Posted on December 3, 2012 by John A. McKinney Jr
Prior posts (by David Farer and William Hyatt) have featured comment on the litigation that resulted in the New Jersey Supreme Court’s decision in NJDEP v. Dimant(September 26, 2012) under the New Jersey CERCLA analog, the Spill Act, requiring a “reasonable link” between the discharge, the putative discharger, and the site specific contamination. This alert focuses on the implications of the decision for building a liability case.
Dimant concerned liability for required remediation of perchloroethylene (“PCE”) contaminated groundwater at a site. The New Jersey Department of Environmental Protection (“DEP”) inspectors observed for a portion of one day a pipe dripping a liquid onto blacktop. Testing showed the drip contained more than 3,000 times the maximum contaminant level for PCE. There was no evidence presented at trial, however, to indicate the blacktop was cracked, where the drips went, or the frequency or duration of the drips. The DEP did not establish groundwater flow direction and therefore could not prove if the pipe location was up or down gradient of the PCE contaminated groundwater requiring remediation. Also, there were several other potential sources of PCE in proximity to the defendant. In other words, there was no proof connecting the defendant’s discharge of PCE to the PCE contaminated groundwater.
Keep in mind that the Spill Act imposes strict, joint and several liability on a person discharging or “in any way responsible” for a discharge, an arguably very broad standard indeed. In its decision, the Court made it clear that “in an action to obtain damages, authorized cost and other similar relief under the [Spill Act] there must be shown a reasonable link between the discharge, the putative discharger and the contamination at the specifically damaged site.” The Court disclaimed a proximate cause analysis, but did require “sufficient proof of a reasonable, tenable basis” showing how the discharge resulted in the contamination causing at least some of the damage at issue. In short, the DEP failed to demonstrate “the requisite connection” between the dripping PCE and the PCE contaminated groundwater.
What sunk the DEP’s case was a failure to prove the nexus between drips of PCE to the blacktop’s surface and some pathway for contribution of PCE through the soil and into the groundwater. To avoid a similar fate, plaintiffs (including the State) will need proof that the defendant’s discharge actually reached the contaminated resource. That evidence might be historical, physical or chemical analyses done to determine the source of releases affecting the resource. This type of work is often referred to as environmental forensics and finding the right experts in this field will, in many New Jersey cases, be critical to establishing the “reasonable link” required by NJDEP v. Dimant. To the extent that other state courts follow New Jersey’s lead, similar proofs will be necessary.