58:10-23.11g12 Exemption from liability for cleanup and removal costs, certain; limitations.

2. a. (1) Notwithstanding the provisions of section 8 of P.L.1976, c.141 (C.58:10-23.11g), any rule or regulation adopted pursuant thereto, or any other law to the contrary, any person who discharges, or is in any way responsible for a discharged hazardous substance, at a site included on the National Priorities List pursuant to the "Comprehensive Environmental Response, Compensation and Liability Act of 1980," 42 U.S.C. s.9601 et seq., where the total amount of material containing hazardous substances discharged by that person at the site is in an amount less than 110 gallons of liquid material or less than 200 pounds of solid material, shall not be liable for cleanup and removal costs or for the remediation of the site.

(2) The liability protection provided in paragraph (1) of this subsection shall not apply: (a) if the Commissioner of Environmental Protection determines, in writing, that the discharged hazardous substance contributed significantly, or could contribute significantly, to the cost of the remediation or the cleanup and removal; (b) if the person who discharges, or is in any way responsible for a discharged hazardous substance, impedes the performance of the cleanup at the site or fails to comply with a request for information issued by the department pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.); or (c) if the person has been convicted of a criminal offense for the conduct to which the liability protection would otherwise apply.

(3) In an action for contribution brought pursuant to paragraph (2) of subsection a. of section 7 of P.L.1976, c.141 (C.58:10-23.11f), the contribution plaintiff shall have the burden of proof to demonstrate that the person does not meet the conditions for the protection from liability as provided in paragraph (1) of this subsection.

b. (1) Notwithstanding the provisions of section 8 of P.L.1976, c.141 (C.58:10-23.11g), any rule or regulation adopted pursuant thereto, or any other law to the contrary, any person who discharges, or is in any way responsible for a discharged hazardous substance, at a site included on the National Priorities List pursuant to the "Comprehensive Environmental Response, Compensation and Liability Act of 1980," 42 U.S.C. s.9601 et seq., shall not be liable for cleanup and removal costs or for the costs of remediation of the site if the person can demonstrate:

(a) the discharged hazardous substance consisted solely of municipal solid waste; and

(b) (i) the discharged hazardous substance originated from a residence,

(ii) the discharged hazardous substance originated from a business entity that, during the three years preceding the discharge, employed an average of not more than 100 full-time workers, or the equivalent, and is a small business concern as defined in the federal "Small Business Act," 15 U.S.C. s.631 et seq., from which all of the municipal solid waste attributable to the entity at the site was generated, or

(iii) the municipal solid waste originated from an organization described in section 501(c)(3) of the federal Internal Revenue Code, 26 U.S.C. s.501(c)(3), that is exempt from taxation pursuant to section 501(a) of the federal Internal Revenue Code, 26 U.S.C. s.501(a), and during the taxable year prior to discharge, the organization employed not more than 100 full-time workers, or the equivalent, at the location from which the municipal solid waste originated.

(2) The liability protection provided in paragraph (1) of this subsection shall not apply: (a) if the Commissioner of Environmental Protection determines, in writing, that the municipal solid waste contributed significantly, or could contribute significantly, to the cost of the remediation or the cleanup and removal; (b) if the person who discharged, or is in any way responsible for a discharged hazardous substance, impedes the performance of the cleanup at the site or fails to comply with a request for information issued by the department pursuant to P.L.1976, c.141 (C.58:10-23.11 et seq.); or (c) if the person has been convicted of a criminal offense for the conduct to which the liability protection would otherwise apply.

(3) In an action for contribution brought pursuant to paragraph (2) of subsection a. of section 7 of P.L.1976, c.141 (C.58:10-23.11f), the contribution plaintiff shall have the burden of proof to demonstrate that the person does not meet the conditions for protection from liability as provided in paragraph (1) of this subsection.

c. Any person who brings a contribution action pursuant to paragraph (2) of subsection a. of section 7 of P.L.1976, c.141 (C.58:10-23.11f) after the effective date of this section shall be liable to the defendant for all reasonable costs of defending the action, including all reasonable attorney's fees and expert witness fees, if the defendant is not liable for contribution because of a protection from liability as provided in this section.

d. As used in this section, "municipal solid waste" means solid waste of the type generated by a household or solid waste generated by a commercial, industrial, or institutional entity that is essentially the same as waste generated by a household, is collected and disposed of with other municipal waste as part of the normal municipal solid waste collection service, and contains a relative quantity of hazardous substances contained in waste generated by a typical single family household. Municipal solid waste may include, but need not be limited to, food and yard waste, paper, clothing, appliances, consumer product packaging, disposable diapers, office supplies, cosmetics, glass and metal food containers, elementary or secondary school science laboratory waste, and household hazardous waste.

L.2005,c.43,s.2.