58:11-63.2 Acquiring entity not responsible for prior discharge of hazardous substance; immunity from liability; exceptions.

8. The provisions of any law, or rule or regulation adopted pursuant thereto to the contrary notwithstanding, whenever a public or private entity receives an order pursuant to section 3 of P.L.1981, c.347 (C.58:11-61) to acquire a small water company, small sewer company, or both, the designated acquiring public or private entity shall not be deemed the discharger or responsible party for a discharge of a hazardous substance that occurred prior to the acquisition and is attributed to the facilities being acquired, and shall not be liable for any required cleanup and removal costs or damages resulting from any such discharge of a hazardous substance. As a condition of, and at the time of the acquisition, the designated acquiring public or private entity shall conduct a preliminary assessment and a site investigation of the facilities to be acquired to ascertain the presence and the levels of any hazardous substance. Neither the designated acquiring public or private entity, the service users of the small water company or small sewer company being acquired, or the users of the designated acquiring public or private entity's services shall have any liability for cleanup and removal costs relating to any hazardous discharge identified by the site investigation conducted pursuant to this section as being a pre-acquisition hazardous discharge, provided that the designated acquiring public or private entity shall exercise reasonable care in addressing any environmental contamination at the facilities upon acquisition.

The exemption from liability granted to an acquiring public or private entity pursuant to this section shall not apply to the designated acquiring public or private entity's liability, pursuant to any law or rule or regulation, for arranging for the off-site disposal or treatment of a hazardous substance or for transporting and disposing of a hazardous substance at an off-site facility selected by the designated acquiring public or private entity.

Nothing in this section shall prohibit or limit the right of the Department of Environmental Protection to undertake a cleanup of the property or to obtain a lien on the property for the cost of a cleanup pursuant to section 7 of P.L.1976, c.141 (C.58:10-23.11f). Any recovery of cleanup and removal costs from an acquiring public or private entity pursuant to a lien obtained by the Department of Environmental Protection shall be limited to the actual financial benefit realized by the designated acquiring public or private entity solely due to a cleanup or removal action. Recovery by the Department of Environmental Protection shall be conditioned upon the department providing a detailed financial analysis to the designated acquiring public or private entity demonstrating that the actual financial gain realized by the designated acquiring public or private entity is due solely to the cleanup or removal action. The acquiring entity shall have 30 days to notify the department, in writing, of any dispute relating to the financial analysis or the department's determination of actual financial gain. The Department of Environmental Protection shall negotiate, for a period not to exceed 30 days, with the designated acquiring public or private entity to resolve any dispute relating to the financial analysis or the department's determination of actual financial gain identified by the designated acquiring public or private entity prior to imposition of a lien. The department may waive any lien or recovery if warranted by the circumstances.

As used in this section "small water company" and "small sewer company" shall have the same meaning as in section 1 of P.L.1981, c.347 (C.58:11-59).

L.1999,c.296,s.8.