New Jersey § 58:10b-13

§ 58:10b-13.

a. Whenever on or after October 16, 2009 the Department of Environmental Protection issues a no further action letter pursuant

to a remediation, the person responsible for conducting the remediation shall be deemed by operation

of law to have received a covenant not to sue with respect to the real property upon

which the remediation has been conducted . The covenant not to sue shall be consistent with any conditions and limitations

contained in the no further action letter. The covenant not to sue shall be for any area of concern remediated and may apply

to the entire real property if the remediation included a preliminary assessment and,

if necessary, a site investigation of the entire real property, and any other necessary

remedial actions. The covenant remains effective only for as long as the real property for which the

covenant was issued continues to meet the conditions of the no further action letter. Upon a finding by the department that real property or a portion thereof to which

a covenant not to sue pertains, no longer meets with the conditions of the no further

action letter, the department shall provide notice of that fact to the person responsible

for maintaining compliance with the no further action letter. The department may allow the person a reasonable time to come into compliance with

the terms of the original no further action letter. If the property does not meet the conditions of the no further action letter and

if the department does not allow for a period of time to come into compliance or if

the person fails to come into compliance within the time period, the covenant not to sue shall be deemed to be revoked by operation of law . Except as provided in subsection e. of this section, a covenant not to sue shall by operation of law provide for the following, as applicable: (1) a provision releasing the person who undertook the remediation from all civil

liability to the State to perform any additional remediation, to pay compensation

for damage to, or loss of, natural resources, for the restoration of natural resources

in connection with the discharge on the property or for any cleanup and removal costs; (2) for a remediation that involves the use of engineering or institutional controls: (a) a provision requiring the person, or any subsequent owner, lessee, or operator

during the person's period of ownership, tenancy, or operation, to maintain those

controls, conduct periodic monitoring for compliance, and submit to the department,

on a biennial basis, a certification that the engineering and institutional controls

are being properly maintained and continue to be protective of public health and safety

and of the environment. The certification shall state the underlying facts and shall include the results

of any tests or procedures performed that support the certification; and (b) a provision that the covenant is revoked by operation of law if the engineering or institutional controls are not being maintained or are no longer

in place; and (3) for a remediation that involves the use of engineering controls but not for any

remediation that involves the use of institutional controls only, a provision barring

the person or persons whom the covenant not to sue benefits, from making a claim against

the New Jersey Spill Compensation Fund and the Sanitary Landfill Facility Contingency

Fund for any costs or damages relating to the real property and remediation covered

by the covenant not to sue. The covenant not to sue shall not bar a claim by any person against the New Jersey

Spill Compensation Fund and the Sanitary Landfill Contingency Fund for any remediation

that involves only the use of institutional controls if, after a valid no further

action letter has been issued, the department orders additional remediation, except

that the covenant shall bar such a claim if the department ordered additional remediation

in order to remove the institutional control. b. Unless a covenant not to sue issued under this section is revoked by the department, or by operation of law, the covenant shall remain effective. The covenant not to sue shall apply to all successors in ownership of the property

and to all persons who lease the property or who engage in operations on the property. c. If a covenant not to sue is revoked, liability for any additional remediation shall

not be applied retroactively to any person for whom the covenant remained in effect

during that person's ownership, tenancy, or operation of the property. d. A covenant not to sue and the protections it affords shall not apply to any discharge

that occurs subsequent to the issuance of the no further action letter which was the

basis of the issuance of the covenant, nor shall a covenant not to sue and the protections

it affords relieve any person of the obligations to comply in the future with laws

and regulations. e. The covenant not to sue shall be deemed to apply to any person who obtains a no further action letter as provided in subsection a.

of this section. The covenant not to sue shall not provide relief from any liability, either under

statutory or common law, to any person who is liable for cleanup and removal costs

pursuant to subsection c. of section 8 of P.L.1976, c. 141 ( C.58:10-23.11g ), and who does not have a defense to liability pursuant to subsection d. of that

section. f. (1) Except as provided in paragraphs (2) and (3) of this subsection, the department shall not issue covenants not to sue after the

issuance of licenses to site remediation professionals pursuant to the provisions

of section 12 of P.L.2009, c. 60 ( C.58:10C-12 ). (2) The department may issue a covenant not to sue that is consistent with the provisions of this section when it issues a no further action letter for a remediation of a discharge from an

unregulated heating oil tank. (3) The department may issue a covenant not to sue as part of a settlement of litigation .