USA – NEW JERSEY Law and Practice Contributed by: Nicole Dory, Christina Sartorio Ku, Meredith Rubin and Camryn Goldstein, Connell Foley LLP
parties. For instance, pursuant to the Spill Act, any person “in any way responsible” for hazardous sub- stances or the discharge of such substances, may be held liable to the state, or to other parties through contribution actions, for damages arising from the release or discharge. While a new owner of a con- taminated property may be protected by an indemnity agreement with the prior owner, that protection is only as strong as the solvency or availability of the prior owner. Should the prior owner become insolvent, the new owner would again be liable to the NJDEP or third parties for damages arising from the contamination on site, unless some other protection (such as innocent purchaser defences) applies. Similarly, pursuant to the ISRA, while the current owner/operator is responsible for completing its ISRA obligations prior to closing or following ceas- ing of site operations, both tenants and landlords are liable to the NJDEP for this compliance. The NJDEP often leaves it to the landlord and tenant to determine, amongst themselves, which party will be expected to complete the required ISRA investigation, reme- diation, and monitoring. Such an apportionment of liability is typically included in the lease agreement. However, again, if one party ultimately proves to be insolvent, either party will remain liable to NJDEP. 12. Contaminated Land 12.1 Key Laws Governing Contaminated Land The NJDEP is charged with overseeing contamination in order to protect public health and the environment. New Jersey’s cleanup scheme seeks to encourage efficient, complete remediation. New Jersey’s statutes and regulations promulgated by NJDEP impose strict requirements for conducting effective remediation of contaminated land, including requiring oversight by remediation professionals and conforming to remediation standards. NJDEP may ultimately take direct oversight of a remediation if deemed necessary. The three major statutes govern- ing contaminated land are the Spill Act, SRRA, and the Brownfields and Contaminated Site Remediation Act. Their implementing regulations provide additional
guidance for investigation and remediation. Howev- er, generally, remediation is conducted through the oversight of an LSRP who steps into the shoes of the NJDEP for the majority of site investigations and remediation within the state. New Jersey’s regulations provide for compliance with technical and administrative requirements for site remediation. In addition, a discharge may be subject to other statutes and regulations depending on the type of discharge, including federal laws such as the Toxic Substances Control Act (TSCA) or the Resource Conservation and Recovery Act. 12.2 Clearing Contaminated Land The party or parties responsible for the discharge are responsible for remediation. Responsible par- ties include current owners or operators of the sub- ject property, owners of the property at the time of discharge, or those with security interests who have actively participated in management or regulation of the site. Private parties may not delegate their liabil- ity as owed to the NJDEP to another party, but they may contractually agree to allocate liability and costs amongst themselves. The EPA’s Region 2 also oversees federal remedia- tions under the CERCLA. While similar to the state’s Spill Act, there are a number of differences between the two laws. For instance, while petroleum products are excluded from CERCLA liability, they are covered by the Spill Act. Moreover, while CERCLA identifies specific categories of persons who are considered potentially responsible parties, the Spill Act permits liability for any person “in any way responsible” for a discharge of hazardous substances. On the other hand, while Spill Act liability will generally only attach if the discharge is connected to the environmental dam- age, CERCLA’s causation standard is more relaxed and only requires “some connection” to the discharge. Under the Spill Act, few defences for responsible parties exist, but one defence is the “innocent pur- chaser” exception to liability, which protects parties that unknowingly purchase contaminated property despite making “all appropriate inquiries” prior to the site acquisition. This defence requires that a prospec- tive buyer conduct appropriate environmental due
461 CHAMBERS.COM
Powered by FlippingBook