N.J.S.A. 58:10-23.11f — Cleanup and removal of hazardous substances.

58:10-23.11f Cleanup and removal of hazardous substances. 7. a. (1) Whenever any hazardous substance is discharged, the department may, in its discretion, act to clean up and remove or arrange for the cleanup and removal of the discharge or may direct the discharger to clean up and remove, or arrange for the cleanup and removal of, the discharge. If the discharge occurs at any hazardous waste facility or solid waste facility, the department may order the hazardous waste facility or solid waste facility closed for the duration of the cleanup and removal operations. The department may monitor the discharger's compliance with any such directive. Any discharger who fails to comply with such a directive shall be liable to the department in an amount equal to three times the cost of such cleanup and removal, and shall be subject to the revocation or suspension of any license issued or permit held authorizing that person to operate a hazardous waste facility or solid waste facility. (2) (a) Whenever one or more dischargers or persons cleans up and removes a discharge of a hazardous substance, those dischargers and persons shall have a right of contribution against all other dischargers and persons in any way responsible for a discharged hazardous substance or other persons who are liable for the cost of the cleanup and removal of that discharge of a hazardous substance. In an action for contribution, the contribution plaintiffs need prove only that a discharge occurred for which the contribution defendant or defendants are liable pursuant to the provisions of subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), and the contribution defendant shall have only the defenses to liability available to parties pursuant to subsection d. of section 8 of P.L.1976, c.141 (C.58:10-23.11g). In resolving contribution claims, a court may allocate the costs of cleanup and removal among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall affect the right of any party to seek contribution pursuant to any other statute or under common law. (b) A person who has discharged a hazardous substance or is in any way responsible for the discharge of a hazardous substance who has resolved his liability to the State for cleanup and removal costs, including the payment of compensation for damage to, or the loss of, natural resources, or for the restoration of natural resources, and (i) has received a final remediation document, or (ii) has entered into an administrative or judicially approved settlement with the State, shall not be liable for claims for contribution regarding matters addressed in the settlement or the final remediation document, as the case may be. The settlement shall not release any other person from liability for cleanup and removal costs who is not a party to the settlement, but shall reduce the potential liability of any other discharger or person in any way responsible for a discharged hazardous substance at the site that is the subject of the final remediation document or the settlement by the amount of the final remediation document or the settlement. (3) In an action for contribution taken pursuant to this subsection, a contribution plaintiff may file a claim with the court for treble damages. A contribution plaintiff may be granted an award of treble damages by the court from one or more contribution defendants only upon a finding by the court that: (a) the contribution defendant is a person who was named on or subject to a directive issued by the department, who failed or refused to comply with such a directive, and who is subject to contribution pursuant to this subsection; (b) the contribution plaintiff gave 30 days' notice to the contribution defendant of the plaintiff's intention to seek treble damages pursuant to this subsection and gave the contribution defendant an opportunity to participate in the cleanup; (c) the contribution defendant failed or refused to enter into a settlement agreement with the contribution plaintiff; and (d) the contribution plaintiff (i) on or after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.), commenced remediation of the site and provided written notice to the department that the contribution plaintiff is remediating or has remediated the property pursuant to the provisions of section 30 of P.L.2009, c.60 (C.58:10B-1.3), or (ii) entered into an agreement with the department to remediate the site. Notwithstanding the foregoing requirements, any authorization to seek treble damages made by the department prior to the effective date of P.L.1997, c.278 (C.58:10B-1.1 et al.) shall remain in effect, provided that the department or the contribution plaintiff gave notice to the contribution defendant of the plaintiff's request to the department for authorization to seek treble damages. A contribution defendant from whom treble damages is sought in a contribution action shall not be assessed treble damages by any court where the contribution defendant, for good cause shown, failed or refused to enter the settlement agreement with the contribution plaintiff or where principles of fundamental fairness will be violated. One third of an award of treble damages in a contribution action pursuant to this paragraph shall be paid to the department, which sum shall be deposited in the New Jersey Spill Compensation Fund. The other two thirds of the treble damages award shall be shared by the contribution plaintiffs in the proportion of the responsibility for the cost of the cleanup and removal that the contribution plaintiffs have agreed to with the department or in an amount as has been agreed to by those parties. Cleanup and removal of hazardous substances and actions to minimize damage from discharges shall, to the greatest extent possible, be in accordance with the National Contingency Plan for cleanup and removal of oil and hazardous