Search Site
Menu

Court Does Not Buy The "It's My Consultant's Fault" Argument, Affirms Penalties Against PRP for Sampling Failures

In a recent environmental case decided by the New Jersey Appellate Division, the court upheld a $20,000 penalty assessment against a leading South Jersey fuel oil company for failing to engage in proper sampling after an underground storage tank containing gasoline was found to have leaked.  The appeals court was not persuaded by the responsible parties’ “it’s my consultant’s fault” argument.

The case, titled New Jersey Department of Environmental Protection v. Nanak Auto Fuel, Inc., was decided late last week.  At issue were claims by the NJDEP that the two oil companies (Nanak Auto Fuel and Ross Fogg Enterprises) ignored several directives requiring that the oil companies sample and monitor a residential water filtration system after leaks were identified at a gas station.  The station was located near homes, whose potable drinking water sources were threatened by the leak. The NJDEP issued several directives, which were apparently not satisfied or not completely satisfied, by the companies.  After several warnings, the NJDEP fined both companies $8,000 in one assessment, followed by a second assessment for $20,000.  An administrative law judge upheld the penalties, finding that they were much lower than what could have been assessed and that the two companies had essentially done too little, too late.

An appeals court upheld the administrative law judge’s decision.  In particular, the appeals court rejected the companies’ argument that the failure to submit sample results was caused by the environmental consultant that the companies hired to do the work.  The court held that this responsibility belongs to the companies and the companies had to make sure that the work was being undertaken.  The court affirmed the penalties.

Why is this important? The Appellate Division’s decision appears to limit the ability of a company with specified environmental obligations to avoid liability because a hired consultant did not perform all of the required work.  This means that if a responsible party has specified environmental responsibilities, that party must ensure that its obligations are fully satisfied.  It may not be a legal defense that a consultant fails to fully perform the obligations delegated to him or her by the responsible party.

In short, if you are required or promise to undertake certain environmental obligations, you need to make sure that your consultant fully performs in accordance with NJDEP directives, rules and regulations.  If not, you — and not the consultant — will be held responsible in the eyes of the NJDEP.

Leave a Reply

Your email address will not be published. Required fields are marked *

Our Attorneys

Recent Twitter Posts

  • DEP urged to set tough limit on 1,4-dioxane in drinking water. https://t.co/UESauZowsJ
    1 month ago
  • Beach access issue returns in Cape May County beach community, near the location of a similar issue that was litiga… https://t.co/tWOMcfTqwM
    2 months ago
  • Another effort to make the Delaware Water Gap a national park is underway. https://t.co/C00NZ43nZU
    2 months ago
  • New Jersey seeks designation of Lower Hackensack River as a federal Superfund site. https://t.co/czOI3hDNb2
    2 months ago

Recent Blog Posts

Environmental Hearing Requests by Third Parties: An Update

In 2010 this author contributed an article discussing the difficulty that anyone other than an applicant had in administratively contesting a permit. Stuart J. Lieberman and Shari M. Blecher, “It’s
Read More
Environmental Hearing Requests by Third Parties: An Update

Hoboken cannot block residential development with new zoning ordinances, Supreme Court holds

In Shipyard Assocs., LP v. City of Hoboken, 242 N.J. 23 (2020), the Supreme Court held that the City of Hoboken could not block a waterfront residential development by enacting
Read More
Hoboken cannot block residential development with new zoning ordinances, Supreme Court holds

Long standing land use attorney Michele Donato joins Princeton’s Lieberman Blecher & Sinkevich as “of counsel”

The law firm of Lieberman, Blecher & Sinkevich is  proud to announce that Michele R. Donato, Esq. has become Of Counsel with their firm. Ms. Donato has specialized in land use,
Read More
Long standing land use attorney Michele Donato joins Princeton’s Lieberman Blecher & Sinkevich as “of counsel”

RLUIPA case in SDNY challenges alleged discrimination against Orthodox Jewish community

In December 2020, the Southern District of New York filed a lawsuit under the Religious Land Use and Institutionalized Persons Act (RLUIPA) against the Village of Airmont. The suit alleges
Read More
RLUIPA case in SDNY challenges alleged discrimination against Orthodox Jewish community

In the media

  • Gulf Coast Town Center facing foreclosure

    Naples Daily News, September 16, 2015

    Wells Fargo filed a lawsuit Sept. 8 against an affiliate of CBL & Associates, the owners of the decadeold, 1.2 million-square-foot mall in south Fort Myers for a $190.9 million unpaid loan. The center has 94 stores on 204 acres, with such anchors as Super Target, Belk, Best Buy, Dick’s Sporting Goods, Marshalls and Costco...

    Read More
  • Town liable for private company's leaking underground tanks, court rules

    NJ.com Jul 26, 2017

    CRANFORD -- A couple that owned a businesses in town and became sick from leaking underground tanks owned by an adjacent business can sue the township for damages because the tanks were partially ...

    Read More
  • Dark Waters: How a Class Action Catapulted NJ to Forefront of 'Forever Chemicals' Battle

    NJ Law Journal Jan 09, 2020

    As property owners become increasingly aware of PFAS contamination, and as individuals exposed to PFAS learn of the health risks associated with exposure, liability will likely affect entire supply chains.

    Read More
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
Contact Our Firm

Quick Contact Form