CHAPTER 235
An Act concerning the upgrade, remediation, and closure of certain underground storage tanks, supplementing Title 58 of the Revised Statutes, repealing sections 17 and 18 of P.L.1986, c.102, and making an appropriation.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
C.58:10A-37.1 Short title.
1. This act shall be known and may be cited as the "Underground Storage Tank Finance Act."
C.58:10A-37.2 Definitions relative to upgrade, remediation, closure of underground storage tanks.
2. As used in this act:
"Applicant" means a person who files an application for financial assistance from the Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund for payment of eligible project costs of a remediation due to a discharge of petroleum from a petroleum underground storage tank and for payment of eligible project costs of an upgrade or closure of a regulated tank;
"Authority" means the New Jersey Economic Development Authority established pursuant to P.L.1974, c.80 (C.34:1B-1 et seq.);
"Closure" means the proper closure or removal of a petroleum underground storage tank necessary to meet all regulatory requirements of federal, State, or local law;
"Commissioner" means the Commissioner of Environmental Protection;
"Department" means the Department of Environmental Protection;
"Discharge" means the intentional or unintentional release by any means of petroleum from a petroleum underground storage tank into the environment;
"Eligible owner or operator" means(1)any owner or operator other than the owner or operator of a petroleum underground storage tank storing heating oil for onsite consumption in a residential building who owns or operates less than 10 petroleum underground storage tanks in New Jersey, who has a net worth of less than $2,000,000 and who demonstrates to the satisfaction of the authority, the inability to qualify for and obtain a commercial loan for all or part of the eligible project costs, (2) the owner or operator of a petroleum underground storage tank storing heating oil for onsite consumption in a residential building, or (3) a public entity who owns or operates a petroleum underground storage tank in New Jersey;
"Eligible project costs" means the reasonable costs for equipment, work or services required to effectuate a remediation, an upgrade, or a closure which equipment, work or services are eligible for payment from the Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund. In the case of an upgrade or closure of a regulated tank, eligible project costs shall be limited to the cost of the minimal effective system necessary to meet all the regulatory requirements of federal and State law. The limitation of eligible project costs to the minimal effective system shall not be construed to deem ineligible those project costs expended to replace a regulated tank rather than to improve the regulated tank. An owner or operator may perform an upgrade or a closure beyond the minimal effective system in which case the eligible project costs that may be awarded from the fund as financial assistance shall be that amount that would represent the cost of a minimal effective system. In the case of a remediation, eligible project costs shall not include the cost to remediate a site to meet residential soil remediation standards if the local zoning ordinances adopted pursuant to the "Municipal Land Use Law," P.L.1975, c.291 (C.40:55D-1 et seq.) does not allow for residential use. Eligible project costs shall include the cost of a preliminary assessment and site investigation, even if performed prior to the award of financial assistance from the fund if the preliminary assessment and site investigation were performed after the effective date of P.L.1997, c.235. Eligible project costs shall not include the costs of any remediation performed at a site where the petroleum underground storage tank was removed prior to December 1, 1996;
"Facility" means one or more operational or nonoperational petroleum underground storage tanks under single ownership at a common site;
"Financial assistance" means a grant or loan or a combination of both that may be awarded by the authority from the fund to an eligible owner or operator as provided in section 5 of P.L.1997, c.235 (C.58:10A-37.5);
"Operator" means any person in control of, or having responsibility for, the daily operation of a facility;
"Owner" means any person who owns a facility;
"Person" means any individual, partnership, corporation, society, association, consortium, joint venture, commercial entity, or public entity, but does not include the State or any of its departments, agencies or authorities;
"Petroleum" means all hydrocarbons which are liquid at one atmosphere pressure (760 millimeters or 29.92 inches Hg) and temperatures between -20̊F and 120̊F (-29̊C and 49̊C), and all hydrocarbons which are discharged in a liquid state at or nearly at atmospheric pressure at temperatures in excess of 120̊F (49̊C) including, but not limited to, gasoline, kerosene, fuel oil, oil sludge, oil refuse, oil mixed with other wastes, crude oil, and purified hydrocarbons that have been refined, re-refined, or otherwise processed for the purpose of being burned as a fuel to produce heat or usable energy or which is suitable for use as a motor fuel or lubricant in the operation or maintenance of an engine;
"Petroleum Underground Storage Tank Remediation, Upgrade and Closure Fund" or "fund" means the fund established pursuant to section 3 of P.L.1997, c.235 (C.58:10A-37.3);
"Petroleum underground storage tank" means a tank of any size, including appurtenant pipes, lines, fixtures, and other related equipment, that normally and primarily stores petroleum, the volume of which, including the volume of the appurtenant pipes, lines, fixtures and other related equipment, is 10% or more below the ground. "Petroleum underground storage tank" does not include:
(1) Septic tanks installed or regulated pursuant to regulations adopted by the department pursuant to "The Realty Improvement Sewerage and Facilities Act (1954)," P.L.1954, c.199 (C.58:11-23 et seq.) or the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.);
(2) Pipelines, including gathering lines, regulated under 49 U.S.C. s.60101 et seq., or intrastate pipelines regulated under State law;
(3) Surface impoundments, pits, ponds, or lagoons, operated in or regulated pursuant to regulations adopted by the department pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.);
(4) Storm water or wastewater collection systems operated or regulated pursuant to regulations adopted by the department pursuant to the "Water Pollution Control Act";
(5) Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations;
(6) Tanks situated in an underground area, including, but not limited to, basements, cellars, mines, drift shafts, or tunnels, if the storage tank is situated upon or above the surface of the floor, or storage tanks located below the surface of the ground which are equipped with secondary containment and are uncovered so as to allow visual inspection of the exterior of the tank; and
(7) Any pipes, lines, fixtures, or other equipment connected to any tank exempted from the provisions of this definition pursuant to paragraphs (1) through (6) above;
"Public entity" means any county, municipality, or public school district, but shall not include any authority created by those entities;
"Regulated tank" means a petroleum underground storage tank that is required to be upgraded pursuant to P.L.1986, c.102 (C.58:10A-21 et seq.) or 42 U.S.C. s.6991 et seq.;
"Remediation" means all necessary actions to investigate and clean up any known, suspected, or threatened discharge of petroleum, including, as necessary, the preliminary assessment, site investigation, remedial investigation, and remedial action, as those terms are defined in section 23 of P.L.1993, c.139 (C.58:10B-1);
"Upgrade" means the replacement of a regulated tank, the installation of secondary containment, monitoring systems, release detection systems, corrosion protection, spill prevention, or overfill prevention therefor, or any other necessary improvement to the regulated tank in order to meet the standards for regulated tanks adopted pursuant to section 5 of P.L.1986, c.102 (C.58:10A-25) and 42 U.S.C. s.6991 et seq.
