Archive for the tag 'Spill Act'

NJ App. Div. dismisses Spill Act contribution claim due to primary jurisdiction of NJDEP.

SteveK September 1st, 2011

In Magic Petroleum, Inc. v. Exxon Mobil, the New Jersey Appellate Division dismissed, without prejudice, Magic’s claim for contribution of remedial costs against Exxon due to NJDEP’s primary jurisdiction of the remedial investigation at the plaintiff’s property. Plaintiff had been the subject of an administrative consent order (ACO) to investigate and remediate contamination at its property resulting from leaking underground storage tanks.  Plaintiff contended that the majority of the contamination came from the neighboring Exxon station and refused to comply with its obligations under the ACO until the NJDEP required Exxon to participate in the investigation. Magic litigated its obligations under the ACO through administrative proceedings, and was required to follow the order. Magic, however,  continued to refuse to conduct the investigation, insisting that the investigation should be imposed upon and shared by Exxon. The NJDEP eventually took over the investigation of the plaintiff’s property. Magic then commenced a contribution action against Exxon.

Exxon filed a motion to stay or dismiss the proceedings, without prejudice, pending the NJDEP’s investigation and remediation of the Magic property, arguing that the NJDEP’s efforts must precede any decision by the court. The trial judge dismissed the case, deferring to the NJDEP’s primary jurisdiction. The Appellate Division affirmed.  The Appellate Court noted that under the doctrine of “primary jurisdiction” a court may defer to an agency where the resolution of an issue is within the special competence of the agency. The court further noted that private contribution rights under the Spill Act require the court to allocate responsibility for remediation costs, but that the initial determination of whether a party is responsible can be decided by the NJDEP, and that “only the DEP can define the contaminants, determine the extent of the discharge, identify the authorized forms of investigative testing, and permissive methodology of cleanup.” Furthermore, “to be entitled to reimbursement and contribution under the Spill Act, a party must obtain written approval under from the DEP of the investigation and proposed remedial action.”  Accordingly, the court concluded that these decisions were within the scope of the special expertise of the DEP and should be determined prior to the case being able to proceed.

This decision demonstrates that a responsible party under the Spill Act that does not conduct investigation and remediation, but allows it to be done by the State, does so at its peril. To do so may have a significant impact in the party’s ability to pursue a contribution claim against other responsible parties, as it allows the NJDEP to determine and define the scope of the investigation, remediation, and possibly to potentially influence any future contribution claim or allocation. It is interesting to consider the effect of the Site Remediation Reform Act (SRRA) on the statements by the court that the DEP will define the contaminants, the extent of the discharge, the forms of investigation and the method of cleanup. Under the SRRA these determinations can be made by a Licensed Site Remediation Professional (LSRP), in accordance with the regulations for site investigation and remediation, referred to the Tech. Regs.  Accordingly, it is may not be that the DEP has to make these decisions. This points, again, to the importance of the party seeking contribution to address and control the response to be able to develop the information, and assert and control the contribution claim.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, 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.

 

 

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In NRD claim, trial Court dismisses common law causes of action of nuisance and trespass under the statute of limitations as they are not “environmental laws” and there was no “continuing tort.”

SteveK May 20th, 2011

In NJDEP v. Saint Gobain Plastics Corp. DiFrancesco, Bateman succeeded in having the State’s common law claims for natural resource damages (NRD) dismissed under New Jersey’s 10 year statute of limitations for the State’s assertion of claims: N.J.S.A. 2A:14A-1.2.  Contamination was discovered at defendant’s property in 1991. The defendant entered into an Administrative Consent Order and commenced site remediation immediately. The remedial efforts have continued to date.  The State was aware of the discharge in 1991, but did not institute a claim for NRD until 2005. Although defendant was previously held liable under the New Jersey Spill Act, the defendants sought summary judgment on the State’s common law claims for nuisance and trespass.  Judge LaConte of the Superior Court of Passaic County ruled in favor of defendant, holding that the common law claims for NRD do not constitute claims under the “State’s environmental laws” as defined in N.J.S.A.  58:10B-17.1.c., and therefore, the limitations period would not be extended for 5 years and 6 months from January 1, 2002 as provided for in section N.J.S.A.  58:10B-17.1.b. The Court concluded that since the statute extending the time for filing referred to nine specific statutes, and then referred to ,”… any other law or regulation by which the State may compel a person to perform remediation activities on contaminated property…” that the prior language demonstrated the intent of the legislature to limit the extended time period to statutes, not common law causes of action that may be used for purposes other than environmental protection.

Judge LaConte also rejected the State’s alternative theory that the continued presence and alleged migration of contaminants in the ground water constituted a continuing tort. The Court concluded that the “curative action” occurred when the seepage pit was removed in1991 and, as a result, no “new” contamination occurred. As a result, Judge LaConte ruled that “[a]lthough the effects of the discharge are still present…and may persist for decades, the alleged nuisance and trespass caused by the defendants no longer continued after 1991.” The Judge observed that if the tort was deemed to continue until the “end of remediation, long after the cause of the contamination had been removed, it would provide plaintiffs with an almost infinite amount of time to file common law causes of action.” In fact, he noted, this would even provide the State more time to file common law claims than had been extended by the legislature in N.J.S.A. 58:10B-17.1.

The decision is presently unreported. A copy can be obtained from Steven A. Kunzman, who represents Saint-Gobain in the matter.

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

 

 

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NJ Trial Court Rules against NJDEP on NRD claim for failure to prove compensable harm or loss.

SteveK August 17th, 2010

In NJDEP v. Essex Chemical Corporation, a trial court of the New Jersey Superior Court recently ruled that the NJDEP had failed to prove that contamination to ground water resulted in compensable harm or loss entitling the State to an award of natural resource damages (NRD.)  Essex Chemical had owned and operated a facility where chlorinated volatile organic compounds were handled and later found in ground water. Essex commenced remedial actions under New Jersey law in 1984 and has continued to meet their obligations to conduct site remediation to the present day.

The NJDEP commenced an action for NRD in 2007, contending that the contamination to the ground water has resulted in a compensable loss to the people of the State and entitles the State to damages under the NJ Spill Act. The evidence at trial demonstrated that the remedial work was approved by the NJDEP and complied with the regulations governing site remediation (Tech. Regs.). The State’s expert on resource economics utilized a resource equivalency approach (REA) to support his damage evaluation, positing that the value of the loss can be based upon the cost of land that would support the same recharge to the ground water of the area contaminated. The Court rejected the expert’s opinion holding that it was not convinced that the method of calculation of compensatory damages was proper for the resource in question. The Court acknowledged that the REA approach was appropriate for loss of wildlife (e.g. fish, birds), or where the contamination has an effect on human health. Where, however, no such harm was identified, the Court did not accept the expert’s method of assigning values “to things that are normally invaluable,” presented as “non-use” values.  Since there was no evidence that the land in question will be developed nor any evidence that there was an intention to use the ground water or what it’s “non-use” value would be, the court found in favor of Essex Chemical and dismissed the claims.

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.

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