N.J. Admin. Code § 7:1J-2.7 - Claims by responsible parties or by owners or occupants of property from which discharge has emanated

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

(a) If a person in any way responsible for a discharge which is the subject of the claim, or for any hazardous substance which is the subject of the claim makes a claim in connection with the subject discharge, the claim shall be ineligible for compensation from the Fund unless:
1. The claimant is the owner or operator of a major facility or vessel responsible for the discharge; and
2. The claimant establishes one or more of the defenses provided under N.J.S.A. 58:10-23.1 1g(d).
(b) If, after a discharge occurs, a person purchases or otherwise voluntarily acquires or obtains title to the land from which the discharge emanated, claims by such purchaser in connection with the discharge are ineligible for compensation from the Fund, unless such purchaser can establish to the satisfaction of the Department that the claim satisfies one of the following requirements:
1. Despite exercising reasonable diligence and intelligence before purchasing or otherwise acquiring or obtaining title to the land, the claimant did not discover until after purchasing or otherwise acquiring or obtaining title to the land that any hazardous substance has been discharged or was discharging from the property in question; and, before purchasing or otherwise acquiring or obtaining title to the land, the claimant conducted a diligent and thorough inquiry into previous ownership and uses of the property;
2. The claimant is a government entity and acquired the property by escheat or other involuntary transfer or by operation of law, and not by any affirmative or voluntary act such as exercise of the power of eminent domain. If the government entity acquired or obtained title to the property by an affirmative or voluntary act, the standard set forth in (b)1 above shall govern eligibility of the government entity's claim; or
3. The claimant acquired the subject property after the issuance of a final remediation document concerning the subject property or a portion of the subject property and all of the following apply:
i. The remediation which is the subject of the final remediation document involves the use of an institutional control only;
ii. The claimant is a person who is relieved from liability pursuant to N.J.S.A. 58:10-23.1 1g(d) or (f) for the contamination at the subject property; and
iii. The claim is for the payment of damages in response to a Department order that the claimant conduct additional remediation at the subject property; except if the order is for any additional remediation that is required to remove an institutional control.
(c) Notwithstanding (a)2 above, a claimant who is relieved from liability pursuant to N.J.S.A. 58:10-23.1 1g(d) is not eligible for compensation from the Fund if the claimant:
1. Benefits from a covenant not to sue pursuant to 58:10B-13.1 or 13.2 for a remediation that involves engineering controls at the property, or acquired the subject property after the issuance of the final remediation document for a remediation at the subject property that involves the use of engineering controls and seeks payment for damages relating to the real property and remediation covered by the covenant not to sue; or
2. Benefits from a covenant not to sue pursuant to 58:10B-13.1 or 13.2 for a remediation that involves only the use of institutional controls at the subject property, or acquired the subject property after the issuance of a final remediation document for a remediation at the subject property that involves only the use of institutional controls, if the damages claimed proximately result from removing the institutional controls from the subject property.

Notes

N.J. Admin. Code § 7:1J-2.7
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), added 3 and made a corresponding language change; and added (c).
Special amendment, R.2009 d.361, effective 11/4/2009 (to expire May 4, 2011).
See: 41 N.J.R. 4467(a).
In the introductory paragraph of (b)3, substituted "issuance of a final remediation document" for "Department issued a No Further Action letter"; in (b)3i, substituted "final remediation document" for "No Further Action letter"; and in (c)1 and (c)2, deleted "issued by the Department" following "sue", inserted "or 58:10C-31" and substituted "issuance of the final remediation document" for "Department issued a no further action letter".
Administrative correction.
See: 42 N.J.R. 778(a).
Readoption of special amendment, R.2011 d.251, effective 9/8/2011.
See: 43 N.J.R. 1077(a), 43 N.J.R. 2581(b).
Provisions of R.2009 d.361 readopted with changes incorporated at 42 N.J.R. 778(a).

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