C.58:10A-37.3 Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund, establishment.
3. a. The Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund is established in the authority as a special, revolving fund. The fund shall be administered by the authority and shall be credited with:
(1) such monies as are appropriated by the Legislature;
(2) sums received as repayment of principal and interest on outstanding loans made from the State Underground Storage Tank Improvement Fund established pursuant to P.L.1986, c.102 (C.58:10A-21 et seq.);
(3) such monies as are appropriated pursuant to section 21 of P.L.1997, c.235 (C.58:10A-37.21);
(4) all non-refundable application fees collected pursuant to section 6 of P.L.1997, c.235 (C.58:10A-37.6);
(5) sums received as repayment of principal and interest on outstanding loans made from the fund;
(6) any monies recovered by the authority pursuant to sections 14 and 15 of P.L.1997, c.235 (C.58:10A-37.14 and C.58:10A-37.15);
(7) any return on investment of monies deposited in the fund;
(8) any monies recovered through liens pursuant to section 10 or 16 of P.L.1997, c.235 (C.58:10A-37.10 or C.58:10A-37.16); and
(9) payments of the annual surcharge imposed pursuant to section 18 of P.L.1997, c.235 (C.58:10A-37.18).
b. Monies in the fund shall be used by the authority solely for providing financial assistance pursuant to section 4 of P.L.1997, c.235 (C.58:10A-37.4) except that the authority may use any return on investment of monies deposited in the fund,application fees collected pursuant to section 6 of P.L.1997, c.235 (C.58:10A-37.6), monies recovered by the authority pursuant to sections 14 and 15 of P.L.1997, c.235 (C.58:10A-37.14 and C.58:10A-37.15), and payments of the annual surcharge imposed pursuant to section 18 of P.L.1997, c.235 (C.58:10A-37.18) for actual costs incurred in administering the fund, and for costs of any action to recover monies owing to the fund.
C.58:10A-37.4 Allocation of fund; priorities.
4. a. Monies in the fund shall be allocated and used to provide financial assistance only to (1) eligible owners or operators of regulated tanks in this State in order to finance the eligible project costs of the upgrade or closure of those regulated tanks as may be required pursuant to 42 U.S.C. s.6991 et seq. or P.L.1986, c.102 (C.58:10A-21 et seq.); and (2) eligible owners and operators of petroleum underground storage tanks in this State in order to finance the eligible project costs of remediations that are necessary due to the discharge of petroleum from one or more of those petroleum underground storage tanks. Priority for the issuance of financial assistance from the fund, and the terms and conditions of that financial assistance, shall be based upon the criteria set forth in this section.
b. Upon a determination that an application for financial assistance meets all established criteria for the award of financial assistance from the fund, the authority shall approve the application. Prior to December 22, 1998, the authority may approve only those applications given priority pursuant to paragraphs (1) and (2) of this subsection or pursuant to subsections c. and f.of this section, but the authority may receive, file, and deem complete any application for financial assistance it receives prior to that date.
Upon the authority's approval of an application for financial assistance, the authority shall award financial assistance to an applicant upon the availability of sufficient monies in the fund. When monies in the fund are not sufficient at any point in time to fully fund all applications for financial assistance that have been approved by the authority, the authority shall award financial assistance to approved applicants, notwithstanding the date of approval of the application, in the following order of priority:
(1) Upgrades of regulated tanks required to be upgraded pursuant to 42 U.S.C. s.6991 et seq., and including any necessary remediation at the site of the regulated tank, shall be given first priority;
(2) Closure of any regulated tank required to be upgraded pursuant to 42 U.S.C. s.6991 et seq., and including any necessary remediation at the site of the regulated tank, shall be given second priority;
(3) Upgrades of regulated tanks required to be upgraded pursuant to P.L.1986, c.102 (C.58:10A-21 et seq.), but not pursuant to 42 U.S.C. s.6991 et seq., and including any necessary remediation at the site of the regulated tank, shall be given third priority;
(4) Any necessary remediations at the sites of petroleum underground storage tanks other than those given priority pursuant to paragraph (1), (2), or (3)of this subsection shall be given fourth priority;
(5) Closure of any regulated tank required to be upgraded pursuant to P.L.1986, c.102 (C.58:10A-21 et seq.), but not pursuant to 42 U.S.C. s.6991 et seq.,shall be given last priority.
c. Notwithstanding the priority for the award of financial assistance set forth in subsection b. of this section, whenever there has been a discharge, and the discharge poses an imminent and significant threat to a drinking water source, to human health, or to a sensitive or significant ecological area, an approved application for the award of financial assistance for the remediation and upgrade or closure, if necessary, shall be given priority over all other applications for financial assistance.
