New Jersey § 58:10-23

§ 58:10-23.

a. The fund shall be strictly liable, without regard to fault, for all cleanup and

removal costs and for all direct and indirect damages no matter by whom sustained,

including but not limited to: (1) The cost of restoring, repairing, or replacing any real or personal property damaged

or destroyed by a discharge, any income lost from the time such property is damaged

to the time such property is restored, repaired or replaced, and any reduction in

value of such property caused by such discharge by comparison with its value prior

thereto; (2) The cost of restoration and replacement, where possible, of any natural resource

damaged or destroyed by a discharge; (3) Loss of income or impairment of earning capacity due to damage to real or personal

property, including natural resources destroyed or damaged by a discharge; provided

that such loss or impairment exceeds 10 percent of the amount which claimant derives, based upon income or business records, exclusive

of other sources of income, from activities related to the particular real or personal

property or natural resources damaged or destroyed by such discharge during the week,

month or year for which the claim is filed; (4) Loss of tax revenue by the State or local governments for a period of one year

due to damage to real or personal property proximately resulting from a discharge; (5) Interest on loans obtained or other obligations incurred by a claimant for the

purpose of ameliorating the adverse effects of a discharge pending the payment of

a claim in full as provided by this act. b. The damages which may be recovered by the fund, without regard to fault, subject

to the defenses enumerated in subsection d. of this section against the owner or operator

of a major facility or vessel, shall not exceed $50,000,000.00 for each major facility

or $1,200 per gross ton for each vessel, except that such maximum limitation shall

not apply and the owner or operator shall be liable, jointly and severally, for the

full amount of such damages if it can be shown that such discharge was the result

of (1) gross negligence or willful misconduct, within the knowledge and privity of

the owner, operator or person in charge, or (2) a gross or willful violation of applicable

safety, construction or operating standards or regulations. Damages which may be recovered from, or by, any other person shall be limited to

those authorized by common or statutory law. c. (1) Except as provided in section 2 of P.L.2005, c. 43 ( C.58:10-23.11g12 ), any person who has discharged a hazardous substance, or is in any way responsible

for any hazardous substance, shall be strictly liable, jointly and severally, without

regard to fault, for all cleanup and removal costs no matter by whom incurred. Such person shall also be strictly liable, jointly and severally, without regard

to fault, for all cleanup and removal costs incurred by the department or a local

unit pursuant to subsection b. of section 7 of P.L.1976, c. 141 ( C.58:10-23.11f ). (2) In addition to the persons liable pursuant to this subsection, in the case of

a discharge of a hazardous substance from a vessel into the waters of the State, the

owner or operator of a refinery, storage, transfer, or pipeline facility to which

the vessel was en route to deliver the hazardous substance who, by contract, agreement,

or otherwise, was scheduled to assume ownership of the discharged hazardous substance,

and any other person who was so scheduled to assume ownership of the discharged hazardous

substance, shall be strictly liable, jointly and severally, without regard to fault,

for all cleanup and removal costs if the owner or operator of the vessel did not have

the evidence of financial responsibility required pursuant to section 2 of P.L.1991, c. 58 ( C.58:10-23.11g2 ). Where a person is liable for cleanup and removal costs as provided in this paragraph,

any expenditures made by the administrator for that cleanup and removal shall constitute

a debt of that person to the fund. The debt shall constitute a lien on all property owned by that person when a notice

of lien identifying the nature of the discharge and the amount of the cleanup, removal

and related costs expended from the fund is duly filed with the clerk of the Superior