substances established pursuant to section 311(c)(2) of the Federal Water Pollution Control Act Amendments of 1972 (Pub.L.92-500, 33 U.S.C. s.1251 et seq.). Whenever the department acts to clean up and remove a discharge or contracts to secure prospective cleanup and removal services, it is authorized to draw upon the money available in the fund. Such money shall be used to pay promptly for all cleanup and removal costs incurred by the department in cleaning up, in removing or in minimizing damage caused by such discharge. Nothing in this section is intended to preclude removal and cleanup operations by any person threatened by such discharges, provided such persons coordinate and obtain approval for such actions with ongoing State or federal operations. No action taken by any person to contain or clean up and remove a discharge shall be construed as an admission of liability for said discharge. No person who renders assistance in containing or cleaning up and removing a discharge shall be liable for any civil damages to third parties resulting solely from acts or omissions of such person in rendering such assistance, except for acts or omissions of gross negligence or willful misconduct. In the course of cleanup or removal operations, no person shall discharge any detergent into the waters of this State without prior authorization of the commissioner. b. Notwithstanding any other provisions of P.L.1976, c.141 (C.58:10-23.11 et seq.), the department, subject to the approval of the administrator with regard to the availability of funds therefor, or a local unit as a part of an emergency response action and with the approval of the department, may clean up and remove or arrange for the cleanup and removal of any hazardous substance which: (1) Has not been discharged from a grounded or disabled vessel, if the department determines that such cleanup and removal is necessary to prevent an imminent discharge of such hazardous substance; or (2) Has not been discharged, if the department determines that such substance is not satisfactorily stored or contained and said substance possesses any one or more of the following characteristics: (a) Explosiveness; (b) High flammability; (c) Radioactivity; (d) Chemical properties which in combination with any discharged hazardous substance at the same storage facility would create a substantial risk of imminent damage to public health or safety or an imminent and severe damage to the environment; (e) Is stored in a container from which its discharge is imminent as a result of contact with a hazardous substance which has already been discharged and such additional discharge would create a substantial risk of imminent damage to public health or safety or imminent and severe damage to the environment; or (f) High toxicity and is stored or being transported in a container or motor vehicle, truck, rail car or other mechanized conveyance from which its discharge is imminent as a result of the significant deterioration or the precarious location of the container, motor vehicle, truck, rail car or other mechanized conveyance, and such discharge would create a substantial risk of imminent damage to public health or safety or imminent and severe damage to the environment; or (3) Has been discharged prior to the effective date of P.L.1976, c.141. c. If and to the extent that he determines that funds are available, the administrator shall approve and make payments for any cleanup and removal costs incurred by the department for the cleanup and removal of a hazardous substance other than petroleum as authorized by subsection b. of this section; provided that in determining the availability of funds, the administrator shall not include as available funds revenues realized or to be realized from the tax on the transfer of petroleum, to the extent that such revenues result from a tax levied at a rate in excess of $0.01 per barrel, pursuant to subsection b. of section 9 of P.L.1976, c.141 (C.58:10-23.11h), unless the administrator determines that the sum of claims paid by the fund on behalf of petroleum discharges or cleanup and removals plus pending reasonable claims against the fund on behalf of petroleum discharges or cleanup and removals is greater than 30% of the sum of all claims paid by the fund plus all pending reasonable claims against the fund. d. The administrator may only approve and make payments for any cleanup and removal costs incurred by the department for the cleanup and removal of a hazardous substance discharged prior to the effective date of P.L.1976, c.141, pursuant to subsection b. of this section, if, and to the extent that, he determines that adequate funds from another source are not or will not be available; and provided further, with regard to the cleanup and removal costs incurred for discharges which occurred prior to the effective date of P.L.1976, c.141, the administrator may not during any one-year period pay more than $18,000,000 in total or more than $3,000,000 for any discharge or related set or series of discharges. e. Notwithstanding any other provisions of P.L.1976, c.141, the administrator, after considering, among any other relevant factors, the department's priorities for spending funds pursuant to P.L.1976, c.141, and within the limits of available funds, shall make payments for the restoration or replacement of, or connection to an alternative water supply for, any private residential well destroyed, contaminated, or impaired as a result of a discharge prior to the effective date of P.L.1976, c.141; provided, however, total payments for said purpose shall not exceed $500,000 for the period between the effective date of this subsection e. and January 1, 1983, and in any calendar year thereafter. f. Any expenditures of cleanup and removal costs and related costs made by the State pursuant to this act shall constitute, in each instance, a debt of the discharger to the fund. The debt