N.J. Admin. Code § 7:1J-2.4 - Damages actually incurred; mitigation

Current through Register Vol. 54, No. 7, April 4, 2022

(a) A claim shall not be eligible for compensation from the Fund unless the claimant has actually suffered the damages which are the subject of the claim. A claim shall be ineligible for compensation from the Fund to the extent that the damages which are the subject of the claim are contingent or speculative.
(b) A claim shall be ineligible for compensation from the Fund to the extent that the claimant has received compensation from any other source for damages which are the subject of the claim. The claimant shall exercise best efforts to obtain compensation from any other source from which compensation is reasonably likely to be available, including, without limitation, insurance policies, court awards, contractual rights, grants or other financial assistance from the Hazardous Discharge Site Remediation Fund, 58:10B-4, the Petroleum Underground Storage Tank Remediation, Upgrade and Closure Fund, 58:10A-37.3 and any other remedies provided under statutory or common law (including, without limitation, remedies with respect to a potentially responsible party under N.J.A.C. 7:1J-7 ). In determining the amount of the award, if any, the administrator shall reduce the award by the amount of compensation already received by the claimant for the damage which is the subject of the claim. The administrator may suspend processing of any claim pending the completion of the claimant's efforts to obtain compensation from such other sources.
(c) The claimant shall exercise reasonable diligence and ordinary care to mitigate or to prevent the damages by the claimant from increasing or being aggravated. Additional damages that are the result of claimant's failure to mitigate damages shall not be eligible for compensation from the Fund.
(d) A claim shall not be eligible for compensation from the Fund if the claimant knew or should have known at the time of purchase that the property which is the subject of the claim is contaminated or otherwise impacted by a discharge of hazardous substances.
(e) A claim shall be eligible for compensation from the Fund only to the extent that the claim is for costs associated with remediation which the Department has determined to be an environmentally sound means of ameliorating the damages resulting from a discharge, and cost effective. Environmentally sound remediation is remediation conducted in accordance with the Technical Requirements for Site Remediation, N.J.A.C. 7:26E. To determine if the remediation is cost-effective, the Department shall consider initial capital costs, 20-year operation and maintenance costs, monitoring costs, the Department's administrative costs, reliability and feasibility of implementation.

Notes

N.J. Admin. Code § 7:1J-2.4
Amended by R.1998 d.67, effective 1/20/1998.
See: 29 N.J.R. 4365(a), 29 N.J.R. 4594(a), 30 N.J.R. 336(b).
Amended (b) and (c) and added new (d) and (e).
Amended by R.1999 d.91, effective 3/15/1999.
See: 30 N.J.R. 4157(a), 31 N.J.R. 763(a).
In (b), inserted references to court awards, and to grants or other financial assistance from the Hazardous Discharge Site Remediation Fund and the Petroleum Underground Storage Tank Remediation, Upgrade and Closure Fund in the second sentence.
Amended by R.2009 d.75, effective 3/2/2009.
See: 40 N.J.R. 5101(a), 41 N.J.R. 1019(a).
In (e), inserted "the Department's administrative costs,".

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