Court. The clerk shall promptly enter upon the civil judgment or order docket the name

and address of the liable person and the amount of the lien as set forth in the notice

of lien. Upon entry by the clerk, the lien, to the amount committed by the administrator

for cleanup and removal, shall attach to the revenues and all real and personal property

of the liable person, whether or not that person is insolvent. For the purpose of determining priority of this lien over all other claims or liens

which are or have been filed against the property of an owner or operator of a refinery,

storage, transfer, or pipeline facility, the lien on the facility to which the discharged

hazardous substance was en route shall have priority over all other claims or liens

which are or have been filed against the property. The notice of lien filed pursuant to this paragraph which affects any property of

a person liable pursuant to this paragraph other than the property of an owner or

operator of a refinery, storage, transfer, or pipeline facility to which the discharged

hazardous substance was en route, shall have priority from the day of the filing of

the notice of the lien over all claims and liens filed against the property, but shall

not affect any valid lien, right, or interest in the property filed in accordance

with established procedure prior to the filing of a notice of lien pursuant to this

paragraph. To the extent that a person liable pursuant to this paragraph is not otherwise liable

pursuant to paragraph (1) of this subsection, or under any other provision of law

or under common law, that person may bring an action for indemnification for costs

paid pursuant to this paragraph against any other person who is strictly liable pursuant

to paragraph (1) of this subsection. Nothing in this paragraph shall be construed to extend or negate the right of any

person to bring an action for contribution that may exist under P.L.1976, c. 141 1 , or any other act or under common law. (3) In addition to the persons liable pursuant to this subsection, any person who

owns real property acquired on or after September 14, 1993 on which there has been

a discharge prior to the person's acquisition of that property and who knew or should

have known that a hazardous substance had been discharged at the real property, shall

be strictly liable, jointly and severally, without regard to fault, for all cleanup

and removal costs no matter by whom incurred. Such person shall also be strictly liable, jointly and severally, without regard

to fault, for all cleanup and removal costs incurred by the department or a local

unit pursuant to subsection b. of section 7 of P.L.1976, c. 141 ( C.58:10-23.11f ). Nothing in this paragraph shall be construed to alter liability of any person who

acquired real property prior to September 14, 1993. d. (1) In addition to those defenses provided in this subsection, an act or omission

caused solely by war, sabotage, or God, or a combination thereof, shall be the only

defenses which may be raised by any owner or operator of a major facility or vessel

responsible for a discharge in any action arising under the provisions of this act. (2) A person, including an owner or operator of a major facility, who owns real property

acquired on or after September 14, 1993 on which there has been a discharge, shall

not be liable for cleanup and removal costs or for any other damages to the State

or to any other person for the discharged hazardous substance pursuant to subsection

c. of this section or pursuant to civil common law, if that person can establish by

a preponderance of the evidence that subparagraphs (a) through (d) apply, or if applicable,

subparagraphs (a) through (e) apply: (a) the person acquired the real property after the discharge of that hazardous substance

at the real property; (b)(i) at the time the person acquired the real property, the person did not know

and had no reason to know that any hazardous substance had been discharged at the

real property, or (ii) the person acquired the real property by devise or succession,

except that any other funds or property received by that person from the deceased

real property owner who discharged a hazardous substance or was in any way responsible

for a hazardous substance, shall be made available to satisfy the requirements of

P.L.1976, c. 141, or (iii) the person complies with the provisions of subparagraph

(e) of paragraph (2) of this subsection; (c) the person did not discharge the hazardous substance, is not in any way responsible

for the hazardous substance, and is not a corporate successor to the discharger or

to any person in any way responsible for the hazardous substance or to anyone liable

for cleanup and removal costs pursuant to this section; (d) the person gave notice of the discharge to the department upon actual discovery

of that discharge. To establish that a person had no reason to know that any hazardous substance had

been discharged for the purposes of this paragraph (2), the person must have undertaken,

at the time of acquisition, all appropriate inquiry into the previous ownership and

uses of the property. For the purposes of this paragraph (2), all appropriate inquiry shall mean the performance

of a preliminary assessment, and site investigation, if the preliminary assessment

indicates that a site investigation is necessary, as defined in section 23 of P.L.1993, c. 139 ( C.58:10B-1 ), and performed in accordance with rules and regulations promulgated by the department

defining these terms. Nothing in this paragraph (2) shall be construed to alter liability of any person

who acquired real property prior to September 14, 1993; and (e) For the purposes of this subparagraph the person must have (i) acquired the property

subsequent to a hazardous substance being discharged on the site and which discharge

was discovered at the time of acquisition as a result of the appropriate inquiry,

as defined in this paragraph (2), (ii) performed, following the effective date of P.L.1997, c. 278 2 , a remediation of the site or discharge consistent with the provisions of section

