Search Site
Menu
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 & Sinkevich P.C. have handled countless cases involving New Jersey’s Spill Act and Environmental Rights Act.

Leave a Reply

Your email address will not be published.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

Our Attorneys

Recent Twitter Posts

  • Fishing to be allowed in future wind farm off the coast of Atlantic City. https://t.co/x8vlsXFtcW
    1 week ago
  • New Jersey Economic Development Authority approves pilot program to replace diesel trucks with electric vehicles in… https://t.co/EZ5xkmDIjY
    1 week ago
  • New Jersey sues the Federal Government over PFAS contamination at military bases. https://t.co/f3BTcTmMJ8
    1 week ago
  • Bald eagles, continuing a remarkable comeback, are now nesting in all 21 New Jersey counties. https://t.co/F8i2rKUedo
    2 weeks ago

Recent Blog Posts

Underground storage tank leaks may lead to development delays and costly clean-ups

Earlier this month, multiple sources reported an oil leak at a redevelopment site in Haddonfield, New Jersey. According to the Borough of Haddonfield’s press release dated January 6, 2021, the
Read More
Underground storage tank leaks may lead to development delays and costly clean-ups

New Jersey Court of Appeals rules in favor of DEP’s ability to create public beach access over private property

In an April 2020 decision of a matter comprised of 63 consolidated cases, the New Jersey Court of Appeals affirmed that the New Jersey Department of Environmental Protection (“NJDEP”) has
Read More
New Jersey Court of Appeals rules in favor of DEP’s ability to create public beach access over private property

Changes to expect in environmental regulation with the incoming administration

President-elect Joe Biden ran on a platform that highlighted climate change and environmental regulation as national priorities. His plans state the intention to take the necessary steps to decrease our
Read More
Changes to expect in environmental regulation with the incoming administration

NJDEP files Additional Natural Resource Damages claims

The State DEP continues to pursue natural resource damages (called NRD) claims. These are lawsuits where the relief sought is not just a cleanup, which is normally the relief sought
Read More
NJDEP files Additional Natural Resource Damages claims

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