N.J. Admin. Code § 7:1I-2.6

Current through Register Vol. 56, No. 9, May 6, 2024

Section 7:1I-2.6 - Claims by responsible parties or by owners or operators of a sanitary landfill facility

(a) No responsible party for a particular sanitary landfill facility shall receive compensation from the Fund for damages proximately resulting from the very sanitary landfill facility for which they are a responsible party.

(b) No owner or operator for a particular sanitary landfill facility shall receive compensation from the Fund for damages proximately resulting from the very sanitary landfill facility for which they are an owner or operator.

(c) No person who at any time deposited, disposed or otherwise discarded solid waste on or into any land at a particular sanitary landfill facility shall receive compensation from the Fund for damages proximately resulting from the very sanitary landfill facility at which they, at any time, deposited, disposed or otherwise discarded solid waste. This express prohibition shall particularly apply to any person who at any time hauled or carted solid waste to the sanitary landfill facility in question.

(d) No person who benefits from a covenant not to sue pursuant to 58:10B-13.1 or 13.2 for a remediation that involves the use of engineering controls at a sanitary landfill facility, or who acquired the sanitary landfill facility after the issuance of a final remediation document for a remediation at the sanitary landfill facility 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, shall receive compensation from the Fund for damages proximately resulting from the very sanitary landfill facility for which they are an owner, operator, or otherwise responsible party.

(e) No person who 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 a sanitary landfill facility, or who acquired the sanitary landfill facility after the issuance of a final remediation document for a remediation at the sanitary landfill facility that involves only the use of institutional controls shall receive compensation from the Fund for damages proximately resulting from removing the institutional control at the very sanitary landfill facility for which they are an owner, operator or otherwise responsible party.

(f) Notwithstanding (b), (d) and (e) above, an owner or operator may be eligible for damages if such owner or operator 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 a sanitary landfill facility is located, has been located, had been located or at any time was located on the subject property, 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. In order for a person to satisfy the requirement to engage in a diligent and thorough inquiry into previous ownership and uses of the property, a person must perform a preliminary assessment and site investigation in accordance with N.J.S.A. 58:10-23.1 1g(d)(2)(d) and N.J.A.C. 7:26E-3;

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 an affirmative 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 (d)1 above shall govern eligibility of the government entity's claim;

3. The claimant is the current owner of the sanitary landfill facility who acquired the sanitary landfill facility after the facility ceased operating, but prior to the effective date of the Act, January 1, 1982, and took no part in the operation of the sanitary landfill facility; or

4. The claimant acquired the sanitary landfill facility after the issuance of a final remediation document concerning the sanitary landfill facility or a portion of the sanitary landfill facility 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 sanitary landfill facility; and

iii. The claim is for the payment of damages in response to a Department order that the claimant conduct additional remediation at the sanitary landfill facility, except if the order is for any additional remediation that is required to remove an institutional control.

N.J. Admin. Code § 7:1I-2.6

Amended by R.1999 d.91, effective 3/15/1999.
See: 30 N.J.R. 4157(a), 31 N.J.R. 763(a).
Inserted new (d) and (e); and recodified former (d) as (f), made internal citation changes, and added 3 and 4 and made a corresponding language change.
Special amendment, R.2009 d.361, effective 11/4/2009 (to expire May 4, 2011).
See: 41 N.J.R. 4467(a).
In (d) and (e), deleted "issued by the Department" following "sue", inserted "or 58:10C-31" and substituted "issuance of a final remediation document" for "Department issued a no further action letter"; in the introductory paragraph of (f)4, substituted "issuance of a final remediation document" for "Department issued a No Further Action letter"; and in (f)4i, substituted "final remediation document" for "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).