d. The priority ranking of applicants within any priority category enumerated in paragraphs (1), (2), (3), (4), and (5) of subsection b. and in subsection c. of this section shall be based upon the date an application for financial assistance is filed with the authority as determined pursuant to section 6 of P.L.1997, c.235 (C.58:10A-37.6).
e. Whenever a facility consists of petroleum underground storage tanks from more than one priority category as enumerated in paragraphs (1) through (5)of subsection b. of this section, and subsection c. of this section, all the petroleum underground storage tanks at that facility shall be accorded the priority that would be accorded the highest priority petroleum underground storage tank at that facility.
f. Notwithstanding the priority rankings established in this section, one-tenth of the amount annually appropriated to the Petroleum Underground Storage Tank Remediation, Upgrade and Closure Fund shall be used to provide financial assistance to owners or operators of petroleum underground storage tanks used to store heating oil for onsite consumption in a residential building, in order to finance the eligible project costs of remediations that are necessary due to the discharge of heating oil from those petroleum underground storage tanks. The authority shall provide financial assistance pursuant to this subsection notwithstanding the owner or operator’s ability to obtain commercial loans for all or part of the financing. The priority ranking of applicants for these funds shall be based upon the date an application for financial assistance is filed with the authority as determined pursuant to section 6 of P.L.1997, c.235 (C.58:10A-37.6). If the authority does not receive qualified applications for financial assistance from owners and operators of petroleum underground storage tanks used to store heating oil for onsite consumption that meet the criteria set forth in this act and in any rules or regulations issued pursuant thereto, sufficient to enable the award of financial assistance an amount equal to one- tenth of the amount annually appropriated to the fund in any one year as required pursuant to this subsection, the authority may award that financial assistance in the order of priority as provided in this section. In addition to the monies dedicated pursuant to this subsection, the authority may award financial assistance to an owner or operator of a petroleum underground storage tank used to store heating for onsite consumption when the criteria enumerated in subsection c. of this section are met.
C.58:10A-37.5 Awarding of financial assistance.
5. a. The authority may award financial assistance from the fund to an eligible owner or operator in the form of a loan or a conditional hardship grant as provided in this section. An award of financial assistance, either as a loan or a grant, or a combination of both, may, upon application therefor, be for 100% of the eligible project costs. However, a loan that any applicant may receive from the fund for an upgrade, remediation, or closure, or any combination thereof, for any one facility, may not exceed $1,000,000 and a grant that any applicant may receive from the fund for any one facility, may not exceed $250,000. The total amount of financial assistance awarded as grants in any one year may not exceed 10% of the total amount of financial assistance awarded in that year.
b. A public entity applying for financial assistance from the fund may only be awarded financial assistance in the form of an interest free loan.
c. An applicant, other than a public entity, may apply for and receive a conditional hardship grant as provided in paragraph (1) of this subsection, or a loan for an upgrade, closure, or remediation as provided in paragraph (2) of this subsection. Financial assistance awarded an applicant pursuant to this subsection may consist entirely of a conditional hardship grant, a loan for an upgrade, or loan for a closure, or a loan for a remediation, or any combination thereof, except that the total amount of the award of financial assistance shall be subject to the per facility dollar limitation enumerated in subsection a. of this section. Notwithstanding any other provision of this subsection to the contrary, no tax exempt, nonprofit organization, corporation, or association shall be awarded a conditional hardship grant pursuant to paragraph (1) of this subsection.
(1) A conditional hardship grant for eligible project costs of an upgrade, closure or remediation shall be awarded by the authority based upon a finding of eligibility and financial hardship and upon a finding that the applicant meets the criteria set forth in this act.
In order to be eligible for a conditional hardship grant, the applicant shall have owned or operated the subject petroleum underground storage tank as of December 1, 1996 and continually thereafter or shall have inherited the property from a person who owned the petroleum underground storage tank as of that date. No applicant shall be eligible for a conditional hardship grant if the applicant has a taxable income of more than $100,000 or a net worth, exclusive of the applicant's primary residence, of over $100,000.
A finding of financial hardship by the authority shall be based upon a determination that an applicant cannot reasonably be expected to repay all or a portion of the eligible project costs if the financial assistance were to be awarded as a loan. The amount of an award of a conditional hardship grant shall be the amount of that portion of the eligible project costs the authority determines the applicant cannot reasonably be expected to repay.
In making a finding of financial hardship for an application for the upgrade, closure, or remediation of a petroleum underground storage tank, where the petroleum underground storage tank is a part of the business property of the owner, the authority shall base its finding upon the cash flow of the applicant's business, whether or not any part of the applicant's business is related to the ownership or operation of that petroleum underground storage tank. In making a finding of financial hardship for an application for the upgrade or remediation of a petroleum underground storage tank, where the petroleum underground storage tank is not a part of the business property of the owner, the authority shall base its finding upon the applicant's taxable income in the year prior to the date of the application being submitted.
If the authority awards a conditional hardship grant in combination with a loan pursuant to this subsection, the authority shall release to the applicant the loan monies prior to the release of the conditional hardship grant monies.
Conditional hardship grants awarded to an applicant shall be subject to the lien provisions enumerated in section 16 of P.L.1997, c.235 (C.58:10A-37.16).
(2) A loan to an eligible owner or operator for the eligible project costs of an upgrade, closure, or remediation shall be awarded by the authority only upon a finding that the applicant other than a public entity is able to repay the amount of the loan.
