ASSEMBLY, No. 786

STATE OF NEW JERSEY

Introduced Pending Technical Review by Legislative Counsel

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Assemblywoman FARRAGHER

An Act concerning municipal solid waste, and amending P.L.1976, c.141 (C.58:10-23.11 et seq.).

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. Section 3 of P.L.1976, c.141 (C.58:10-23.11b) is amended to read as follows:

    3. [Unless the context clearly indicates otherwise, the following terms shall have the following meanings] As used in this act:

    a. "Administrator" means the chief executive of the New Jersey Spill Compensation Fund;

    b. "Barrel" means 42 United States gallons or 159.09 liters or an appropriate equivalent measure set by the director for hazardous substances which are other than fluid or which are not commonly measured by the barrel;

    c. "Board" means a board of arbitration convened by the administrator to settle disputed disbursements from the fund;

    d. "Cleanup and removal costs" means all costs associated with a discharge, incurred by the State or its political subdivisions or their agents or any person with written approval from the department in the: (1) removal or attempted removal of hazardous substances, or (2) taking of reasonable measures to prevent or mitigate damage to the public health, safety, or welfare, including, but not limited to, public and private property, shorelines, beaches, surface waters, water columns and bottom sediments, soils and other affected property, including wildlife and other natural resources, and shall include costs incurred by the department for the indemnification and legal defense of contractors pursuant to subsection a. of section 7 of this act, subject to the appropriation by law of moneys from the General Fund to the fund to defray these costs;

    e. "Commissioner" means the Commissioner of Environmental Protection;

    f. "Department" means the Department of Environmental Protection;

    g. "Director" means the Director of the Division of Taxation in the Department of the Treasury;

    h. "Discharge" means any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of hazardous substances into the waters or onto the lands of the State, or into waters outside the jurisdiction of the State, when damage may result to the lands, waters or natural resources within the jurisdiction of the State;

    i. "Fair market value" means the invoice price of the hazardous substances transferred, including transportation charges; but where no price is so fixed, "fair market value" shall mean the market price as of the close of the nearest day to the transfer, paid for similar hazardous substances, as shall be determined by the taxpayer pursuant to rules of the director;

    j. "Fund" means the New Jersey Spill Compensation Fund;

    k. "Hazardous substances" means the "environmental hazardous substances" on the environmental hazardous substance list adopted by the department pursuant to section 4 of P.L.1983, c.315 (C.34:5A-4); such elements and compounds, including petroleum products, which are defined as such by the department, after public hearing, and which shall be consistent to the maximum extent possible with, and which shall include, the list of hazardous substances adopted by the federal Environmental Protection Agency pursuant to section 311 of the federal Water Pollution Control Act Amendments of 1972, Pub.L. 92-500, as amended by the Clean Water Act of 1977, Pub.L. 95-217 (33 U.S.C.£1251 et seq.); the list of toxic pollutants designated by Congress or the EPA pursuant to section 307 of that act; and the list of hazardous substances adopted by the federal Environmental Protection Agency pursuant to section 101 of the "Comprehensive Environmental Response, Compensation and Liability Act of 1980," Pub.L. 96-510 (42 U.S.C.£9601 et seq.); provided, however, that sewage [and], sewage sludge, and municipal solid waste shall not be considered as hazardous substances for the purposes of this act;

    l. "Major facility" includes, but is not limited to, any refinery, storage or transfer terminal, pipeline, deep-water port, drilling platform or any appurtenance related to any of the preceding that is used or is capable of being used to refine, produce, store, handle, transfer, process or transport hazardous substances. A vessel shall be considered a major facility only when hazardous substances are transferred between vessels.

    A facility shall not be considered a major facility for the purpose of this act unless it has total combined aboveground or buried storage capacity of:

    (1) 20,000 gallons or more for hazardous substances which are other than petroleum or petroleum products, or

    (2) 200,000 gallons or more for hazardous substances of all kinds.