shall constitute a lien on all property owned by the discharger when a notice of lien, incorporating a description of the property of the discharger subject to the cleanup and removal and an identification of the amount of cleanup, removal and related costs expended by the State, 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 discharger 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 State for cleanup and removal, shall attach to the revenues and all real and personal property of the discharger, whether or not the discharger is insolvent. The notice of lien filed pursuant to this subsection which affects the property of a discharger subject to the cleanup and removal of a discharge shall create a lien with priority over all other claims or liens which are or have been filed against the property, except if the property comprises six dwelling units or less and is used exclusively for residential purposes, this notice of lien shall not affect any valid lien, right or interest in the property filed in accordance with established procedure prior to the filing of this notice of lien. The notice of lien filed pursuant to this subsection which affects any property of a discharger, other than the property subject to the cleanup and removal, shall have priority from the day of the filing of the notice of the lien over all other 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 subsection. g. In the event a vessel discharges a hazardous substance into the waters of the State, the cleanup and removal and related costs resulting from that discharge that constitute a maritime lien on the discharging vessel pursuant to 33 U.S.C. s.1321 or any other law, may be recovered by the Department of Environmental Protection in an action in rem brought in the district court of the United States. An impoundment of a vessel resulting from this action shall continue until: (1) the claim against the owner or operator of the vessel for the cleanup and removal and related costs of the discharge is satisfied; (2) the owner or operator of the vessel, or a representative of the owner or operator, provides evidence of financial responsibility as provided in section 2 of P.L.1991, c.58 (C.58:10-23.11g2) and satisfactorily guarantees that these costs will be paid; or (3) the impoundment is otherwise vacated by a court order. The remedy provided in this subsection is in addition to any other remedy or enforcement power that the department may have under any other law. Any action brought by the State pursuant to this subsection and any impoundment of a vessel resulting therefrom shall not subject the State to be in any way liable for a subsequent or continued discharge of a hazardous substance from that vessel. L.1976, c.141, s.7; amended 1979, c.346, s.4; 1981, c.25, s.1; 1982, c.122, s.1; 1983, c.182; 1984, c.142, s.2; 1985, c.11; 1985, c.115, s.1; 1986, c.59, ss.3,5-7; (s.5 repealed 1991, c.373, s.21); 1987, c.415; 1991, c.58, s.4; 1991, c.85, s.3; 1991, c.372; 1991, c.373, s.14; 1997, c.278, s.28; 2005, c.348, s.1; 2009, c.60, s.37. 58:10-23.11f1 Illumination for non-daylight hazardous substance transfers An owner or operator of a refinery, storage, transfer terminal, or pipeline facility, or a vessel that transports a hazardous substance, shall provide during non-daylight hours illumination for any transfer of the hazardous substance between the facility and such vessel, or among two or more vessels. Illumination shall be provided at each transfer connection point in use, and for adjacent facility or vessel areas, and surrounding waters. The intensity and area of illumination shall be sufficient in the estimation of the department, to permit the visual detection of a discharge of a hazardous substance into the land or waters of the State. To the extent practicable and necessary to effectuate the purposes of this section, the department may require illumination of locations at which underwater transmission pipelines emerge onto the lands of the State. The department shall, within one year of the effective date of this act, adopt guidelines for the implementation of its provisions. The guidelines shall, to the maximum extent practicable, be consistent with applicable United States Coast Guard standards or requirements adopted for hazardous substance transfers from vessels during non-daylight hours. The department may use monies from the New Jersey Spill Compensation Fund, as authorized pursuant to paragraph (2) of subsection b. of section 9 of P.L.1976, c.141 (C.58:10-23.11h), for program costs incurred in implementing the provisions of this act. L.1990,c.80,s.1. 58:10-23.11f2. Transfer of hazardous liquids regulated a. On the 31st day following the adoption of rules and regulations pursuant to section 5 of this act, no owner or operator of a refinery, storage, transfer terminal, or pipeline facility, or a vessel while in the waters of the State, shall transfer, or authorize or allow to be transferred any hazardous liquid between any such facility and a vessel, or among two or more vessels, unless, as prescribed by the department, either a boom or other containment device is in place as hereinafter provided, or the containment device is available, along with trained personnel, at the site of transfer operations on a stand-by basis for immediate deployment in the event of a discharge, spill or release during the transfer. In the case of (1) a transfer of a hazardous liquid between a land-based facility and a vessel, or between two or more vessels at a facility, the owner or operator of the facility shall be responsible for the containment device, trained personnel, or other containment or mitigation measures required by the department, or (2) a vessel-to-vessel transfer occurring away from a land-based facility, the owner or operator of each of the vessels involved shall be responsible therefor. b. If a containment device is required by the department to be in place during a transfer of a hazardous liquid, the device shall be deployed not less than 15 feet from the vessel or vessels prior to commencement of the transfer operation, except that in the case of a docked vessel the dock may be used to complete the encirclement of a vessel with a containment device. The provisions of this act shall not apply to the transfer of a hazardous liquid to be used solely as fuel to power a vessel. As used in this act, "hazardous liquid" shall mean a hazardous substance as such term is defined in section 3 of P.L.1976, c.141 (C.58:10-23.11b) that is in liquid form at the time of transfer of the hazardous substance from facility to vessel or from vessel-to-vessel; "list hazardous liquid" means a hazardous liquid placed on a list prepared by the department pursuant to subsection a. of section 2 of this act. L.1990,c.76,s.1. 