NJ High Court Rules State Not Liable for Raritan Bay Superfund Site

Tom Johnson | March 28, 2017 | Energy & Environment
In divided decision, dissenting justice dismisses finding as ‘interpretative acrobatics’

Credit: EPA
Contaminated slag used by the state to build beach protection at Raritan Bay
The state cannot be held liable for pollution discharges that occurred prior to the adoption of one its most important environmental laws, the New Jersey Supreme Court ruled yesterday in a divided decision.

In a case involving one of the state’s 114 Superfund hazardous waste sites, the justices decided the state has no cleanup liability for a toxic discharge stemming from its approval to build a seawall and beach protection projection in Laurence Harbor in Old Bridge.

The case hinges on whether the state could be held responsible for discharges that occurred before enactment of the 1976 New Jersey Spill Compensation and Control Act, a finding that could have imposed significant fiscal constraints on the state government given the number of hazardous waste sites here.

The law, one of the more effective legal tools the state has in forcing polluters to pay for hazardous spills and discharges, has led to countless cleanups of contaminated sites around New Jersey since its enactment, most of which occurred prior to the adoption of the law.

In this instance, the litigation centers on the state’s role in creating the Raritan Bay Slag superfund site on the shoreline of Raritan Bay. In the early 1960s, the state began a beach protection project that eventually included a seawall constructed by Sea-Land Development Corp., with “slag,’’ an industrial byproduct from the nearby NL Industries, Inc. factory in Perth Amboy.

The New Jersey Department of Environmental Protection approved the seawall and beach restoration, partially on state land, using slag on the former and an existing jetty. In 2007, the state agency discovered contamination, including lead, arsenic, and copper, along the seawall, leading to an investigation by the U.S. Environmental Protection Agency, and ultimately it being placed on the Superfund priority list.

When the federal agency demanded NL Industries clean up the site, the company filed a claim in state court seeking to have New Jersey pay its share of the $79 million projected cleanup cost. The trial court decided in favor of NL Industries, ruling the original Spill Act specifically listed the state as a potentially liable “person’’ in cases where and when discharges occur. The appellate court agreed.

In its 33-page ruling, the majority court found, after going through the legislative history of the Spill Act and subsequent amendments, otherwise. “It is clear that the inclusion of the state in the definition of ‘person’ subject to the Act when first enacted did not render the state liable for any pre-enactment activities.’’

It added, “We fail to see from that combinations of amendments in 1979 any basis for establishing any legislative intent whatsoever — let alone a clear or unambiguous intent — to abrogate the sovereign immunity otherwise applicable to the state’s activities occurring before the Act became effective in 1977.’’

In the decision, the justices also appeared concerned about “the profound impact on the fiscal affairs of the state’’ in a reference to the absence of a specific indication the Legislature intended to waive sovereign immunity retroactively.

In an unusually long seven-page dissent, Justice Barry Albin disagreed, saying that in passing the original Spill Act, lawmakers make no distinction between the state and private parties as toxic dischargers or owners of contaminated properties. He described the majority’s dissent as requiring “interpretative acrobatics.’’

“In language that leaves no room for doubt, the Legislature made clear that if the state is a polluter, it is as responsible as any other party for the cleanup costs of a toxic site — regardless of when the contamination occurred,’’ Albin wrote. “This clear expression of legislative intent constitutes an unmistakable waiver of sovereign immunity.’’

Dennis Toft, an environmental attorney, took issue with the majority’s opinion. “It’s not necessarily reflective of where liability of the Spill Act is supposed to occur,’’ he said. “It really turns things on its head a bit because the state should share responsibility.’’