N.J. App. Div. rules that Spill Act liability requires a nexus between a discharge and the contamination of the surrounding environment.
SteveK July 5th, 2011
In NJDEP v. Ofra Dimant, et.al. the New Jersey Appellate Division recently confirmed that liability under the Spill Act, requires a connection between the discharge of a contaminant and the contamination of the environment of that contaminant that was caused by the discharge. In the case, the defendants included succession of owners and operators of a dry cleaning establishment. The contamination in the groundwater included the well known dry cleaning chemical, PCE, as well as the byproducts of its degradation: TCE and DCE. There was evidence that the PCE was related to the dry cleaning operations. All but one of the direct defendants settled with the State. The remaining defendant went to trial. The trial judge found that although there were discharges or releases of PCE during the stewardship of the remaining defendant, there was no proof that those discharges went through the asphalt and contaminated the environment. Since there was no nexus between the discharge and the remediation, the claims against the defendant were dismissed. The State also sought leave to amend the complaint to add certain other prior operators. The denial of that motion by the trial judge was affirmed as being made too late in the case; in fact, it was made near the end of the trial. This case affirms the need for the State or any plaintiff in a Spill Act case to demonstrate a nexus; and further reaffirms that there is no liability for passive migration of contaminants during the ownership of property.
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.