    For the purposes of this definition, "storage capacity" shall mean only that total combined capacity which is dedicated to, used for or intended to be used for storage of hazardous substances of all kinds. Where appropriate to the nature of the facility, storage capacity may be determined by the intended or actual use of open land or unenclosed space as well as by the capacities of tanks or other enclosed storage spaces;

    m. "Natural resources" means all land, fish, shellfish, wildlife, biota, air, waters and other such resources owned, managed, held in trust or otherwise controlled by the State;

    n. "Owner" or "operator" means, with respect to a vessel, any person owning, operating or chartering by demise such vessel; with respect to any major facility, any person owning such facility, or operating it by lease, contract or other form of agreement; with respect to abandoned or derelict major facilities, the person who owned or operated such facility immediately prior to such abandonment, or the owner at the time of discharge;

    o. "Person" means public or private corporations, companies, associations, societies, firms, partnerships, joint stock companies, individuals, the United States, the State of New Jersey and any of its political subdivisions or agents;

    p. "Petroleum" or "petroleum products" means oil or petroleum of any kind and in any form, including, but not limited to, oil, petroleum, gasoline, kerosene, fuel oil, oil sludge, oil refuse, oil mixed with other wastes, crude oils, and substances or additives to be utilized in the refining or blending of crude petroleum or petroleum stock in this State; however, any compound designated by specific chemical name on the list of hazardous substances adopted by the department pursuant to subsection 3 k. shall not be considered petroleum or a petroleum product for the purposes of this act, unless such compound is to be utilized in the refining or blending of crude petroleum or petroleum stock in this State;

    q. "Taxpayer" means the owner or operator of a major facility subject to the tax provisions of this act;

    r. "Tax period" means every calendar month on the basis of which the taxpayer is required to report under this act;

    s. "Transfer" means onloading or offloading between major facilities and vessels, or vessels and major facilities, and from vessel to vessel or major facility to major facility, except for fueling or refueling operations and except that with regard to the movement of hazardous substances other than petroleum, it shall also include any onloading of or offloading from a major facility;

    t. "Vessel" means every description of watercraft or other contrivance that is practically capable of being used as a means of commercial transportation of hazardous substances upon the water, whether or not self-propelled;

    u. "Waters" means the ocean and its estuaries to the seaward limit of the State's jurisdiction, all springs, streams and bodies of surface or groundwater, whether natural or artificial, within the boundaries of this State;

    v. "Act of God" means an act exclusively occasioned by an unanticipated, grave natural disaster without the interference of any human agency[.];

    w. "Household waste" means any waste material, including garbage, trash and sanitary waste from septic tanks, derived from households, including single and multiple residences and hotels and motels;

    x. "Municipal solid waste" means solid waste generated by households and encompasses "household waste" and solid waste from commercial, institutional and industrial sources where: (1) none of the hazardous substances that may be contained in the waste are derived from a commercial, institutional or industrial process or activity, and (2) the amount of toxicity of the hazardous substances contained in the waste does not exceed that which would normally be found in "household waste."

(cf: P.L.1986, c.143, s.1)

    2. Section 23 of P.L.1976, c.141 (C.58:10-23.11v) is amended to read as follows:

    23. Nothing in this act shall be deemed to preclude the pursuit of any other civil or injunctive remedy by any person. The remedies provided in this act are in addition to those provided by existing statutory or common law, but no person who receives compensation for damages or cleanup costs pursuant to any other State or Federal law shall be permitted to receive compensation for the same damages or cleanup costs under this act. Any provisions of the "New Jersey Tort Claims Act," P.L.1972, c.45 (C.59:1-1 et seq.) to the contrary notwithstanding, for the purposes of this act, no person, except the State of New Jersey, may sue or seek contribution from any political subdivision of the State.

(cf: P.L.1976, c.141, s.23)

    3. This act shall take effect immediately.

STATEMENT

    This bill would exempt municipal solid waste from the definition of hazardous substance in the "Spill Compensation and Control Act." This would eliminate liability for disposing municipal solid waste at a "Spillfund" site. Also, this bill would allow only the State to sue a municipality or seek contributions therefrom pursuant to "Spillfund." No other person could take such actions against a municipality that disposed of hazardous substances at a "Spillfund" site.

Exempts municipal solid waste from "Spillfund" liability and limits actions taken against municipalities.