58:10-23.11f3. Identification of hazardous liquids; use of containment device; prevention, response measures a. The department shall identify individual or categories or classes of hazardous liquids, or the circumstances of a transfer of a hazardous liquid for which a containment device may be usefully and safely deployed without posing a substantial danger to the safety of a vessel or its crew. A list of all such hazardous liquids shall be identified and published by the department in the New Jersey Register. b. The department (1) may require all facilities or vessels either to deploy, or to maintain on a stand-by basis a containment device during a transfer of any hazardous liquid listed by the department pursuant to subsection a. of this section, or (2) may require a particular facility or vessel to deploy a containment device during transfer operations for one or more list hazardous liquids, based upon the past record of the facility, or the owner or operator of a vessel, the nature of the hazards involved, including the characteristics of the hazardous liquid, the size, complexity or circumstances of the transfer, or the potential dangers to public health and safety, or to environmentally sensitive areas in reasonable proximity to the transfer operations. c. In addition to requiring a containment device to be deployed or maintained on a stand-by basis during transfer operations for a list hazardous liquid, the department shall require such other equipment or chemicals to be maintained on a stand-by basis at the site of the transfer during the transfer of a hazardous liquid from any facility or vessel for purposes of minimizing the amount of a discharge, spill or release, and containing, removing or mitigating the adverse effects therefrom. The provisions of this subsection shall also apply to any hazardous liquid whether or not a list hazardous liquid. d. The discharge prevention, control and countermeasure plan, and the discharge response, cleanup and removal contingency plan of a major facility shall set forth all of the prevention and response measures required by the department pursuant to this act. The department may, at any time, require amendments to plan provisions for transfer operations at a major facility in order to improve the discharge prevention and response capabilities of a facility. L.1990,c.76,s.2. 58:10-23.11f4. County, municipal ordinances etc., superseded Any ordinance, resolution, or regulation of a county or municipality inconsistent with the provisions of this act, including rules and regulations adopted hereunder, shall be of no effect upon final adoption of rules and regulations by the department pursuant to section 5 of this act. L.1990,c.76,s.3. 58:10-23.11f5. Violations, penalties Any person violating the provisions of this act shall be subject to the penalty and injunctive relief provisions of section 22 of P.L.1976, c.141 (C.58:10-23.11u). L.1990,c.76,s.4. 58:10-23.11f6. Rules, regulations Within one year of the effective date of this act, the department shall adopt, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations to implement the provisions of this act. Nothing in this act shall be construed to limit the authority of the department pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.) to require a major facility, as defined in section 3 of P.L.1976, c.141 (C.58:10-23.11b), to take all necessary measures pursuant thereto to improve the discharge or prevention capabilities of the facility prior to, or after the adoption of rules and regulations by the department pursuant to this act. L.1990,c.76,s.5. 58:10-23.11f7. Use of New Jersey Spill Compensation Fund monies for program costs The department may use monies from the New Jersey Spill Compensation Fund, as authorized pursuant to paragraph (2) of subsection b. of section 9 of P.L.1976, c.141 (C.58:10-23.11h), for program costs incurred in implementing the provisions of this act. L.1990,c.76,s.6. 58:10-23.11f8. Short title 1. This act shall be known and may be cited as the "Hazardous Substance Response Action Contractors Indemnification Act." L.1991,c.373,s.1; per s.22, section expired January 10, 1995. 58:10-23.11f9. Findings and declarations 2. The Legislature finds and declares that it is the public policy of this State to safely and expeditiously handle, treat, remove and dispose of hazardous substances released or spilled to the environment or at hazardous waste sites where no responsible party has been identified or has undertaken a cleanup; that the availability of an adequate supply of private contractors for performing the design, engineering and construction of cleanup or mitigation of sites contaminated by hazardous substances is essential for assuring both the expeditious cleanup of such sites and a competitive marketplace for contractor services; that hazardous substance response action contractors continue to experience considerable difficulties in obtaining environmental liability insurance at affordable prices; that even when environmental liability insurance coverage is available it is being written on a claims-made basis for limited durations; and that the interests of the State would be promoted by permitting the Department of Environmental Protection to offer indemnification to cleanup contractors where necessary to solicit qualified contractors. L.1991,c.373,s.2; per s.22, section expired January 10, 1995. 