In making a finding of an applicant's ability to repay a loan for the upgrade, closure, and remediation of a regulated tank, or for the remediation of a discharge from a petroleum underground storage tank, the authority shall base its finding, as applicable, upon the cash flow of the applicant's business, the applicant's taxable income and the applicant's personal and business assets, except that the authority may not consider the applicant's primary residence as collateral, except that the authority may consider the applicant's primary residence as collateral with the permission of the applicant or where the subject petroleum underground storage tank or regulated tank is located at the primary residence.
d. The authority shall, where applicable, require an applicant applying for financial assistance from the fund to submit to the authority the financial statements of the applicant's business for three years prior to the date of the application, the most recent interim financial statement for the year of the application, the applicant's federal income tax returns, or other relevant documentation.
e. Nothing in this section is intended to alter the priority or criteria for awarding financial assistance established pursuant to section 4 of P.L.1997, c.235 (C.58:10A-37.4).
f. An eligible owner or operator may only be awarded that amount of financial assistance issued as a loan for which the applicant demonstrates he could not qualify for and obtain as a commercial loan. The provisions of this subsection shall not apply to an owner or operator or petroleum underground storage tank used to store heating oil for onsite consumption in a residential building.
C.58:10A-37.6 Application for financial assistance; fee.
6. An eligible owner or operator seeking financial assistance from the fund shall file an application on a form to be developed by the authority. The application form shall be submitted with the application fee. The application fee per facility for residential petroleum underground storage tanks shall be $250. The authority may establish the application fee per facility for nonresidential petroleum underground storage tanks.
The authority shall adopt rules and regulations listing the filing requirements for a complete application for financial assistance. If a financial assistance application is determined to be incomplete by the authority, an applicant shall have 30 days from the date of receipt of written notification of incompleteness to file such additional information as may be required by the authority for a completed application. If an applicant fails to file the additional information within the 30 days, the filing date for that application shall be the date that such additional information is received by the authority. If the additional information is filed within the 30 days and is satisfactory to the authority, the filing date for that application shall be the initial date of application with the authority. Notwithstanding the above, if a completed application has been submitted and the applicant fails to submit the filing fee, then the filing date for the application shall not be established until the date on which the authority receives the application fee.
An applicant shall have 120 days from receipt of notice of approval of a financial assistance award to submit to the authority an executed contract for the upgrade, closure, or remediation, or all three, as the case may be, that is consistent with the terms and conditions of the financial assistance approval. Failure to submit an executed contract within the allotted time, without good cause, may result in an alteration of an applicant's priority ranking.
C.58:10A-37.7 Conditions for awarding financial assistance.
7. a. The authority shall award financial assistance to an owner or operator of a facility only if the facility is properly registered with the department pursuant to section 3 of P.L.1986, c.102 (C.58:10A-23), where applicable, and if all fees or penalties due and payable on the facility to the department pursuant to P.L.1986, c.102 have either been paid or the nature or the amount of the fee or penalty is being contested in accordance with law.
b. The authority may deny an application for financial assistance, and any award of financial assistance may be recoverable by the authority, upon a finding that:
(1) in the case of financial assistance awarded for a remediation, the discharge was proximately caused by the applicant's knowing conduct;
(2) in the case of financial assistance awarded for a remediation, the discharge was proximately caused or exacerbated by knowing conduct by the applicant with regard to any lawful requirement applicable to petroleum underground storage tanks intended to prevent, or to facilitate the early detection of, the discharge;
(3) the applicant failed to commence or complete a remediation, closure, or an upgrade for which an award of financial assistance was made within the time required by the department in accordance with the applicable rules and regulations,within the time prescribed in an administrative order, an administrative consent agreement, a memorandum of agreement, or a court order; or
(4) the applicant provided false information or withheld information on a loan or grant application, or other relevant information required to be submitted to the authority, on any matter that would otherwise render the applicant ineligible for financial assistance from the fund, that would alter the priority of the applicant to receive financial assistance from the fund, that resulted in the applicant receiving a larger grant or loan award than the applicant would otherwise be eligible, or that resulted in payments from the fund in excess of the actual eligible project costs incurred by the applicant or the amount to which the applicant is legally eligible.
Nothing in this subsection shall be construed to require the authority to undertake an investigation or make any findings concerning the conduct described in this subsection.
c. An application for financial assistance from the fund for an upgrade or closure of a regulated tank shall include all regulated tanks at the facility for which the applicant is seeking financial assistance. Once financial assistance for an upgrade, closure or a remediation is awarded for a facility, no additional award of financial assistance may be made for that facility. However, if an applicant discovers while performing upgrade or closure activities that a remediation is necessary at the site of a facility, and if financial assistance was previously awarded for that site only for an upgrade or closure of a regulated tank, the applicant may amend his application and apply for financial assistance for the required remediation subject to the limitations enumerated in section 5 of this act.An application for financial assistance for an upgrade or closure of a regulated tank shall be conditioned upon the applicant agreeing to perform, at the time of the upgrade or closure, any remediation necessary as a result of a discharge from the regulated tank and commencement of the remediation within the time prescribed and in accordance with the rules and regulations of the department.
d. No financial assistance shall be awarded for any regulated tank to meet the upgrade or closure requirements pursuant to 42 U.S.C. s.6991 et seq. or P.L.1986, c.102 (C.58:10A-21 et seq.), or for the remediation of a discharge from any such regulated tank except as provided in subsection c. of this section,unless the application is filed with the authority prior to January 1, 1999 and the application is complete and the application fee is received by March 1, 1999.
e. The date of occurrence of a discharge shall not affect eligibility for financial assistance from the fund. Except for a preliminary assessment or a site investigation performed after the effective date of P.L.1997, c.235 (C.58:10A-37.1 et seq.), and except as provided in subsection g. of this section, no award of financial assistance shall be made from the fund for the otherwise eligible project costs of a remediation, closure, or an upgrade, or parts thereof, completed prior to an award of financial assistance from the fund.