35 of P.L.1993, c. 139 ( C.58:10B-12 ), or, relied upon a valid final remediation document for a remediation performed

prior to acquisition, or, obtained a remedial action workplan certified by a licensed site remediation professional

retained for the site after the date of enactment of P.L.2009, c. 60 ( C.58:10C-1 et al.) and continued to comply with the conditions of that workplan, or obtained approval of a remedial action workplan by the department after the effective

date of P.L.1997, c. 278 and continued to comply with the conditions of that workplan, and (iii) established

and maintained all engineering and institutional controls as may be required pursuant

to sections 35 and 36 of P.L.1993, c. 139 . A person who complies with the provisions of this subparagraph by actually performing

a remediation of the site or discharge as set forth in (ii) above shall be issued,

upon application, a no further action letter by the department or a response action

outcome by a licensed site remediation professional, as applicable. A person who complies with the provisions of this subparagraph either by receipt

of a final remediation document following the effective date of P.L.1997, c. 278, or by relying on a previously issued final remediation document shall not be liable

for any further remediation including any changes in a remediation standard or for

the subsequent discovery of a hazardous substance, at the site, or emanating from

the site, if the remediation was for the entire site, and the hazardous substance

was discharged prior to the person acquiring the property. Notwithstanding any other provisions of this subparagraph, a person who complies

with the provisions of this subparagraph only by virtue of the existence of a previously

issued final remediation document shall receive no liability protections for any discharge

which occurred during the time period between the issuance of the final remediation

document and the property acquisition. Compliance with the provisions of this subparagraph (e) shall not relieve any person

of any liability for a discharge that is off the site of the property covered by the

final remediation document, for a discharge that occurs at that property after the

person acquires the property, for any actions that person negligently takes that aggravates

or contributes to a discharge of a hazardous substance, for failure to comply in the

future with laws and regulations, or if that person fails to maintain the institutional

or engineering controls on the property or to otherwise comply with the provisions

of the final remediation document. (3) Notwithstanding the provisions of paragraph (2) of this subsection to the contrary,

if a person who owns real property obtains actual knowledge of a discharge of a hazardous

substance at the real property during the period of that person's ownership and subsequently

transfers ownership of the property to another person without disclosing that knowledge,

the transferor shall be strictly liable for the cleanup and removal costs of the discharge

and no defense under this subsection shall be available to that person. (4) Any federal, State, or local governmental entity which acquires ownership of real

property through bankruptcy, tax delinquency, abandonment, escheat, eminent domain,

condemnation or any circumstance in which the governmental entity involuntarily acquires

title by virtue of its function as sovereign, or where the governmental entity acquires

the property by any means for the purpose of promoting the redevelopment of that property,

shall not be liable, pursuant to subsection c. of this section or pursuant to common

law, to the State or to any other person for any discharge which occurred or began

prior to that ownership. This paragraph shall not provide any liability protection to any federal, State

or local governmental entity which has caused or contributed to the discharge of a

hazardous substance. This paragraph shall not provide any liability protection to any federal, State,

or local government entity that acquires ownership of real property by condemnation

or eminent domain where the real property is being remediated in a timely manner at

the time of the condemnation or eminent domain action. (5) A person, including an owner or operator of a major facility, who owns real property

acquired prior to September 14, 1993 on which there has been a discharge, shall not

be liable for cleanup and removal costs or for any other damages to the State or to

any other person for the discharged hazardous substance pursuant to subsection c.

of this section or pursuant to civil common law, if that person can establish by a

preponderance of the evidence that subparagraphs (a) through (d) apply: (a) the person acquired the real property after the discharge of that hazardous substance

at the real property; (b)(i) at the time the person acquired the real property, the person did not know

and had no reason to know that any hazardous substance had been discharged at the

real property, or (ii) the person acquired the real property by devise or succession,

except that any other funds or property received by that person from the deceased

real property owner who discharged a hazardous substance or was in any way responsible

for a hazardous substance, shall be made available to satisfy the requirements of

