SteveK June 1st, 2011

As a follow up to the recent post on the trial court in NJDEP v. Saint-Gobain, the New Jersey Appellate Division has taken a contrary view, which now governs the issue in New Jersey. In a published opinion in the ongoing litigation regarding Exxon Mobil’s Bayway and Bayonne facilities, New Jersey Dep’t of Env. Protection v. Exxon Mobil Corp, the court held that the State’s common law strict liability claims for NRDs were not barred by the general ten-year statute of limitations applicable to actions commenced by the State. N.J.S.A. 2A:14-1.2. The court, reversing the trial court, held that an exception to the ten-year statute, specific to environmental laws, known as the Extension Statute, N.J.S.A. 58:10B-17.1, applies not only to statutory environmental laws, but also to common law causes of action implementing environmental programs
The Extension Statute provides:
b. (1) Except where a limitations provision expressly and specifically applies to actions commenced by the State or where a longer limitations period would otherwise apply, and subject to any statutory provisions or common law rules extending limitations periods, any civil action concerning the payment of compensation for damage to, or loss of, natural resources due to the discharge of a hazardous substance, commenced by the State pursuant to the State’s environmental laws, shall be commenced within five years and six months next after the cause of action shall have accrued.
Exxon argued in that the Extension Statute’s use of the term “environmental laws” after a listing of 9 prior statutes limited the extension to statutory causes of action. The App. Div, however, looked to legislative history and concluded that the legislature intended to expand the scope of the authority of the DEP, not to limit it. As a result, NJDEP has the ability to pursue common law causes of action, along with the strict liability provision of Spill Act, in matters involving NRDs; neither of which will be constrained by the general ten-year statute. This decision maybe important as common law remedies and damages may be broader and may permit the State to seek to present their case before a jury as there is some question whether there is a right to a jury trial under the Spill Act.

In a separate decision the Appellate Court also ruled on the State’s claim for an interlocutory payment by Exxon Mobil for natural resource damage assessment costs of approximately $1 million.  The costs represent the invoices of five experts that prepared reports for DEP regarding the claimed natural resource damages under the Spill Act. The Court affirmed the trial court’s denial of the interim payment since there is a significant dispute as to the reasonableness of the costs and whether they are duplicative of defendant’s efforts. The panel concluded that the award of such costs is best reserved until resolution of the factual issues at trial.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contactSteven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department

Tags: Contamination, Environmental Law, Groundwater, Natural Resource Damages, NJ Spill Act, NRD, Statute of Limitations

• Environmental Law , Natural Resource Damages , NJ Spill Act
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