f. No financial assistance may be awarded from the fund for the remediation of a discharge from a petroleum underground storage tank if financial assistance from the Hazardous Discharge Site Remediation Fund established pursuant to section 26 of P.L.1993, c.139 (C.58:10B-4) has previously been made for a remediation at that site as a result of a discharge from that petroleum underground storage tank. No financial assistance may be awarded from the fund for the remediation of a discharge from a petroleum underground storage tank if the discharge began subsequent to the completion of an upgrade of that petroleum underground storage tank, which upgrade was intended to meet all applicable upgrade regulations of the department, no matter when the upgrade was performed.
g. Notwithstanding any provision of P.L.1997, c.235 (C.58:10A-37.1 et seq.), where an eligible owner or operator has filed an application for financial assistance from the fund, and there are either insufficient monies in the fund or the authority has not yet acted upon the application or awarded the financial assistance, the eligible owner or operator may expend its own funds for the upgrade, closure, or remediation, and upon approval of the application, the authority shall award the financial assistance as a reimbursement of the monies expended for eligible project costs.
C.58:10A-37.8 Rules, regulations relative to application procedure.
8. a. The authority shall adopt, pursuant to the"Administrative Procedure Act,"P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations to:
(1) require an applicant:
(a) to submit documentation or other information on the nature and scope of the work to be performed, cost estimates thereon, and, as available, proofs of the actual costs of all work performed;
(b) to demonstrate, where applicable, an ability to repay the amount of any loan and to provide adequate collateral to secure the amount of a loan;
(c) to submit a certification that the applicant has not engaged in any of the conduct described in subsection b. of section 7 of P.L.1997, c.235 (C.58:10A-37.7);
(d) to submit a certification that any upgrade, closure, and remediation being undertaken will be or was completed or was in conformance with rules and regulations of the department;
(e) require the loan or grant recipient to provide access at reasonable times to the subject property to determine compliance with the terms and conditions of the loan or grant; and
(f) to submit documentation and a certification, as applicable,that the applicant was unable to qualify for and obtain a commercial loan for all or part of the eligible project costs;
(2) require any financial assistance awarded to be used only for the purposes for which the award is made and that the applicant is adhering to all of the terms and conditions of the loan agreement; and
(3) adopt such other requirements as may be deemed necessary to carry out its responsibilities pursuant to this act.
b. Information submitted as part of an application that results in the award of a grant from the fund shall be a public record subject to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.). Information submitted as part of an application that results solely in the award of a loan from the fund shall not be a public record subject to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.).
c. The authority may file a lien on real property owned by the applicant in addition to the property at which the subject facility is located to secure a loan, except that such a filing shall be subject to the restrictions on the use of the applicant's primary residence as collateral, as provided in section 5 of P.L.1997, c.235 (C.58:10A-37.5) and paragraph (3) of subsection d. of this section. Liens filed pursuant to this subsection shall not affect any valid lien, right or interest in the real property filed in accordance with established procedure prior to the filing of this notice of lien.
d. In establishing requirements for applications for financial assistance, the authority:
(1) may not impose conditions that interfere with the everyday normal operations of a financial assistance recipient's business activities, except to the extent necessary to ensure the recipient’s ability to repay the loan and to preserve the value of any loan collateral;
(2) shall strive to minimize the complexity and costs to applicants or recipients of compliance with such requirements;
(3) may not require as collateral for any loan, except with the applicant's consent, the primary residence of the applicant, except that this paragraph shall not apply to a loan issued from the fund for the eligible project costs for a petroleum underground storage tank at the site of the primary residence; and
(4) shall expeditiously process all applications in accordance with a schedule established by the authority for the review thereof and the taking of final action, which schedule shall reflect the complexity of an application.
C.58:10A-37.9 Enforcement action prohibited; exceptions.
9. a. The department and the Office of the Attorney General may not take any enforcement action pursuant to section 12 of P.L.1986, c.102 (C.58:10A-32) against the owner or operator of a regulated tank for failure to upgrade or close a regulated tank or for failure to maintain evidence of financial responsibility pursuant to section 5 of P.L.1986, c.102 (C.58:10A-25), if the owner or operator, (1) has submitted an application for financial assistance from the fund prior to the date upon which the upgrade or closure is required by law to be completed, (2) the authority has not yet acted on the application as of that date, (3) the owner or operator agrees to enter into a consent agreement or a memorandum of agreement with the department to comply with the upgrade, closure, remediation, and financial responsibility requirements, (4) the owner or operator complies with the provisions of the consent agreement or the memorandum of agreement, and (5) the owner or operator maintains an acceptable method of release detection for the regulated tanks that are the subject of the application for financial assistance as required pursuant to section 5 of P.L.1986, c.102 (C.58:10-25).
b. The provisions of subsection a. of this section shall not apply upon the denial of an application for financial assistance or in the case of a knowing discharge that may result in a serious threat to the public health or the environment. The department shall make an annual report to the Senate Environment Committee and the Assembly Agriculture and Waste Management Committee or their successors listing any enforcement actions taken against an owner or operator of a regulated tank who meets the requirements of subsection a. of this section. The report shall list the name of the violator, the specific statute or regulation alleged to have been violated, the status of the case at the time of the report, and the penalty imposed.
C.58:10A-37.10 Term of loans.
