It is difficult for a defendant to avoid a claim by invoking the doctrine of waiver, which requires proof of a clear, unequivocal act showing that the plaintiff deliberately intended to relinquish a known legal right. It is doubly difficult when the plaintiff is the State of New Jersey, against which the application of the doctrine is, in the words of a leading Supreme Court case, to be “most strictly limited.” But thanks to not just one, but two documents clearly showing such an intent -- including one from the deputy attorney general on the case -- a federal district judge recently held that the State had waived its right to seek natural resource damages at a site in Franklin Township.
It Never Hurts to Ask
In New Jersey Department of Environmental Protection v. FMC Corporation, Civ. No. 01-0476 (D.N.J. Sept. 29,. 2010), District Judge Dennis M. Cavanaugh granted summary judgment in favor of FMC Corporation on a claim for natural resource damages (NRDs) asserted by the New Jersey Department of Environmental Protection (NJDEP) and the Administrator of the State’s Spill Compensation Fund. The site in question has been the subject of investigations, cleanup, lawsuits, and settlement negotiations going back to the 1980s. During one set of those settlement negotiations, FMC, which had already spent more than $6 million in cleanup costs, contacted the Attorney General’s office in an attempt to determine the full extent of its potential exposure at the site. The news from the State’s lawyers was good: according to a memorandum from the assessment coordinator at NJDEP’s Office of Natural Resource Restoration, NJDEP would not assess injuries to natural resources at the site because groundwater contamination did not extend beyond the site’s boundaries, and NJDEP policy then in effect was to exclude such groundwater contamination from NRD assessments.
As settlement negotiations continued, FMC in 2003 sought more information from the Attorney General’s office, including a copy of the NJDEP memorandum. In reply, the deputy attorney general provided the memorandum, which she described as “explaining why no natural resource damages are being assessed at this site. In the meantime, a new administration had taken office at the beginning of 2003. Under the new McGreevey administration, NJDEP policy changed, such that on-site groundwater contamination was no longer excluded from NRD assessments, at least in the context of settlement negotiations. That new policy was later memorialized in a September 2003 policy directive.
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