number of employees or a 90 percent reduction in the area of operations of an

industrial establishment within any five-year period; provided, however, the department

may approve a waiver of the provisions of this paragraph for any owner or operator

who, upon application and review, evidences a good faith effort to maintain and expand

product output, the number of employees, or area of operations of the affected industrial

establishment; (2) any temporary cessation of operations of an industrial establishment for a period

of not less than two years; (3) any judicial proceeding or final agency action through which an industrial establishment

becomes nonoperational for health or safety reasons; (4) the initiation of bankruptcy proceedings pursuant to Chapter 7 of the federal

Bankruptcy Code, 11 U.S.C. s.701 et seq. or the filing of a plan of reorganization that provides for a liquidation pursuant

to Chapter 11 of the federal Bankruptcy Code, 11 U.S.C. s.1101 et seq. ; (5) any change in operations of an industrial establishment that changes the industrial

establishment's Standard Industrial Classification number to one that is not subject

to this act; or (6) the termination of a lease unless there is no disruption in operations of the

industrial establishment, or the assignment of a lease; “ Transferring ownership or operations ” means: (1) any transaction or proceeding through which an industrial establishment undergoes

a change in ownership; (2) the sale or transfer of more than 50 percent of the assets of an industrial establishment within any five-year period, as measured

on a constant, annual date-specific basis; (3) the execution of a lease for a period of 99 years or longer for an industrial

establishment; or (4) the dissolution of an entity that is an owner or operator or an indirect owner

of an industrial establishment, except for any dissolution of an indirect owner of

an industrial establishment whose assets would have been unavailable for the remediation

of the industrial establishment if the dissolution had not occurred; “ Change in ownership ” means: (1) the sale or transfer of the business of an industrial establishment or any of

its real property; (2) the sale or transfer of stock in a corporation resulting in a merger or consolidation

involving the direct owner or operator or indirect owner of the industrial establishment; (3) the sale or transfer of stock in a corporation, or the transfer of a partnership

interest, resulting in a change in the person holding the controlling interest in

the direct owner or operator or indirect owner of an industrial establishment; (4) the sale or transfer of title to an industrial establishment or the real property

of an industrial establishment by exercising an option to purchase; or (5) the sale or transfer of a partnership interest in a partnership that owns or operates

an industrial establishment, that would reduce, by 10 percent or more, the assets available for remediation of the industrial establishment; “ Change in ownership ” shall not include: (1) a corporate reorganization not substantially affecting the ownership of the industrial

establishment; (2) a transaction or series of transactions involving the transfer of stock, assets

or both, among corporations under common ownership, if the transaction or transactions

will not result in the diminution of the net worth of the corporation that directly

owns or operates the industrial establishment by more than 10 percent , or if an equal or greater amount in assets is available for the remediation of the

industrial establishment before and after the transaction or transactions; (3) a transaction or series of transactions involving the transfer of stock, assets

or both, resulting in the merger or de facto merger or consolidation of the indirect

owner with another entity, or in a change in the person holding the controlling interest

of the indirect owner of an industrial establishment, when the indirect owner's assets

would have been unavailable for cleanup if the transaction or transactions had not

occurred; (4) a transfer where the transferor is the sibling, spouse, child, parent, grandparent,

child of a sibling, or sibling of a parent of the transferee; (5) a transfer to confirm or correct any deficiencies in the recorded title of an

industrial establishment; (6) a transfer to release a contingent or reversionary interest except for any transfer

of a lessor's reversionary interest in leased real property; (7) a transfer of an industrial establishment by devise or intestate succession; (8) the granting or termination of an easement or a license to any portion of an industrial

establishment; (9) the sale or transfer of real property pursuant to a condemnation proceeding initiated

pursuant to the “Eminent Domain Act of 1971,” P.L.1971, c. 361 ( C.20:3-1 et seq. ); (10) execution, delivery and filing or recording of any mortgage, security interest,

collateral assignment or other lien on real or personal property; or (11) any transfer of personal property pursuant to a valid security agreement, collateral

assignment or other lien, including, but not limited to, seizure or replevin of such

personal property which transfer is for the purpose of implementing the secured party's

rights in the personal property which is the collateral; “ Department ” means the Department of Environmental Protection; “ Hazardous substances ” means those elements and compounds, including petroleum products, which are defined

as such by the department, after public hearing, and which shall be consistent to

the maximum extent possible with, and which shall include, the list of hazardous substances

adopted by the Environmental Protection Agency pursuant to Section 311 of the “Federal