10. a. All loans awarded from the fund shall be for a term not to exceed ten years. Except as provided in subsection b. of section 5 of P.L.1997, c.235 (C.58:10A-37.5), all loans shall be at a rate between two percent and the prime rate at the time of approval, or at the time of loan closing if the prime rate is lower at that time. The authority shall determine the interest rate to be imposed based on the applicant’s ability to repay the loan.
b. Upon the sale of the facility for which the loan was made, the unpaid balance of the loan shall become immediately payable in full. Upon the sale of a facility for which a conditional hardship grant was made pursuant to section 5 of P.L.1997, c.235 (C.58:10A-37.5), that amount of the conditional hardship grant that must be repaid, as calculated pursuant to section 16 of P.L.1997, c.235 (C.58:10A-37.16), shall become immediately payable in full.
C.58:10A-37.11 Insurance coverage for costs of remediation.
11. Notwithstanding any other provision of P.L.1997, c.235 (C.58:10A-37.1 et seq.), if an owner or operator maintains environmental liability or other insurance coverage for the remediation of a discharge, the insurance coverage shall be the primary coverage for the costs of a remediation. Eligible owners and operators may apply for financial assistance from the fund for any excess thereof, including any deductible, up to the per facility monetary limits set forth in section 5 of P.L.1997, c.235 (C.58:10A-37.5). An eligible owner or operator shall file a notice of a claim with its insurance carrier prior to filing an application for financial assistance from the fund. The notice of claim shall list the fund as a beneficiary of the claim to the extent of an award of financial assistance is made from the fund. As a condition of receiving an award of financial assistance from the fund, the eligible owner or operator shall agree to diligently pursue the claim against its insurance carrier.
C.58:10A-37.12 Memorandum of agreement relative to powers, responsibilities.
12. The authority and the department may enter into a memorandum of agreement whereby any of the powers or responsibilities that the authority may exercise pursuant to P.L.1997, c.235 (C.58:10A-37.1 et seq.), may be exercised by the department. The authority may require an applicant for financial assistance to enter into an agreement with the department prior to an application being deemed complete, which agreement shall provide that any upgrade, closure, or remediation will be performed pursuant to rules and regulations of the department. Any agreement, review of documents, or other powers to be exercised by the department pursuant to this section must be completed by the department within 45 days of the application being submitted to the department. Pursuant to the memorandum of agreement, the authority and the department may provide that any of the monies in the fund that may be used for administrative expenses by the authority pursuant to section 3 of P.L.1997, c.235 (C.58:10A-37.3), may be used by the department in carrying out its responsibilities under this section.
C.58:10A-37.13 Joint application filing, review and approval procedure.
13. The authority shall establish a joint application filing, review and approval procedure whereby a person who is eligible for financial assistance from the fund, created pursuant to section 3 of P.L.1997, c.235 (C.58:10A-37.3) and who is eligible for financial assistance from the Hazardous Discharge Site Remediation Fund, created pursuant to section 26 of P.L.1993, c.139 (C.58:10B-4), may file one application for financial assistance from both funds and receive a joint response from the authority that approves or disapproves the application in whole or in part.
C.58:10A-37.14 Authority's right of subrogation, recovery.
14. a. Payment of any grant from the fund, or of a loan from the fund where the loan is in default and is uncollectible, for any costs relating to a remediation, shall be conditioned upon the authority being subrogated to all of the rights of an owner or operator against any insurance carrier, against any previous owner or operator of the facility where the previous owner or operator engaged in any conduct identified in paragraph (1) or (2) of subsection b. of section 7 of P.L.1997, c.235 (C.58:10A-37.7), and against any other person liable for the discharge pursuant to subsection c. of section 8 of P.L.1976, c.141 (C.58:10-23.11g), for the costs of the remediation necessitated by the discharge. In an action by the authority to enforce a right of subrogation, the authority shall be entitled to invoke all the rights and defenses available to the grant or loan recipient if the action had been brought by the grant or loan recipient against such other person. Nothing in this subsection shall be construed to affect or limit any right that an owner or operator of a petroleum underground storage tank may have under statutory or common law against any other person concerning a discharge of petroleum from that tank.
b. The authority may seek to recover any financial assistance or that part of an award of financial assistance that exceeds the eligible project costs or that was obtained as a result of conduct described in paragraph (4) of subsection b. of section 7 of P.L.1997, c.235 (C.58:10A-37.7). If the authority is the prevailing party in an action to recover financial assistance payments made from the fund, the authority shall be entitled to all investigative and legal costs incurred by the authority in bringing and prosecuting the action, as well as interest charges which shall accrue as of the date such payments were made from the fund, unless the court makes a finding of a lack of intent to defraud the fund. The rate of interest shall be the interest rate for judgments established pursuant to the Rules Governing the Courts of the State of New Jersey.
C.58:10A-37.15 Violations, penalties.
15. a. A person who purposely, knowingly, recklessly, or negligently provides false documents or false information to the authority or to the department, or withholds documents or information, in relation to an application for financial assistance from the fund or in relation to documents or information that may be required as a condition of receiving an award of financial assistance from the fund, shall be subject to a civil penalty not to exceed $50,000. Any penalty incurred under this subsection may be recovered with costs in a summary proceeding pursuant to "the penalty enforcement law," N.J.S.2A:58-1 et seq. in the Superior Court.
b. (1) The authority may commence a civil action in Superior Court to recover any financial assistance awarded to an applicant from the fund if financial assistance was obtained, in whole or in part, as the result of providing false documents or false information to the authority or to the department or by withholding documents or information from the authority or the department. The action to recover money awarded by the authority may be combined with any action to impose penalties provided for in subsection a. of this section.
