Tagged: Spill Act

More Than Parking Tickets: Appellate Division Rules that New Jersey Municipal Courts Can Assess Civil Penalties for Spill Act Violations

More Than Parking Tickets: Appellate Division Rules that New Jersey Municipal Courts Can Assess Civil Penalties for Spill Act Violations

Municipal courts are typically called on to rule on such matters as parking violations and speeding tickets. Some statutes, however, give them jurisdiction over a surprising variety of actions. In its published opinion in State of New Jersey Department of Environmental Protection v. Alsol Corporation, the Appellate Division held that one powerful environmental law, the Spill Compensation and Control Act (Spill Act), grants municipal courts jurisdiction to assess civil penalties for violations of the statute, even where the department has not already gone through an administrative process to assess such penalties. DEP’s complaint against Alsol arose from an October 2016 oil spill at a property it owns in Milltown. According to factual assertions made by the New Jersey Department of Environmental Protection (NJDEP), the spill was the result of a contractor’s faulty demolition of three electrical transformers. Oil from the transformers, later determined to contain polychlorinated biphenyls (PCBs), spilled onto the surface and into a storm drain. The oil allegedly reached Farrington Lake and may have reached Mill Pond and Lawrence Brook, which a Department of Environmental Protection (DEP) Fish and Wildlife Officer closed to fishing. The complaint, filed in Milltown Municipal Court, did not allege a violation of the...

New Jersey Appellate Division Clarifies Spill Fund Lien Law &  Procedure

New Jersey Appellate Division Clarifies Spill Fund Lien Law & Procedure

In an unpublished opinion captioned In Re Spill Fund Lien, DJ No. 129570-02; 954 Route 202, the Appellate Division affirmed the final agency decision of the Spill Compensation Fund (Fund) holding that the lien filed against the property and revenues to recover remediation costs that the Fund expended in cleanup was appropriate under the New Jersey Spill Act (Spill Act). The property owner, Branch 2002 LLC (Branch), had purchased a gas station from a previous owner who was ordered by the New Jersey Department of Environmental Protection (NJDEP) to conduct a remedial investigation and remove or treat contaminated soil from leaking underground storage tanks at the property. Ultimately, the previous owner did not conduct the required remediation, so the NJDEP oversaw remediation of the property using Fund resources. The property was later sold to Branch, with the prior owner’s insurance company indemnifying all subsequent owners for any liability arising out of the prior owner’s discharge. The Fund Administrator filed the initial lien on the property for expenditures and commitments incurred by the Fund in 2002, and then later amended this lien in 2015 to reflect additional costs expended and requested that the Superior Court Clerk enter the addresses of both...

Plaintiffs Must Cast a Wide Net for Spill Act Claims

Plaintiffs Must Cast a Wide Net for Spill Act Claims

The New Jersey Appellate Division has applied the doctrine of judicial estoppel to uphold the dismissal of a Spill Act contribution action on the grounds that the plaintiffs failed to seek contribution from all potentially responsible parties that were known (or reasonably knowable) in an earlier action. The court ruled that the application of judicial estoppel in the case before it was consistent with the Spill Act’s objective to cast a wide net over those responsible for hazardous substances and their discharge on the land and waters of the state. “Plaintiffs are precluded from floating a lazy cast toward one discharger and then shooting a second line toward others, seeking contribution for cleanup of the same property.” The plaintiffs in Terranova v. Gen. Elec. Pension Trust (Docket No. A-5699-16T3), owners of commercial property that had long been used as a gas station, brought this action in 2015. The defendants were owners/operators of the property from 1960 through 1980, during which time soil and groundwater at the property had allegedly been contaminated by three underground storage tanks. Of consequence to the court’s decision, the plaintiffs had previously filed an action in 2010 against two separate individuals that had operated the gas station from...

New Jersey Appellate Division Upholds $225 Million NJDEP Settlement With Exxon Mobil for Natural Resource Damages

New Jersey Appellate Division Upholds $225 Million NJDEP Settlement With Exxon Mobil for Natural Resource Damages

In 2004, the New Jersey Department of Environmental Protection (NJDEP) sued Exxon Mobil Corporation under the Spill Act to recover natural resource damages (NRDs) for the Bayway refinery in Linden and another facility in Bayonne. Fourteen years later, New Jersey’s Appellate Division has upheld a consent judgment, entered by Judge Michael J. Hogan after a sixty-day bench trial, that settled NJDEP’s claims at the Bayway and Bayonne sites as well as 16 other Exxon facilities (including a terminal in Paulsboro) and over 1,000 retail gas stations, in exchange for a record payment of $225 million. In addition to the validity of the consent judgment itself, the case presented a number of important procedural questions regarding the ability of the non-party appellants – here, State Senator Raymond Lesniak and several environmental organizations – to participate in the litigation and to appeal from the trial court’s entry of the consent judgment. First, the Court upheld the trial court’s refusal to permit Senator Lesniak and the environmental groups to intervene in the case (either as of right or permissively) to argue against the settlement, holding for the first time in a reported decision that a putative intervenor must have standing, and that even under...