Water Pollution Control Act Amendments of 1972” ( 33 U.S.C. s.1321 ) and the list of toxic pollutants designated by Congress or the Environmental Protection

Agency pursuant to Section 307 of that act ( 33 U.S.C. s.1317 ); except that sewage and sewage sludge shall not be considered as hazardous substances

for the purposes of this act; “ Hazardous waste ” shall have the same meaning as provided in section 1 of P.L.1976, c. 99 ( C.13:1E-38 ); “ Industrial establishment ” means any place of business engaged in operations which involve the generation,

manufacture, refining, transportation, treatment, storage, handling, or disposal of

hazardous substances or hazardous wastes on-site, above or below ground, having a

Standard Industrial Classification number within 22-39 inclusive, 46-49 inclusive,

51 or 76 as designated in the Standard Industrial Classifications Manual prepared

by the Office of Management and Budget in the Executive Office of the President of

the United States. Those facilities or parts of facilities subject to operational closure and post-closure

maintenance requirements pursuant to the “Solid Waste Management Act,” P.L.1970, c.

39 ( C.13:1E-1 et seq. ), the “Major Hazardous Waste Facilities Siting Act,” sections 1 through 43 of P.L.1981,

c. 279 ( C.13:1E-49 et seq. ) or the “Solid Waste Disposal Act” ( 42 U.S.C. s.6901 et seq. ), or any establishment engaged in the production or distribution of agricultural

commodities, shall not be considered industrial establishments for the purposes of

this act. The department may, pursuant to the “Administrative Procedure Act,” P.L.1968, c.

410 ( C.52:14B-1 et seq. ), exempt certain sub-groups or classes of operations within those sub-groups within

the Standard Industrial Classification major group numbers listed in this subsection

upon a finding that the operation of the industrial establishment does not pose a

risk to public health and safety; “ Negative declaration ” means a written declaration, submitted by the owner or operator of an industrial

establishment or other person assuming responsibility for the remediation under paragraph

(3) of subsection b. of section 4 of P.L.1983, c. 330 1 to the department, certifying that there has been no discharge of hazardous substances

or hazardous wastes on the site, or that any such discharge on the site or discharge

that has migrated or is migrating from the site has been remediated in accordance

with procedures approved by the department and in accordance with any applicable remediation

regulations; “ Discharge ” means an intentional or unintentional action or omission resulting in the releasing,

spilling, leaking, pumping, pouring, emitting, emptying, or dumping of a hazardous

substance or hazardous waste into the waters or onto the lands of the State; “ No further action letter ” means a written determination by the department that, based upon an evaluation of

the historical use of the industrial establishment and the property, or of an area

of concern or areas of concern, as applicable, and any other investigation or action

the department deems necessary, there are no discharged hazardous substances or hazardous

wastes present at the site of the industrial establishment, at the area of concern

or areas of concern, or at any other site to which discharged hazardous substances

or hazardous wastes originating at the industrial establishment have migrated, and

that any discharged hazardous substances or hazardous wastes present at the industrial

establishment or that have migrated from the site have been remediated in accordance

with applicable remediation regulations; “ Indirect owner ” means any person who holds a controlling interest in a direct owner or operator,

holds a controlling interest in another indirect owner, or holds an interest in a

partnership which is an indirect owner or a direct owner or operator, of an industrial

establishment; “ Direct owner or operator ” means any person that directly owns or operates an industrial establishment. A holder of a mortgage or other security interest in the industrial establishment

shall not be deemed to be a direct owner or operator of the industrial establishment

unless or until it loses its exemption under P.L.1993, c. 112 ( C.58:10-23.11g4 et al.) or obtains title to the industrial establishment by deed of foreclosure,

by other deed, or by court order or other process; “ Area of concern ” means any location where hazardous substances or hazardous wastes are or were known

or suspected to have been discharged, generated, manufactured, refined, transported,

stored, handled, treated, or disposed, or where hazardous substances or hazardous

wastes have or may have migrated; “ Licensed site remediation professional ” means an individual who is licensed by the Site Remediation Professional Licensing

