January, 2011, New Jersey Tech News - Generally speaking, the New Jersey "Spill Act" (N.J.S.A. 58:10-23.11), et. seq., provides a "safe harbor" provision for lenders or holders of security interests. Spill Act liability will not be imposed on lenders where "releases" or "discharges" of hazardous substances occur on the property serving as collateral where the borrower is still in possession and the lender is not an "active participant in management." That begs the question as to when lenders become "actively participating" in management. The statute and cases interpreting this provision focus on the level of decision making control the lender exercises and to what degree the lender is actually managing the property.
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