The New Jersey Appellate Division recently held that an action brought under the New Jersey Environmental Rights Act (ERA) to enforce the Spill Compensation and Control Act (Spill Act) may properly be referred to the Department of Environmental Protection (DEP) until the site clean-up is complete. In Meyer v. Constantinou, the owner of a former gas station sued the owners and operators of a neighboring dry cleaning business under the ERA and the Spill Act. While remediating contamination relating to a leaking underground storage tank, the former gas station owner discovered contamination from chemicals including perchloroethylene (PCE) which were never used at the site but are often used by dry cleaning operations. Further investigation revealed that the PCE contamination had, in fact, originated at the neighboring dry cleaners. While the parties conducted discovery, the DEP became involved, engaging in extensive communications with the parties concerning the remediation of the site which culminated in a Notice of Violation to several of the parties for failure to conduct the remediation as previously required by the DEP. Defendants thereafter filed a motion to refer the action to the DEP pursuant to N.J.S.A. 2A:35A-8, which directs a court to remit parties to administrative hearings, if available, to determine the legality of the defendant’s conduct.

 In granting the motion, the trial court described a conference call it conducted with the DEP, the parties, and the Attorney General’s office, during which the trial court determined that the DEP was taking action to enforce environmental laws with regard to remediating the PCE contamination. The trial court noted that the ERA authorizes citizen suits when the DEP refuses to act and is only available to prevent future harm, not to compensate for past harms. While the trial court noted that the DEP had not initiated a civil action, the court noted that the DEP had continually encouraged voluntary clean-up by the parties, and had been otherwise involved with the site cleanup until the present. Finally, the trial court also dismissed the gas station owner’s common law claims without prejudice, citing concerns of judicial economy.

 The owners of the former gas station appealed the decision, arguing that the trial court had misapplied the doctrine of primary jurisdiction. The doctrine of primary jurisdiction holds that it is appropriate for a court to defer jurisdiction to the appropriate administrative agency in order to promote proper relationships between agencies and courts, as well as to allow the agency to employ its expertise to sort out issues and claims. The Court held, however, that the doctrine of primary jurisdiction need not be examined to properly reach the decision of the trial court. Instead, the internal provisions of the ERA satisfy the purposes of the primary jurisdiction doctrine, i.e. protecting against fragmented adjudication and ensuring consistent results. According to the Court, the ERA accomplishes this end by permitting the DEP to become involved in a private litigant’s right of action, which has the same effect as requiring a court to refer a matter to the agency under the doctrine of primary jurisdiction.

 However, even in a case in which the DEP chooses not to intervene, the court may still utilize the DEP’s expertise in order to reach a just outcome. As a result, the trial court properly determined that the DEP was adequately involved based on its conference with the parties and the DEP. Finally, the Court held that, while courts are responsible for allocating liability of remediation costs, those costs cannot be determined until the DEP approves the procedures used to determine the extent of the contamination and the costs to remediate it. Thus, the trial court was permitted to rely on the expertise of the DEP and did not err in reaching the conclusion that the matter should be referred to DEP pursuant to N.J.S.A. 2A:35A-8 until the cleanup is complete.

 While the case is unpublished, it will likely be persuasive in the context of ERA claims and site remediation going forward. The attorneys at Lieberman Blecher & Sinkevich P.C. will be closely following the developments in this area of the law. Our attorneys are highly experienced in environmental litigation, site remediation, and regulatory issues, and have assisted many clients in cases involving contaminated site clean-up and the ERA. Our attorneys are poised to address the impact of this recent decision in present and future cases.