52
Environmental and Health
possible, be conducted in accordance with the NCP for removal of oil
and hazardous substances.
Like CERCLA's Superfund, the Spill Act created the New Jersey
Spill Compensation Fund (the Fund) to support cleanup and removal
costs incurred by DEPE and third parties, and to pay direct and indirect
damages to innocent persons who sustained losses due to hazardous
substance discharges. The Fund derives its money from a state tax on
barrels of hazardous substances transferred, and by costs and damages
recovered from dischargers. Like EPA's authority under CERCLA, the
administrator of the Fund may settle disputes with responsible parties
over monies disbursed by the Fund. The Spill Act directs the
administrator to promote and arrange for settlements between claimants
and responsible parties--where identifiable--to avoid recourse against the
Fund. If responsible parties cannot be identified, the administrator is
directed to seek settlement of claims against the Fund.
As under CERCLA, any person who has discharged a hazardous
substance or is in any way responsible
for any hazardous substance is
held strictly liable, jointly and severally, without regard to fault, for all
cleanup and removal costs, no matter who incurred them. In contrast,
CERCLA does not explicitly set forth the standard of liability to be
imposed. Strict liability under the Spill Act and CERCLA is applied
retroactively to discharges that occurred before the enactment of the Spill
Act.
Under the Spill Act, liability for cleanup and removal costs can reach up
to $50 million for each major facility and $150 per gross ton for each
vessel. These limitations do not apply in cases of gross negligence,
willful misconduct, or gross or willful violations of safety, construction, or
operating standards.
The Spill Act provides for more extreme penalties
than CERCLA
does for certain types of violations. Also the Spill Act imposes "puni-
tive" measures for severe discharges to the land and/or waters of the
state: "[A]ny person whose intentional or unintentional act or omission
proximately results in an unauthorized releasing, spilling, pumping,
pouring, emitting, emptying, or dumping of 100,000 gallons or more of
a hazardous substance, or combination of hazardous substances, into the
waters or onto the lands of the State, or entering the lands or waters of
the State from a discharge occurring outside the jurisdiction of the State,
is liable to a civil administrative penalty or civil penalty of not more than
$10,000,000 ... In assessing a penalty pursuant to this section, [DEPE]
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