Search Site
Menu
Appellate Division Holds Spill Act and ERA Actions May Be Referred to NJDEP Until Site Clean Up Completed

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, 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.

 

Leave a Reply

Your email address will not be published.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

Our Attorneys

Recent Twitter Posts

  • With Lawsuits, New Jersey Signals Tougher Stance on the Environment. https://t.co/1Zcrce6Cur
    5 days ago
  • EPA Proposes Action to Enhance Cleanup Work Already Underway at the Fair Lawn Well Field Superfund Site. https://t.co/KGU9JE2nJC
    1 week ago
  • Giant sea gate proposed by Army Corps for New Jersey and New York. https://t.co/xSGA9D4eAV
    3 weeks ago
  • Environmental groups criticize the NJDEP's issuance of permits for the Meadowlands power plant. https://t.co/QhZxRtTBkk
    1 month ago

Recent Blog Posts

NJ Supreme Court Sees Standing in Tax Lienholders to Challenge Municipal Approval

On August 2, 2018, New Jersey’s Supreme Court held that a holder of a municipal tax lien may have standing to challenge a local planning board’s approval for a neighboring
Read More
NJ Supreme Court Sees Standing in Tax Lienholders to Challenge Municipal Approval

The Downside to Higher Ground: Appellate Division affirms finding of a townhome owner’s negligence and responsibility for water damage to a below unit caused by a prolonged leaking washing machine hose

On August 1, 2018, the Superior Court of New Jersey, Appellate Division ruled in favor of plaintiff in the matter captioned Joseph S. D’Elia v. Joyce Campisi and Liberty Mutual
Read More
The Downside to Higher Ground: Appellate Division affirms finding of a townhome owner’s negligence and responsibility for water damage to a below unit caused by a prolonged leaking washing machine hose

United States Supreme Court Tackles Key Clean Water Act Judicial Review Issue

National Association of Manufacturers v. Department of Defense, et al. 583 U.S. ____ (2018) Decided January 22, 2018 Since the passing of the Clean Water Act in 1972, the definition of “the waters
Read More
United States Supreme Court Tackles Key Clean Water Act Judicial Review Issue

New Jersey Voters to Decide Important State Constitutional Amendment concerning the Environment

On Tuesday, November 7, 2017, New Jersey voters will be asked to decide on a state constitutional amendment regarding the use of natural resource damages collected by the State in
Read More
New Jersey Voters to Decide Important State Constitutional Amendment  concerning the Environment

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

Quick Contact Form