Board pursuant to section 7 of P.L.2009, c. 60 ( C.58:10C-7 ) or the department pursuant to section 12 of P.L.2009, c. 60 ( C.58:10C-12 ); “ Owner ” means any person who owns the real property of an industrial establishment or who

owns the industrial establishment. A holder of a mortgage or other security interest in the industrial establishment

shall not be deemed to be an owner of the industrial establishment unless or until

it loses its exemption under P.L.1993, c. 112 ( C.58:10-23.11g4 et al.) or obtains title to the industrial establishment by deed of foreclosure,

by other deed, or by court order or other process; “ Operator ” means any person, including users, tenants, or occupants, having and exercising

direct actual control of the operations of an industrial establishment. A holder of a mortgage or other security interest in the industrial establishment

shall not be deemed to be an operator of the industrial establishment unless or until

it loses its exemption under P.L.1993, c. 112 ( C.58:10-23.11g4 et al.) or obtains title to the industrial establishment by deed of foreclosure,

by other deed, or by court order or other process; “ Preliminary assessment ” means the first phase in the process of identifying areas of concern and determining

whether hazardous substances or hazardous wastes are or were present at an industrial

establishment or have migrated or are migrating from the industrial establishment,

and shall include the initial search for and evaluation of, existing site specific

operational and environmental information, both current and historic, to determine

if further investigation concerning the documented, alleged, suspected or latent discharge

of any hazardous substance or hazardous waste is required. The evaluation of historic information shall be conducted from 1932 to the present,

except that the department may require the search for and evaluation of additional

information relating to ownership and use of the site prior to 1932 if such information

is available through diligent inquiry of public records; “ Remediation ” or “ remediate ” means all actions to investigate , clean up , or respond to any known, suspected, or threatened discharge of hazardous substances

or hazardous wastes, including the preliminary assessment, site investigation, remedial investigation, and remedial

action , or any portion thereof, provided, however, that “remediation” or “remediate” shall

not include the payment of compensation for damage to, or loss of, natural resources ; “ Remediation standards ” means the combination of numeric standards that establish a level or concentration

and narrative standards, to which hazardous substances or hazardous wastes must be

treated, removed, or otherwise cleaned for soil, groundwater, or surface water, as

provided by the department pursuant to section 35 of P.L.1993, c. 139 ( C.58:10B-12 ) in order to meet the health risk or environmental standards; “ Remedial action ” means those actions taken at an industrial establishment or offsite of an industrial

establishment if hazardous substances or hazardous wastes have migrated or are migrating

therefrom, as may be required by the department to protect public health, safety,

and the environment. These actions may include the removal, treatment, containment, transportation, securing,

or other engineering measures, whether to an unrestricted use or otherwise, designed

to ensure that any discharged hazardous substances or hazardous wastes at the site

or that have migrated or are migrating from the site, are remediated in compliance

with the applicable health risk or environmental standards; “ Remedial investigation ” means a process to determine the nature and extent of a discharge of hazardous substances

or hazardous wastes at an industrial establishment or a discharge of hazardous substances

or hazardous wastes that have migrated or are migrating from the site and the problems

presented by a discharge, and may include data collection, site characterization,

sampling, monitoring, and the gathering of any other sufficient and relevant information

necessary to determine the necessity for remedial action and to support the evaluation

of remedial actions if necessary; “ Response action outcome ” means a written determination by a licensed site remediation professional that the

contaminated site was remediated in accordance with all applicable statutes and regulations,

and based upon an evaluation of the historical use of the site, or of any area of

concern at that site, as applicable, and any other investigation or action the department

deems necessary, there are no contaminants present at the site, or at any area of

concern, at any other site to which a discharge originating at the site has migrated,

or that any contaminants present at the site or that have migrated from the site have

been remediated in accordance with applicable remediation regulations, and all applicable

permits and authorizations have been obtained; “ Site investigation ” means the collection and evaluation of data adequate to determine whether or not

discharged hazardous substances or hazardous wastes exist at the industrial establishment

or have migrated or are migrating from the site at levels in excess of the applicable

remediation standards. A site investigation shall be developed based upon the information collected pursuant

to the preliminary assessment. 1

N.J.S.A. § 13:1K-9.