Search Site
Menu
State of New Jersey Not Liable for pre-1977 Hazardous Discharges

On March 27, 2017, the New Jersey Supreme Court issued a very important decision concerning Spill Act liability in contribution cases.  In the case of NL Industries, Inc. v. State of New Jersey, the Court held that the State is not liable to pay cleanup costs for “pre-Act” discharges, meaning discharges that occurred before the law’s 1977 effective date.

In so doing, the Court reversed both a trial court and appellate court decision reaching different conclusions.  This means that the State will not share any of the costs of remediating pre-1977 discharges that generally occurred on State owned property.

NL Industries had an operation that produced contaminated slag as byproduct and some of that slag was released into Laurence Harbor.  Some of the discharging occurred on property on which the State had riparian ownership.  This became a federal Superfund site and in 2014 the EPA demanded that NL Industries pay remediation costs.  NL Industries sued the State for contribution under the Spill Act because the State owned some of the property from which releases occurred.

The State moved to dismiss on several grounds.  The one relevant here is that the State never waived sovereign immunity for discharges that took place before the Act’s 1977 effective date.  Both the trial court and an appellate panel rejected NL Industries’ arguments finding that a 1979 amendment to the law clearly provided for retroactive liability to all persons, and that the State was included within the definition of person.

However the Supreme Court reversed.  After undertaking an in-depth review of the original legislation and applicable amendments, the Court found no unambiguous statement by the Legislature that sovereign immunity was waived for pre-Act releases in cases where the State would otherwise be liable.  The Court held that a waiver must be clear, and it cannot be inferred.  The majority found no unequivocal waiver.

The Court rejected arguments that the case of Department of Environmental Protection v. Ventron Corp., 94 N.J. 473 (1983), holding that the post-1979 Spill Act amendments clearly provided overall retroactive liability, did not address the narrow issue of waiver that the Court now confronted.  Likewise the majority rejected Justice Albin’s view on dissent largely holding that because the 1979 Spill Act amendment failed to remove the State from the definition of a person, that the State was liable for pre-Act releases to the same extent as every other liable party.

To conclude, the New Jersey Supreme Court excluded the State from liability for pre-1977 hazardous substance releases in contribution cases on a sovereign immunity basis.  It should be noted that the Court acknowledged that State could be held liable for post-Act releases.  The question that remains is whether the Legislature will not amend the Spill Act to respond to this decision and unequivocally waive immunity.  At least for now, that is the only way this issue can be re-visited, should the Legislature so decide that this is something it wishes to entertain.

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 day ago
  • New Jersey Economic Development Authority approves pilot program to replace diesel trucks with electric vehicles in… https://t.co/EZ5xkmDIjY
    1 day ago
  • New Jersey sues the Federal Government over PFAS contamination at military bases. https://t.co/f3BTcTmMJ8
    1 day ago
  • Bald eagles, continuing a remarkable comeback, are now nesting in all 21 New Jersey counties. https://t.co/F8i2rKUedo
    1 week ago

Recent Blog Posts

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

Landlords: Insurance companies now are denying many Mold Claims

Landlords and other property owners have so much on their plates. They need to worry about increasing utility costs. Taxes are always rising. So are maintenance and repair costs. Then there
Read More
Landlords: Insurance companies now are denying many Mold 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