Polluter Must Pay, But Only If Responsible

New Jersey Law Journal
September 29, 2011

New Jersey's Spill Compensation and Control Act, one of the toughest environmental cleanup laws in the nation, requires that anyone who discharges a hazardous substance, or is in any way responsible for a hazardous substance, is strictly liable, jointly and severally, without regard to fault, for all required cleanup and remediation costs. Our courts have found liability more liberally under this state act than federal courts have under the Superfund law. The underlying principle is that the "polluter pays" for environmental cleanups.

But as Appellate Division Judge Anthony Parrillo recently reminded us in N.J. Department of Environmental Protection v. Dimant, even under strict liability principles, the DEP must still provide competent proof, by a preponderance of the evidence, that there is a nexus between the alleged polluter's discharge and the need for a cleanup. In the words of the court, it is the DEP's "burden to demonstrate that defendant had some connection to the damages caused" by the contamination. One cannot be "responsible" for a hazardous substance without having some connection to the site on which the substance was deposited and caused harm.

At issue in Dimant was groundwater contamination on several properties in Bound Brook. Possible suspects included several neighboring dry-cleaning establishments, a gas station, and two nearby industrial Superfund sites. The DEP sued some dry cleaners and the owners of the strip mall, who settled out of court, leaving Sue's Clothes Hanger, another dry cleaner who used the chemical at issue for less than two years in the late 1980s, as the sole defendant at trial. Sue's expert testified, convincingly, that given the characteristics of the chemical in question, less than two years was insufficient time for any discharge from Sue's to migrate to, and contaminate, the polluted properties. The DEP's expert agreed that the contaminants predated Sue's operations, and could not tie any discharge from Sue's to the polluted site. The trial judge found that the DEP's expert was unable to establish or identify the source of the chemical that contaminated the groundwater, and noted that there were other alternative sources for the contamination besides Sue's.

The DEP argued that it did not have to prove a direct causal connection between the discharge from Sue's and the contaminated properties; rather, the Spill Act should be very broadly applied to find that any discharge from Sue's, no matter how de minimis, results in liability, notwithstanding the lack of any demonstrated nexus.

The trial judge and the appellate panel rejected the DEP's argument. Both agreed that the DEP failed to prove the "critical factor that triggers Spill Act liability, namely that defendant must be in any way responsible for the discharge that caused the contamination" [emphasis by the court].

The Supreme Court has granted the DEP's petition for certification. The DEP makes the overblown claim that the appellate court's decision will "eviscerate the 'polluter pays' principle." We disagree, and urge the Court to affirm, since the appellate court's decision is hardly novel, and merely reinforces traditional principles of liability and responsibility that require a demonstration that the alleged polluter actually caused the pollution complained of. Instead of trying to convince the Court to water down established legal standards of liability, the DEP should direct its efforts toward obtaining experts that are more competent and better qualified.