LINK BETWEEN POLLUTION AND ALLEGED POLLUTER REQUIRED

Business owners hit with environmental cleanup costs scored a major victory two weeks ago when the New Jersey Supreme Court held that to obtain damages under the Spill Act, the Department of Environmental Protection ("DEP") must demonstrate, by a preponderance of the evidence, a reasonable connection between the discharge, the discharger, and the contamination at the damaged site. The ruling, in Department of Environmental Protection v. Dimant, upheld two lower courts that found insufficient evidence a Bound Brook laundromat and dry cleaning establishment caused the groundwater pollution for which it was targeted by DEP for investigative and cleanup costs.

Dimant deals with the alleged discharge of PCE by Sue’s, a Laundromat, into numerous residential wells located in Bound Brook and employment of the Spill Act’s various remedies.  To summarize, the Spill Act strictly prohibits the discharge of hazardous substances and establishes a broad scope of liability for offenders. N.J.S.A. 58:10-23.11c.  A “discharge” occurs when a hazardous substance is spilled or otherwise released “into the waters or onto the lands of the State, or into waters outside the jurisdiction of the State when damage may result to the lands, waters or natural resources within the . . . State.” N.J.S.A. 58:10-23.11b.  A spill within the state constitutes a discharge and is subject to various remedies which can be injunctive, investigative, or remedial in nature. Here, the Court found Sue’s committed a “discharge” by operating a business where a pipe leaked fluid containing PCE onto the ground because its actions resulted in the leaking of hazardous substance onto the lands of the State. According to the Court, because there are not even minor exceptions to the prohibition against discharging hazardous substances, the only question to be determined was whether the DEP connected the discharge at Sue’s to the relief it sought against Sue’s which was investigative and cleanup costs.

New Jersey’s Spill Act is considered to be one of the founders of “clean up” legislation; the purpose of the Spill Act is to provide liability for damage sustained within this State as a result of any discharge of hazardous substances, anyone who is “in any way responsible for any hazardous substance” is strictly liable, upon its discharge, for “all cleanup and removal costs no matter by whom incurred.” N.J.S.A. 58:10-23.11g(c)(1).  Cases discussing the phrase “in any way responsible” emphasize a requirement that the State show some connection between discharger to the discharge. Attention thus turned to determining what proof DEP was required to present in order to prevail? The Court looked to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") and determined it would be inappropriate to adopt the CERCLA standard because that statute requires only “some connection”.

The Court then looked at the legislative history and determined that the legislature intended to distinguish between damages and cleanup expenditures, with liability for cleanup costs to be imposed without regard to fault.  But does that mean DEP must show proximate causation in order to prevail on a claim for damages?  In the Court’s opinion, no — while some causal link is required to obtain damages, the Court found that placing a proximate-cause requirement on DEP would thwart the purpose of the Spill Act. Rather, to accommodate the Spill Act’s various forms of relief, the Court held that the discharger must be shown by a preponderance of the evidence to have committed a discharge.  Proof that a defendant produced a hazardous substance and that the substance was found at the contaminated site (as was the situation in Dimant) is simply not enough in the Court’s opinion. On proof of the existence of a discharge, DEP can obtain injunctive relief under the Spill Act. In an action to obtain damages and costs however, the Court held that there must be a reasonable link between the discharge, the discharger, and the contamination at the specifically damaged site.  Otherwise, you end up with the situation in Dimant. 

In Dimant, DEP tested two sites at Sue’s 1988- 10 years prior to any action being taken against it.  At one site, DEP found PCE dripping from machines inside the laundromat into a sanitary sewer system which was determined not to be the cause of the contamination.  At the second site, on one occasion DEP observed PCE dripping from a pipe outside onto the ground.  The Supreme Court found no reason to disturb the findings that the DEP’s proofs were inadequate to obtain the relief sought from Sue’s. The Court agreed that the proofs failed to connect the discharge from the pipe, during Sue’s operation, to the soil or groundwater damage. The Court also agreed that DEP never presented sufficient proof for how the drip of fluid containing PCE observed at Sue’s on one day in 1988 resulted in the contamination of the groundwater in Bound Brook.  In the Court's opinion, the fact that DEP never retested the pipe again or took pictures of the drip was properly determined by the lower court to suffice as circumstantial evidence that the DEP did not consider the drip to be of significance regarding its investigation of the source of the groundwater contamination.  As such, DEP’s claims for relief for loss of natural resources and for reimbursement to the State for the cost of remedying the groundwater contamination were appropriately rejected.

For more information, or if you have other legal concerns, email Gavin Handwerker, Esq. at gih@beinlaw.com.  

More Case Dismissals Coming From Municipal Court?

With passage of New Jersey Senate bill S2169, more people would be eligible for having charges dropped against them in municipal court.  Otherwise known as a conditional discharge, this pre-trial intervention program from municipal court was only available to first-time drug offenders who had never participated in a pre-trial intervention program.  The program, which is run by the probation department, is usually for 12 months; and upon successful completion of the program, the charges against the defendant are dismissed. 

One caveat for those considering taking a conditional discharge is that a subsequent arrest for something more serious will preclude you from participating in a future pre-trial intervention program.  Likewise, if a person does not successfully complete the program, the person's case will be referred back to the municipal court for prosecution and the person is also precluded from taking advantage of a pre-trial intervention program in a future case as well.

I have been a big supporter of expanding the conditional discharge program to other offenses and glad to see that this may finally become a reality and awaits the Governor's signature.  That being said, the Senate bill did not make the program available to all offenses (rightfully in my opinion).  The program would not be available if you already participated in a conditional discharge or other pre-trial intervention program.  It would also not be extended to those charged with organized criminal or gang activity; a continuing criminal business enterprise; a breach of the public trust by a public officer or employee; domestic violence; an offense against the elderly, disabled or minor; any motor vehicle offense involving alcohol or drugs; animal cruelty and certain disorderly persons offense.

For more information, or if you have other legal concerns, email Gavin Handwerker, Esq. at gih@beinlaw.com.