Sovereign Impunity?: State Cannot Be Sued Under New Jersey Spill Act for Pre-Enactment Discharges

Sovereign Impunity?: State Cannot Be Sued Under New Jersey Spill Act for Pre-Enactment Discharges

Since its original enactment in 1976, New Jersey’s Spill Compensation and Control Act (commonly known as the Spill Act) has been amended no fewer than ten times. The New Jersey Supreme Court had to grapple with that complicated history in its recent decision in NL Industries, Inc. v. State of New Jersey, No. A-44-15. Reversing the 2015 opinion of the Appellate Division, on which we have already written, the Court held that while the original statute made New Jersey subject to Spill Act liability by including the State in the definition of a “person,” subsequent amendments that (among other changes) expanded some portions of the statute to cover pre-enactment discharges did not “clearly and unambiguously” abrogate the State’s sovereign immunity for pre-enactment activities. As a result, the State can never face Spill Act liability associated with its discharges that occurred before the statute’s effective date of April 1, 1977. The case concerned the remediation of a contaminated site on the shoreline of Raritan Bay with an estimated cleanup cost of $79 million. Development plans for the area in the 1960s led to a proposal to construct a seawall. At least some of the material used in the seawall, which was completed...

Sentence First – Verdict Afterwards?: N.J. Appellate Division Holds That Spill Act Allows Private Parties to Compel Participation in Investigation Based on Potential Responsibility

Sentence First – Verdict Afterwards?: N.J. Appellate Division Holds That Spill Act Allows Private Parties to Compel Participation in Investigation Based on Potential Responsibility

The New Jersey Spill Compensation and Control Act (Spill Act) has long included a contribution provision that permits private parties to recover cleanup costs incurred to the extent that they exceed their equitable share of those costs. In its recent opinion in Matejek v. Howard, the New Jersey Appellate Division interpreted the statute to give private parties another powerful remedy: the ability to compel other private parties who may be responsible for the contamination to participate in the investigation of the contamination, even before any findings about their respective responsibility. The case arose in Hillsborough, where the Department of Environmental Protection (DEP) removed underground tanks from five units in a condominium project after oil was discovered in a nearby stream. After confirming the absence of oil in the stream a few months later, DEP took no further steps. Seven years later, with DEP’s file on the matter still open, the owners of one of the units sued the owners of the other four units, seeking to compel them to participate in and equally share in an investigation and, if necessary, cleanup of their property. Even though there was no evidence about the precise source(s) of the contamination, the trial court...

Recent New Jersey Case Serves as Warning to Redevelopers of Contaminated Sites 0

Recent New Jersey Case Serves as Warning to Redevelopers of Contaminated Sites

A recent New Jersey Appellate Division case concerning spoliation of evidence in the context of a contribution action under the New Jersey Spill Compensation and Control Act (“Spill Act”) counsels caution on the part of redevelopers of contaminated sites. The case makes clear that owners of contaminated sites must endeavor to preserve physical evidence related to the contamination as soon as litigation becomes “probable” if they hope to rely on that evidence in a future contribution action.

Supreme Court Will Decide Whether State Can Face Liability Under Spill Act 0

Supreme Court Will Decide Whether State Can Face Liability Under Spill Act

The New Jersey Supreme Court has decided to hear the State’s appeal of a September 2015 Appellate Division decision that held the State potentially liable for cleanup costs at the Raritan Bay Slag Site. As we reported last fall, the Appellate Division held in NL Industries, Inc. v. State of New Jersey that the Spill Compensation and Control Act, which imposes liability upon both dischargers of hazardous substances and on parties “in any way responsible” for the hazardous substances, is applicable to the State. Under the Appellate Division’s ruling, the State could bear liability for all or some of the cleanup costs related to a seawall that was constructed using contaminated materials. The suit alleges that the State should be held liable because it owned the land under the seawall, approved its construction, issued a riparian grant to the developer that sought to build it, and issued a permit for it.

No Safe Harbor: State Can Face Liability Under Spill Act 0

No Safe Harbor: State Can Face Liability Under Spill Act

Be careful what you wish for. That may be the message of the Appellate Division’s September 23 opinion in NL Industries, Inc. v. State of New Jersey, No. A-0869-14T3. Affirming a “thoughtful and erudite” 2014 Law Division opinion by Judge Douglas K. Wolfson, the appellate court held that the onerous liability regime of the 1976 Spill Compensation and Control Act (commonly known as the Spill Act), which imposes strict, joint, and several liability for cleanups on both the dischargers of hazardous substances and on the much broader class of parties “in any way responsible” for the hazardous substances, is equally applicable to the State. As a result, the State may be responsible for a portion of the remediation of a contaminated site on the shoreline of Raritan Bay that will likely cost more than $75 million.

District of New Jersey Decision Highlights Procedural and Evidentiary Complexities Unique to the State’s Environmental Litigants 0

District of New Jersey Decision Highlights Procedural and Evidentiary Complexities Unique to the State’s Environmental Litigants

In Leese v. Lockheed Martin Corp., one of the New Jersey’s foremost environmental jurists, the Honorable Jerome B. Simandle, Chief Judge of the United States District Court for the District of New Jersey, authored a comprehensive opinion explaining why several plaintiffs who alleged harm caused by contamination on their properties were without recourse under a number of state and federal environmental laws. In so doing, the Chief Judge highlighted the procedural and evidentiary complexities unique to environmental litigants.