P.L.1976, c. 141; (c) the person did not discharge the hazardous substance, is not in any way responsible

for the hazardous substance, and is not a corporate successor to the discharger or

to any person in any way responsible for the hazardous substance or to anyone liable

for cleanup and removal costs pursuant to this section; (d) the person gave notice of the discharge to the department upon actual discovery

of that discharge. To establish that a person had no reason to know that any hazardous substance had

been discharged for the purposes of this paragraph (5), 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. Nothing in this paragraph (5) shall be construed to alter liability of any person

who acquired real property on or after September 14, 1993. e. Neither the fund nor the Sanitary Landfill Contingency Fund established pursuant

to P.L.1981, c. 306 ( C.13:1E-100 et seq. ) shall be liable for any damages incurred by any person who is relieved from liability

pursuant to subsection d. or f. of this section for a remediation that involves the

use of engineering controls but the fund and the Sanitary Landfill Contingency Fund

shall be liable for any remediation that involves only the use of institutional controls

if after a valid final remediation document has been issued the department orders

additional remediation except that the fund and the Sanitary Landfill Contingency

Fund shall not be liable for any additional remediation that is required to remove

an institutional control. f. Notwithstanding any other provision of this section, a person, who owns real property

acquired on or after the effective date of P.L.1997, c. 278 ( C.58:10B-1.1 et al.), shall not be liable for any cleanup and removal costs or damages, under

this section or pursuant to any other statutory or civil common law, to any person,

other than the State and the federal government, harmed by any hazardous substance

discharged on that property prior to acquisition, and any migration off that property

related to that discharge, provided all the conditions of this subsection are met: (1) the person acquired the real property after the discharge of that hazardous substance

at the real property; (2) the person did not discharge the hazardous substance, is not in any way responsible

for the hazardous substance, and is not a corporate successor to the discharger or

to any person in any way responsible for the hazardous substance or to anyone liable

for a discharge pursuant to this section; (3) the person gave notice of the discharge to the department upon actual discovery

of that discharge; (4)(a) within 30 days after acquisition of the property, the person commenced a remediation

of the discharge, including any migration, pursuant to a department oversight document

executed prior to acquisition, or (b) for property acquired after the date of enactment

of P.L.2009, c. 60 ( C.58:10C-1 et al.), the person provides written notice of the acquisition to the department

prior to or on the date of acquisition and the person remediates the property pursuant

to the provisions of section 30 of P.L.2009, c. 60 ( C.58:10B-1.3 ), and (c) the department is satisfied that remediation was completed in a timely

and appropriate fashion; and (5) Within ten days after acquisition of the property, or within 30 days after the

expiration of the period or periods allowed for the right of redemption pursuant to

tax foreclosure law, the person agrees in writing to provide access to the State for

remediation and related activities, as determined by the State. The provisions of this subsection shall not relieve any person of any liability: (1) for a discharge that occurs at that property after the person acquired the property; (2) for any actions that person negligently takes that aggravates or contributes to

the harm inflicted upon any person; (3) if that person fails to maintain the institutional or engineering controls on

the property or to otherwise comply with the provisions of a final remediation document

or a remedial action workplan and a person is harmed thereby; (4) for any liability to clean up and remove, pursuant to the department's regulations

and directions, any hazardous substances that may have been discharged on the property

or that may have migrated therefrom; and (5) for that person's failure to comply in the future with laws and regulations. g. Nothing in the amendatory provisions to this section adopted pursuant to P.L.1997, c. 278 shall be construed to remove any defense to liability that a person may have had

pursuant to subsection e. of this section that existed prior to the effective date

of P.L.1997, c. 278 . h. Nothing in this section shall limit the requirements of any person to comply with

P.L.1983, c. 330 ( C.13:1K-6 et al.). 1

N.J.S.A. § 58:10-23.11 et seq. 2

N.J.S.A. § 58:10B-1 et seq.