(2) The authority may commence a civil action in Superior Court to recover any financial assistance awarded as a loan where the recipient of the loan has not made loan repayments in accordance with the loan agreement, where any condition or provision of the loan agreement has been violated by the loan recipient, or to enforce any lien filed pursuant to the issuance of financial assistance.
c. (1) A person who purposely or knowingly provides false documents or false information to the authority or to the department, or withholds documents or information, in relation to an application for financial assistance from the fund or in relation to documents or information that may be required as a condition of receiving an award of financial assistance from the fund, with the intent to alter the applicant's eligibility for financial assistance from the fund, alter the priority of the applicant's application to receive financial assistance from the fund, cause the applicant to receive a larger grant award than the applicant would otherwise be eligible for, or obtain financial assistance from the fund in excess of the eligible project costs, shall be guilty of a crime of the third degree.
(2) A person who recklessly provides false documents or false information to the authority or to the department, or withholds documents or information, in relation to an application for financial assistance from the fund or in relation to documents or information that may be required as a condition of receiving an award of financial assistance from the fund, which results in the alteration of the applicant's eligibility for financial assistance from the fund, the alteration of the priority of the applicant's application to receive financial assistance from the fund, which causes the applicant to receive a larger grant award than the applicant would otherwise be eligible for, or obtain financial assistance from the fund in excess of the eligible project costs, shall be guilty of a crime of the fourth degree.
C.58:10A-37.16 Liens for financial assistance.
16. a. In addition to any other financial assistance requirements imposed by the authority pursuant to P.L.1997, c.235 (C.58:10A-37.1 et seq.), any award of financial assistance from the fund shall constitute, in each instance, a debt of the applicant to the fund. The debt shall constitute a lien on the real property at which the subject facility is located. The lien shall be in the amount of the financial assistance awarded the applicant. The lien shall attach when a notice of lien, incorporating the name of the property owner,a description of the real property on which the subject facility is located and an identification of the amount of the financial assurance awarded, is duly filed with the county recording officer in the county in which the property is located.
Where financial assistance from the fund is awarded as a combination of a loan and a grant, separate liens for the loan and the grant shall be filed. No lien shall be placed on any real property of an applicant based on a conditional hardship grant awarded pursuant to paragraph (1) of subsection c. of section 5 of P.L.1997, c.235 (C.58:10A-37.5), for a remediation necessitated by a discharge from a petroleum underground storage tank used to store heating oil at the applicant's primary residence.
b. A lien that is filed on real property pursuant to a loan shall be removed upon repayment of the loan.
c. The lien that is filed on real property pursuant to a conditional hardship grant shall be removed upon repayment of the amount of the grant that is unsatisfied or upon the end of a 15- year period in which the site for which the financial assistance was awarded continued to be operated in substantially the same manner as it was operated at the time of the award of financial assistance. The period of operation need not run consecutively. Beginning with the 11th year of operating in substantially the same manner, 20% of the conditional hardship grant shall be deemed satisfied with an additional 20% to be satisfied each year until the entire amount of the conditional hardship grant is satisfied at the end of the 15-year period. The owner or operator of the facility claiming to have satisfied a conditional hardship grant due to the 15-year period of operation, shall submit a certification of this fact to the authority. Upon repayment of the unsatisfied grant award or upon submittal of this certification, unless the authority has made a finding that the certification is not correct, the authority shall remove the lien from the property.
Where real property for which a conditional hardship grant was awarded is not being operated in substantially the same manner, the 15-year period to satisfy the lien shall be tolled. If at any time prior to the satisfaction of the lien the property is developed or operated for a purpose that is not substantially the same as its operation at the time of the award of the conditional hardship grant, the grant recipient shall so certify to the authority upon the change in operation. Upon receipt of this certification, the authority shall determine, based upon the new operation of the property if the financial assistance shall continue as a conditional hardship grant or if it shall be converted into a loan. In making this determination, the authority shall base its decision on the financial hardship factors used in determining the original eligibility for the conditional hardship grant.
The authority may take whatever enforcement actions it deems necessary to verify the operation of any property for which a conditional hardship grant was made. The terms and conditions of any loan converted from a grant pursuant to this subsection shall be the same as those authorized pursuant to this act.
d. The provisions of this section do not apply to any real property of an applicant who is a public entity.
C.58:10A-37.17 Rules, regulations.
17. a. Within 180 days of the effective date of this act, the New Jersey Economic Development Authority shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations for the administration of the Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund and the issuance of financial assistance therefrom as necessary to implement this act.
b. Within 180 days of the effective date of this act, the Department of Environmental Protection shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations for the administration of the Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund and the issuance of financial assistance therefrom as necessary to implement this act.
c. Prior to the adoption of rules and regulations pursuant to this section, the authority and the department may, notwithstanding the provisions of the "Administrative Procedure Act," adopt procedures for the acceptance and review of financial assistance applications from the fund. No financial assistance may be awarded however, until the rules and regulations are adopted pursuant to this section.
C.58:10A-37.18 Imposition of annual surcharge.
18. There is imposed upon the owner or operator of a facility who is required to maintain evidence of financial responsibility pursuant to section 5 of P.L.1986, c.102 (C.58:10A-25) or pursuant to 42 U.S.C. s.6991 et seq., and any regulations adopted pursuant thereto, and who does not maintain that evidence of financial responsibility, an annual surcharge. The annual surcharge shall be $1,500 for facilities with one or two petroleum underground storage tanks, $3,500 for facilities with three to six petroleum underground storage tanks, and $6,000 for facilities with seven or more petroleum underground storage tanks. The owner or operator shall pay this surcharge to the authority for deposit into the Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund. The New Jersey Spill Compensation Fund shall not be considered as evidence of financial responsibility for the purposes of this section.