58:10-23.11f10. Definitions 3. As used in this act: "Department" means the Department of Environmental Protection. "Division" means the Division of Purchase and Property within the Department of the Treasury. "Engineering services" means services or creative work such as consultation, investigation, the evaluation, planning, and design of engineering works and systems, planning the use of land and water, engineering studies, and the administration of construction for the purpose of determining compliance with drawings and specifications, the adequate performance of which requires engineering education, training, and experience, and the application of special knowledge of the mathematical, physical, and engineering sciences. "Hazardous substance" means a hazardous substance as defined in section 3 of P.L.1976, c.141 (C.58:10-23.11b). "Remediation" means the cleanup, removal, mitigation, control or management of a discharge of a hazardous substance. "Response action contract" or "contract" means a contract entered into by a response action contractor with the department, or any other agency of the State, or with the division on behalf of the department to provide services or work for, or relating to, the remediation, or attempted remediation, of a hazardous substance, or to prevent or mitigate damages to the public health, safety, or welfare, including damages to public or private property, pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.), which services or work shall include evaluation, planning, engineering, surveying, design, construction, or other related services or work. "Response action contractor" or "contractor" means a person, including an employee or subcontractor of a person, who enters into a response action contract, and, for the purposes of indemnification by the department, a surety that issues a bid, performance, or payment bond for the contractor on the response action contract, and who begins activities to meet the obligations under such bond but only in connection with such activities or obligations. L.1991,c.373,s.3; per s.22, section expired January 10, 1995. 58:10-23.11f11. Indemnification of the contractor; conditions 4. As part of a response action contract awarded by or on behalf of the department, the department may agree to defend and indemnify the contractor against claims and judgments for death or bodily injury to persons or loss and damage to property resulting from the contamination of the environment by hazardous substances as a direct consequence of the performance of the response action contract. This provision applies only to contracts wholly funded with State monies, including monies in the New Jersey Spill Compensation Fund established pursuant to section 10 of P.L.1976, c.141 (C.58:10-23.11i). The department may determine to offer indemnification when it is deemed necessary to solicit qualified contractors and to promote adequate competition among qualified bidders. The department may offer indemnification of up to $25 million per occurrence and $50 million per contract as it deems necessary to solicit qualified contractors, depending on the nature, risk and size of the job. Any indemnification offered by the department shall be subject to the exemptions and deductible limits established herein and to terms and conditions established by the department with the advice of the Attorney General. As part of a bidding process, the department may give preference to the extent a bidder is covered by an occurrence based policy of environmental impairment liability insurance. Any such preference shall be based on determinations articulated in the bid documents as to the relative value and cost to the State of insurance and indemnification. Nothing in this act shall be construed to: (1) limit the right of an eligible claimant to pursue any remedy available under statutory or common law against a discharger or person in any way responsible for a discharge pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g.), for any claim amount in excess of the liability limits established pursuant to this act; or (2) authorize indemnification of a response action contractor for a claim by a person in the employment of the contractor, including any subcontractor engaged by the contractor, or any employee thereof. Nothing in this act shall be construed to authorize indemnification of a discharger or person in any way responsible for a discharge or of a response action contractor engaged in a remediation action on behalf of a discharger or person in any way responsible for a discharge whether or not the remediation action is funded in part by the State. L.1991,c.373,s.4; per s.22, section expired January 10, 1995. 