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

  • 44 acres of forest preserved in Byram. https://t.co/Or5pMiHxxE
    4 weeks ago
  • Federal Court Rules Gas Pipeline Company Can Start Taking Land. https://t.co/NSRzQjQYwh
    1 month ago
  • Ridgewood Water prepares to sue corporation over chemical contamination. https://t.co/n3R1PcF1Og
    1 month ago
  • Owners of rural NJ cabins still do not know if they can keep them. https://t.co/tKh1WqjZFS
    2 months ago

Recent Blog Posts

Terranova vs. General Electric Pension Trust: Clarifying (or complicating) defenses under the Spill Act

On January 4, 2019, the New Jersey Appellate Division handed down a decision in Terranova vs. General Electric Pension Trust, Docket No. A-5699-16T3 (hereinafter, “Terranova”). In Terranova, The New Jersey
Read More
Terranova vs. General Electric Pension Trust: Clarifying (or complicating) defenses under the Spill Act

A “New Day” in New Jersey Environmental Law and Enforcement: Environmental Justice and Natural Resource Damage Cases Take Flight Under New Administration Watch

By: Michael C. Kondrla, Esq.1 In August, Attorney General Gurbir S. Grewal and the Department of Environmental Protection (“DEP”) announced the filing of six lawsuits focused on contaminated properties, three of
Read More
A “New Day” in New Jersey Environmental Law and Enforcement: Environmental Justice and Natural Resource Damage Cases Take Flight Under New Administration Watch

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

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