56
Environmental and Health
Any expenditure made for cleanup and removal is a debt of the
discharger to the New Jersey Spill Compensation Fund:
The debt shall constitute a lien on all property
owned by the
discharger when a notice of lien, incorporating a description of
the property of the discharger subject to the cleanup and removal
and an identification of the amount of cleanup, removal and
related costs expended from the fund is duly filed with the clerk
of the Superior Court Upon entry by the clerk, the lien, to
the amount committed by the administrator for cleanup and
removal, shall attach to the revenues and all real and personal
property of the discharger, whether or not the discharger is
insolvent. N.J. Stat. Ann.
§ 58:10-23.llf(f).
The lien constitutes a priority lien--meaning it creates a lien with
priority over all past and future claims or liens filed--on the property
which is the subject of the cleanup and removal costs. A typical lien
may apply to all other property that the discharger owns:
The notice of lien ... which affects any property of a discharger
other than the property subject to the cleanup and removal, shall
have priority from the day of the filing of the notice of the lien
over all other claims and liens filed against the property, but
shall not affect any valid lien, right, or interest in the property
filed in accordance with established procedure prior to the filing
of a notice of lien ... N.J. Stat. Ann. § 58:10-23.11f(f).
The priority lien or super lien "does not come into existence and is
not recorded until expenditures are made out of the Spill Compensation
Fund. Therefore, the state cannot simply assert the lien on property in
anticipation of, or prior to, cleanup; it can only assert the lien once it has
spent money on cleanup efforts.
As originally enacted, the priority lien provision extended to all
assets of the responsible party. However, mass criticism of the statute's
scope forced later amendments. In
1985, the priority lien provision
became limited to "dirty assets"--those associated with un-authorized
discharges--although a typical lien is available for other assets.
With the advent of liabilities stemming from the so-called super lien
laws, it has become standard practice for purchasers to perform site
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