58:10-23.11f12. Indemnification agreements 5. a. An indemnification agreement entered into between the State and a response action contractor shall specify and allocate the responsibility of the parties for the payment of claims or judgments covered by the indemnification agreement as follows: (1) the response action contractor shall be responsible, for all claims or judgments resulting from a single occurrence, for a total payment of an amount equal to either (a) 30% of the amount of the response action contract or (b) $1,500,000, whichever is less; (2) the response action contractor shall be responsible, for all claims or judgments resulting from a single occurrence, for a total payment in an amount equal to 10% of either (a) the amount of the total claims or judgments that are in excess of the amount for which the response action contractor is responsible pursuant to paragraph (1) of this subsection, or (b) the amount of indemnification for such occurrence set forth in the indemnification agreement that is in excess of the amount for which the response action contractor is responsible pursuant to paragraph (1) of this subsection, whichever is less; (3) the State shall be responsible for payment of one or more claims or judgments only up to the amount of indemnification set forth for such occurrence in the indemnification agreement, less the amounts for which the response action contractor is responsible pursuant to paragraphs (1) and (2) of this subsection; (4) a response action contractor shall be responsible for the payment of a claim or judgment covered by an indemnification agreement only to the extent of the amounts for which the response action contractor is responsible pursuant to paragraphs (1) and (2) of this subsection. A response action contractor shall not be responsible for payment of any part of a claim or judgment arising from performance under a response action contract, covered by an indemnification agreement, where the amount of available indemnification for those claims or judgments has been exhausted. Nothing in this subsection shall be construed to limit the liability or responsibility of a response action contractor for payment of any claim or judgment except where the response action contractor has entered into an indemnification agreement with the State pursuant to this act and to the extent provided in that agreement. The allocations and limits for the payment of claims or judgments for the State and response action contractors pursuant to this subsection do not apply to claims or judgments covered by the provisions of subsection c. of this section. b. The department is authorized to lower, on a contract-by-contract or other basis, the amount for which the response action contractor shall be responsible, pursuant to subsection a. of this section, for all claims or judgments covered by the indemnification agreement. The department may lower the amount for which the response action contractor shall be responsible for specific kinds of services in a contract, including, but not limited to engineering services, or for all of the services provided in a contract. The department shall make the determination to lower the amount for which the response action contractor shall be responsible based on the availability of environmental liability insurance for contractors in the private market, on the number and quality of bidders, or on other factors the department deems relevant. c. Legal defense and indemnification shall not apply to (1) claims that are found to have arisen from actions involving gross negligence, willful misconduct, fraud, intentional tort, bad faith, intentional breach of contract, or criminal misconduct by the contractor, (2) claims or judgments for punitive or exemplary damages, or (3) claims involving actions outside the scope of the response action contract. d. Legal defense and indemnification provided to a contractor shall be on such terms and conditions as shall be prescribed by the department with the advice of the Attorney General consistent with the provisions of this act. e. Legal defense and indemnification of a contractor pursuant to this section or section 9 of P.L.1991, c.373 (C.58:10-23.11f16), shall not bar the State from exercising any available legal remedies for the enforcement of a contract between, or on the behalf of, the department or other contracting agency and the contractor, the recovery of damages to which the department or agency may be entitled as a result of a contractor's failure to perform the contract, or for the recovery by the Attorney General of funds expended for the defense or indemnification of a contractor if the defense was undertaken in response to a claim brought against the contractor that is found to have arisen from gross negligence, willful misconduct, fraud, intentional tort, bad faith, intentional breach of contract, or criminal misconduct. f. No person other than a contractor shall have the right to enforce a right of legal defense and indemnification pursuant to this section. L.1991,c.373,s.5; per s.22, section expired January 10, 1995. 58:10-23.11f13. Initiation of defense and indemnification, cooperation 6. A contractor shall not, except for good and substantial cause, be entitled to legal defense and indemnification by the Attorney General pursuant to this act unless within 10 calendar days of receipt of any summons, complaint, process, notice, demand or pleading subject to legal defense and indemnification, the contractor delivers, by certified mail or personal delivery, the original or a copy of the summons, complaint, process, notice, demand or pleading to the department or other contracting agency, and the Attorney General. Delivery of notice shall constitute an agreement by the contractor that the Attorney General shall be responsible for the conduct of the defense for the claim amount in excess of the contractor's deductible in a manner that the Attorney General deems to be in the best interests of the contractor and the State, including authority to enter into a negotiated settlement of that excess amount. The contractor shall cooperate fully with the Attorney General's defense. The Attorney General shall submit a certified voucher to the State for payment of the amount of the judgment or settlement and court costs. No settlement shall be entered into by a contractor or his authorized representative if the amount of the settlement exceeds the contractor's deductible unless the settlement is approved by the Attorney General. If the contractor enters into such a settlement without the Attorney General's approval, this shall be deemed a waiver by the contractor of any right to indemnification for the settlement. L.1991,c.373,s.6; per s.22, section expired January 10, 1995. 