Nothing in this section shall be construed to negate the requirement of an owner or operator of a facility to maintain evidence of financial responsibility as may be required pursuant to section 5 of P.L.1986, c.102 (C.58:10A-25) or pursuant to 42 U.S.C. s.6991 et seq.
The New Jersey Economic Development Authority, in consultation with the Department of Environmental Protection shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations imposing the surcharge.
C.58:10A-37.19 Joint annual report.
19. a. The New Jersey Economic Development Authority and the Department of Environmental Protection shall present a joint annual report to the presiding officers of the two houses of the Legislature and to the chairmen and members of the Assembly Agriculture and Waste Management Committee and the Senate Environment Committee, or their successors, on the status of the financial assistance program, which shall include: a statement on receipts and expenditures for the Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund; the number of applications for financial assistance received and the actions taken on the applications; the amount of financial assistance awarded as loans or as grants for both public entities and other applicants; the identity and location of the facilities receiving the financial assistance; an assessment of the adequacy of current funding levels in meeting the statutory objectives of the fund; an accounting of expenses incurred by the authority in administering the fund; and such other information, including any legislative or administrative recommendations for program changes, as the authority and the department may deem appropriate or useful. The annual reports shall be made not later than March 31 of each year beginning one year following the effective date of this act. The first report shall also contain a needs survey, which shall estimate the scope and projected costs of all potentially eligible remediation applications for financial assistance from the fund.
C.58:10A-37.20 Construction of act.
20. Nothing in P.L.1997, c.235 (C.58:10A-37.1 et seq.) shall be construed to:
(1) impose any liability on the State or the authority for any claims made to, or approved from, the Petroleum Underground Storage Tank Remediation, and Closure Upgrade Fund, and the extent of the State's or authority's responsibility for the payment or reimbursement of an approved application shall be limited to the amount of otherwise unobligated monies available in the fund;
(2) impose any liability on the State or the authority for the quality of any work performed pursuant to a remediation, closure or an upgrade for which financial assistance is made; or
(3) alter any obligation of an owner or operator of a facility, who is eligible for financial assistance from the fund, to comply in a timely manner with all lawful requirements relating to the facility.
C.58:10A-37.21 Appropriation for Petroleum Underground Storage Tank Remediation, Upgrade and Closure Fund.
21. There is appropriated from the special account in the General Fund created pursuant to Article VIII, Section II, paragraph 6 of the New Jersey Constitution $9,900,000 to the New Jersey Economic Development Authority which shall be deposited into the Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund, established pursuant to section 3 of P.L.1997, c.235 (C.58:10A-37.3), for use for any of the purposes for which that fund has been established. Expenditures of monies in the fund shall be subject to the conditions set forth in Article VIII, Section II, paragraph 6 of the New Jersey Constitution and the provisions in P.L.1997, c.235 (C.58:10A-37.1 et seq.).
C.58:10A-37.22 Penalty for failure to register underground storage tank; exceptions.
22. Any person who has owned or operated an underground storage tank as defined pursuant to section 2 of P.L.1986, c.102 (C.58:10A-22) who has not registered that tank pursuant to the provisions of P.L.1986, c.102 (C.58:10A-21 et seq.), shall not be subject to a civil penalty for the failure to register that underground storage tank if the person, within one year of the effective date of this act, registers the tank pursuant to P.L.1986, c.102. The department may require that person to pay any registration fees that would have been paid had the underground storage tank been registered in accordance with law.
Repealer.
23. Sections 17 and 18 of P.L.1986, c.102 (C.58:10A-36 and C.58:10A-37) are repealed, except that in order to assure the uninterrupted funding of loans for regulated tank upgrades pending the adoption of rules and regulations pursuant to section 17 of P.L.1997, c.235 (C.58:10A-37.17), rules and regulations adopted pursuant to section 17 of P.L.1986, c.102 (C.58:10A-37) that are in effect on the effective date of P.L.1997, c.235 (C.58:10A-37.1 et seq.), shall continue in force until the adoption of rules and regulations by the authority pursuant to section 17 of P.L.1997, c.235 (C.58:10A-37.17). The repayment of any outstanding loans made from the State Underground Storage Tank Improvement Fund shall be made to the New Jersey Economic Development Authority for deposit into the Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund. Any monies in the State Underground Storage Tank Improvement Fund is transferred to the New Jersey Economic Development Authority for deposit into the Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund.
C.58:10A-37.23 Submission of evidence of financial responsibility.
24. Prior to July 1, 1997, or within six months of an underground storage tank being upgraded and the site remediated as required pursuant to P.L.1986, c.102 (C.58:10A-21 et seq.), whichever is later, the owner or operator of that underground storage tank shall submit to the department evidence of financial responsibility for taking corrective action and compensating third parties as is required pursuant to section 5 of P.L. 1986, c.102 (C.58:10A-25) or pursuant to 42 U.S.C. s.6991 et seq. After a regulated tank is upgraded, the New Jersey Spill Compensation Fund, created pursuant to the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.) shall no longer serve as the evidence of financial responsibility for the regulated tank.
25. There is appropriated from the General Fund to the New Jersey Economic Development Authority the sum of $50,000 for the adoption of rules and regulations for administering the Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund, established pursuant to section 3 of P.L.1997, c.235 (C.58:10A-37.3). The authority shall transfer such sums from this appropriation to the Department of Environmental Protection as the authority and the department deem necessary to allow the department to adopt rules and regulations as necessary pursuant to this act. Upon sufficient monies being deposited into the Petroleum Underground Storage Tank Remediation, Upgrade, and Closure Fund that may be used for these purposes, the authority shall reimburse the General Fund the amount of this appropriation.
26. This act shall take effect immediately.
Approved August 30, 1997.