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Appellate Division Sheds Light on Procedural Requirements for Certain Environmental Claims

A recent Appellate Division case shed some light on certain procedural requirements for environmental claims. In Bradley v. Kovelesky, et al., Docket No.: A-0423-14T4, the claims before the court pertained to an 8.3 acre property in Middletown Township. Lawrence Carton, deceased June 2007, purchased the property January 2006. Carton set out to build a residence on the property, but work stopped after the Department of Environmental Protection (DEP) issued notices of violation concerning solid waste and land use issues. Carton retained an environmental consultant and found that the soil and groundwater contained excess concentrations of benzo(a)pyrene, arsenic and other contaminants. The remediation efforts continued into 2012.

In July 2012, Carton’s estate sued certain prior owners of the property under various theories of law. Count one was for contribution under the Spill Act, N.J.S.A. 58:10-23.11f, and count two was for the same under the Brownfields Act, N.J.S.A. 58:10B-1.3, the Site Remediation Reform Act, N.J.S.A. 58:10C-28, and the Spill Act. There were four other common law counts for strict liability, negligence, trespass and nuisance.

The defendants argued that the Spill Act claim was time-barred under N.J.S.A. 2A:14-1, which established a six-year limitations period, and that the claims under Brownfields Act and the Site Remediation Reform Act were improper because those statutes do not have a private cause of action. Additionally, the defendants argued that the plaintiff’s private cause of action under the Environmental Rights Act (ERA) was not properly invoked because notice was not timely made. In this regard, the plaintiff’s filed a motion to amend their complaint to include its post-haste ERA notice. The trial court denied this motion.

The Appellate Division relied on the New Jersey Supreme Court’s recent decision in Morristown Associates v. Grant Oil Co., 220 N.J. 360 (2015) to hold that the Spill Act claims were not time-barred by the six-year statute of limitations. The court also denied the defendants equitable defenses of laches and unclean hands based, in part, on Morristown Associates, and because one cannot have laches applied against him or her where that person is unaware of his or her rights to assert a claim. The relevant inquiry, according to the Appellate Division, is “when the plaintiff discovered facts supporting a cause of action.” In addition, though the court agreed that the Brownfields Act and the Site Remediation Reform Act each lack a private cause of action, it found that the trial court erred in denying the plaintiff’s motion to amend its complaint so as to properly employ the ERA, despite the post-haste notice. Of note, the court also determined that the continuing environmental violation was likely to recur in the future, thus further satisfying the ERA.

As to the common law claims, the court determined that these were technically survival claims and thus subject to a two-year statute of limitations. Accordingly, these claims were dismissed save for the nuisance claim due to the fact that the plaintiff’s had alleged a continuing nuisance, and such claims continually accrue, “triggering a new limitations period each day the nuisance is not abated.”  The matter was affirmed in part, reversed in part, and sent back to the trial court for further proceedings.

The attorneys at Lieberman & Blecher, P.C. have handled countless cases involving New Jersey’s Spill Act and Environmental Rights Act.

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