58:10-23.11f14. Notice of claim, periods of limitations 7. a. Notwithstanding the provision of any other law to the contrary, a person shall be barred from recovering against a response action contractor indemnified pursuant to P.L.1991, c.373 (C.58:10-23.11f8 et al.) for injury to persons, or damage to, or loss of, property if: (1) the claimant fails to file a notice of claim with the contractor within 90 days of accrual of the claim, except that the Superior Court may permit a claimant to file a notice at any time within one year of accrual of the claim provided that the contractor and the State are not substantially prejudiced thereby, and provided further that the claimant shows sufficient reasons for his failure to file a notice of claim within the 90 days; (2) two years have elapsed since accrual of the claim and the claimant has failed to file an action therefor; or (3) the claimant or his authorized representative entered into a settlement with respect to the claim. b. The provisions of this section shall not apply to a claim not subject to legal defense and indemnification pursuant to P.L.1991, c.373 (C.58:10-23.11f8 et al.). Nothing in this section shall prohibit an infant or incompetent person from commencing an action under this act within the time limitations specified in this section, after his coming or being of full age or sane mind. L.1991,c.373,s.7; per s.22, section expired January 10, 1995. 58:10-23.11f15. Representation other than by Attorney General; intervention 8. a. In the event the Attorney General determines that (1) appearing and defending a contractor pursuant to P.L.1991, c.373 (C.58:10-23.11f8 et al.) involves an actual or potential conflict of interest between the State and the contractor, or (2) the act or omission giving rise to the claim is either not within the scope of the contract, or involves gross negligence, willful misconduct, fraud, intentional tort, bad faith, intentional breach of contract, or criminal misconduct by the contractor, the Attorney General shall decline in writing to appear or defend, or shall promptly withdraw as attorney for the contractor. The contractor thereupon may employ his own attorney to appear and defend against the claim. b. If the Attorney General declines to appear and defend a contractor by reason of an actual or potential conflict of interest, the Attorney General shall authorize indemnification of the contractor for the amount of the judgment in excess of the amount of contractor's indemnification deductible and less the copayment, and reasonable legal expenses and court costs incurred by the contractor in defending against the amount of the claim or judgment in excess of the contractor's deductible. c. If the Attorney General declines to appear and defend, or withdraws from defending, on the grounds that the act or omission giving rise to the claim or costs was not within the scope of the contract, or was the result of gross negligence, willful misconduct, fraud, intentional tort, bad faith, intentional breach of contract, or criminal misconduct on the part of the contractor, but the court finds that the act or omission was within the scope of the contract, or was not the result of gross negligence, willful misconduct, fraud, intentional tort, bad faith, intentional breach of contract, or criminal misconduct on the part of the contractor, the Attorney General shall authorize indemnification of the contractor for the amount of the judgment in excess of the amount of the contractor's indemnification deductible, and reasonable legal expenses and court costs incurred by the contractor in defending against the amount of the claim or judgment in excess of the contractor's deductible. d. The State shall have the right to intervene in any case that may involve State indemnification and the court shall, at the request of the State, make a finding as to whether the contractor's actions were a result of gross negligence, willful misconduct, fraud, intentional tort, bad faith, intentional breach of contract, or criminal misconduct. L.1991,c.373,s.8; per s.22, section expired January 10, 1995. 58:10-23.11f16. Submission of judgment to Attorney General 9. A certified copy of any judgment or settlement entered into pursuant to section 8 of P.L.1991, c.373 (C.58:10-23.11f15) shall be submitted to the Attorney General for a determination as to whether the judgment is final and subject to indemnification. If the judgment is final and subject to indemnification, the Attorney General shall submit a certified voucher to the State for payment of the amount in the manner specified in section 8. L.1991, c.373.s.9; per s.22, section expired January 10, 1995. 58:10-23.11f17. Award for damages 10. A judgment or settlement against a contractor, where indemnification is provided shall be subject to such applicable limitations or conditions as are set forth in N.J.S.59:9-2 through 59:9-5. In determining the amount of an award for damages to property subject to the provisions of this section, the court may reduce the amount of the award for damages to property by all or a portion of the enhancement value resulting from the remediation action taken or paid for by the State. L.1991, c.373.s.10; per s.22, section expired January 10, 1995. 58:10-23.11f18. Subrogation; construction with other law 11. a. The State is subrogated to any rights of a claimant paid by the State for an indemnified claim or judgment, including court and legal costs, against a discharger or person in any way responsible for a discharge pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g). b. Nothing in P.L.1991, c.373 (C.58:10-23.11f8 et al.) shall be construed to limit the liability of a party responsible for a discharge for all costs recoverable pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g). c. Nothing in this act shall be construed to affect any of the defenses and immunities available to the State pursuant to the "New Jersey Tort Claims Act," N.J.S.59:1-1 et seq., or any other provisions contained therein, for claims against the State or any of its employees. L.1991, c.373.s.11; per s.22, section expired January 10, 1995. 58:10-23.11f19. Performance surety bond 17. a. When hazardous substance remediation is to be undertaken under contract with the department, and a surety bond is required pursuant to N.J.S.2A:44-143, the officer or agent contracting on behalf of the department shall require a performance surety bond with good and sufficient sureties, with an additional obligation for the payment by the contractor, and by all subcontractors and suppliers having a direct, contractual relationship with the response action contractor, or with the owner of the site, as the case may be, for all labor performed or materials, provisions, provender, or other supplies, fuels, oils, implements, or machinery used or consumed in such remediation work. When such contract is to be performed for a sum not exceeding $20,000, the department may at its discretion waive the bond requirement of this section. b. A surety's obligation shall not extend to any claim for damages based upon alleged negligence that resulted in personal injury, wrongful death, or damage to real or personal property, and no bond shall in any way be construed as a liability insurance policy. The surety shall in no event be liable on bonds to indemnify or compensate the obligee for loss or liability arising from personal injury or property damage whether or not caused by a breach of the bonded contract. Nothing herein shall relieve the surety's obligation to guarantee the contractor's performance of all conditions of the contract. Only the obligee named on the bond, and any person performing labor for a contractor or subcontractor covered by the surety bond, or any person providing materials for remediation work for which the bond is required pursuant to this section, shall have any claim against the surety under the bond. Unless otherwise provided for by the division in the bond, in the event of a default, the surety's liability on a performance bond shall be only for the cost of completion of the contract work in accordance with the plans and specifications, less the balance of funds remaining to be paid under the contract, up to the penal sum of the bond. L.1991,c.373,s.17. 58:10-23.11f20. Rules, regulations 19. Within 120 days of the effective date of this act, the State Treasurer and the Attorney General as necessary shall, pursuant to "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), respectively adopt rules and regulations to implement the provisions of this act. L.1991,c.373,s.19; per s.22, section expired January 10, 1995. 58:10-23.11f21. Act not applicable to certain contracts or agreements 20. The provisions of this amendatory and supplementary act shall not affect any contract or agreement for legal defense and indemnification entered into by the Department of Environmental Protection with a contractor pursuant to P.L.1986, c.59 prior to the effective date of P.L.1991, c.373 (C.58:10-23.11f8 et al.). L.1991,c.373,s.20. 58:10-23.11f22 Owners of certain contaminated real property, immunity from liability. 1. a. The provisions of any other law, or any rule or regulation adopted pursuant thereto to the contrary notwithstanding, 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 the payment of compensation for damage to, or the loss of, natural resources, or for the restoration of natural resources on or off the property in connection with the discharge of a hazardous substance at the property, pursuant to any statutory or civil common law, to any person, or to the State, provided that: (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 cleanup and removal costs pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g); and (3) the person has not, by contract, using the term of art "natural resource damages," expressly assumed the liability for the payment of compensation for damage to, or loss of, natural resources, or for the restoration of natural resources, that were injured by a discharge of a hazardous substance at the property. b. The provisions of any other law, or any rule or regulation adopted pursuant thereto to the contrary notwithstanding, 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 cleanup and removal costs for the discharge of a hazardous substance that has migrated from the property provided that: (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 cleanup and removal costs pursuant to section 8 of P.L.1976, c.141 (C.58:10-23.11g); (3) the person can demonstrate through the performance of a remedial investigation that the contamination identified on nearby or adjoining property, which is similar or identical to contamination on the property, originates from more than one source; (4) the person can demonstrate through the performance of a remedial investigation that a remedial action for the contamination off the property is not necessary to limit the risk to the public health and the environment from that contamination; and (5) the person has not, by contract, voluntarily assumed the liability from the person liable for cleanup and removal costs, for addressing the risks to public health and the environment from a discharge of a hazardous substance on the property that has migrated from the property prior to that person's acquisition of the property. Only the person who is liable to clean up and remove the contamination pursuant to 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 shall be liable for any additional remediation costs or cleanup and removal costs necessary. L.2005,c.4,s.1.

This is the verbatim text of N.J.S.A. 58:10-23.11f, retrieved from the New Jersey Legislature's public statute corpus. Statutes are amended periodically — for the most current version, check the external source link above. Kyzer is not a law firm and this page is not legal advice.