Fundamentals of Municipal Environmental Law (PDF)

Special Interest Track
Fundamentals of Municipal Environmental Law
Co-Sponsored by the Local Government Section
Moderator/Speaker:
George M. Morris, Esq.
Parker McCay P.A., Mt. Laurel
Speakers:
Diane Alexander, Esq.
Maraziti, Falcon & Healey, LLP, Short Hills
Kenneth A. Porro, Esq.
Wells Jaworski & Liebman, LLP, Paramus
Joanne Vos, Esq.
Maraziti Falcon & Healey, LLP, Short Hills
© 2014 New Jersey State Bar Association. All rights reserved. Any copying of material herein,
in whole or in part, and by any means without written permission is prohibited. Requests for such
permission should be sent to the New Jersey State Bar Association, New Jersey Law Center, One
Constitution Square, New Brunswick, New Jersey 08901-1520.
The material contained in these pages is for educational purposes only and not intended as a
substitute for the professional services an attorney would normally provide to a client, including
up to the minute legal research.
New Jersey State Bar Association
Annual Convention
Fundamentals of Municipal Environmental Law
May 14, 2014
By: Joanne Vos, Esq.
Maraziti, Falcon & Healey, LLP
150 John F. Kennedy Parkway, Shot Hills, NJ 07078
Tel.: 973-912-9008 Fax: 973-912-9007
www.mfhlaw.com
ABA-EPA Law Office Climate Challenge Partner
WHAT DO YOU THINK OF WHEN
YOU THINK OF NEW JERSEY?
I. Establishing Liability
A. New Jersey Spill Compensation & Control Act:
N.J.S.A. 58:10-23.11, et seq.
The Spill Act establishes the joint and several liability of two
types of people:
(1)
a person who has discharged a hazardous substance; or
(2)
a person who is “in any way responsible” for the
discharge of a hazardous substance.
Parties “In Any Way Responsible”: N.J.A.C. 7:1E-1.6
●
●
●
●
●
●
any person whose act or omission results or has resulted in a
discharge;
each owner or operator of any facility, vehicle or vessel from
which a discharge has occurred;
any person who owns or controls any hazardous substance which
is discharged;
any person who has directly or indirectly caused a discharge;
any person who has allowed a discharge to occur; or
any person who brokers, generates or transports the
hazardous substance discharged.
B. Potential Defenses to Liability
(1) Immunity: N.J.S.A. 58:10-23.11g(d)(4)
Acquisition by a public entity through bankruptcy, tax
delinquency, abandonment, escheat, eminent domain, condemnation, or
for the purpose of promoting redevelopment, etc.
(a) Exceptions to Immunity
i. Responsible Party for the Discharge;
ii. Condemnation: where property is being
Remediated in a “timely manner” at the time of the condemnation.
2. Innocent Purchaser
Buyer must establish the following four (4) factors by a
preponderance of the evidence:
(1) the person acquired the real property after the
discharge of that hazardous substance at the real property;
(2) (a) at the time the person acquired the real property,
the person did not know and had no reason to know that any hazardous
substance had been discharged at the real property; or (b) the person acquired
the real property by devise or succession;
(3) the person did not discharge the hazardous substance, is not in any
way responsible for the hazardous substance, and is not a corporate successor to
the discharger or to any person in any way responsible for the hazardous
substance or to anyone liable for cleanup and removal costs pursuant to this
section; and
(4) the person gave notice of the discharge to the department upon
actual discovery of that discharge.
What does it mean to “not know or have no reason to
know that any hazardous substance had been
discharged”?
• Buyer must have completed due diligence by conducting a
Preliminary Assessment and Site Investigation, if necessary, at
the time of acquisition;
II. What Must A Remediating Party Do To Clean Up A Site In
New Jersey
Site Remediation Reform Act: N.J.S.A. 58:10C-1, et seq.
Before:
DEP would oversee all cleanups and approve or reject investigations and
Remedial Action Workplans. Environmental Consultants were retained to do the work
and to act as advocates for their clients with DEP. At the end of the cleanup, if the
cleanup was done to DEP’s satisfaction, a No Further Action letter (NFA) would issue.
Licensed Site Remediation Professional Program
After:
DEP does not automatically oversee cleanups, thereby achieving the goal of
reducing backlog. Environmental Consultants which have obtained a license through the
Site Remediation Professional Licensing Board are retained by remediating parties to
conduct the cleanup. LSRPs may not act as advocates for their clients because LSRPs
have stepped into the shoes of the DEP and as such, LSRPs are held to higher standards
than others. At the end of a cleanup, if the LSRP is satisfied in his/her judgment that the
remediation is protective of human health and the environment, the LSRP will issue a
Response Action Outcome (RAO), See N.J.A.C. 7:26C-6.2; DEP has 3 years to “audit”
RAOs and if there is a deficiency, the RAO can be “re-opened;” see N.J.A.C. 7:26C-6.4.
Other Notable Changes Brought About by SRRA
Affirmative Obligation to Remediate:
1) Notify
2) Investigate
3) Remediate
4) $
MANDATORY & REGULATORY TIMEFRAMES:
N.J.A.C. 7:26C-1, et seq.
Notable Timeframes
•
Notify DEP of a Discharge: within 15 minutes of discovery:
1-800-WARN-DEP;
•
Retain LSRP: upon discovery;
•
Submit Written Notification: within 14 days of discovery;
•
Submit LSRP Retention Form: within 45 days of discovery or initiation of
remediation;
•
Public Notification & Outreach: 14 days prior to initiation of field activities;
requires posting of a sign at the site with certain details regarding the remediation;
there may be enhanced requirements where contamination is migrating off site; See
N.J.A.C. 7:26C-1.7;
•
Receptor Evaluation: within 1 year of initiation of remediation;
•
Conduct Well Search:
contamination;
within 90 days after detection of groundwater
Conduct Sampling of Nearby Potable Wells: within 120 days after detection of
groundwater contamination; if contamination is detected in a potable well, requirements
for IECs apply;
Conduct Sampling of Nearby Potable Wells: within 120 days after detection of
groundwater contamination; if contamination is detected in a potable well, requirements
for IECs apply;
Updated Well Search: every 2 years after initial detection of groundwater contamination;
Vapor Intrusion Receptor Evaluation: within 60 days after determination that VI
investigation is triggered;
Conduct Vapor Intrusion Sampling: within 150 days after determination that VI
investigation is triggered; See Vapor Intrusion Guidelines;
Submit Remedial Action Workplan: 60 days prior to implementation of remedial action.
Direct Oversight
Direct oversight by DEP is mandatory where:
● the person responsible for conducting the remediation has a
history of noncompliance which includes the issuance of two (2)
enforcement actions after the date of enactment of the SRRA;
● where the person responsible for conducting the remediation
has failed to meet a mandatory remediation timeframe; or
● where the person responsible for conducting the remediation
has failed to complete the remedial investigation of the entire
contaminated site ten (10) years after the discovery of a discharge
at the site and has failed to complete the remedial investigation of
the entire contaminated site within five (5) years after the date of
enactment of the law.
Note regarding Historic Fill: If historic fill material is
contaminated above applicable soil remediation standards,
engineering and institutional controls are required as part of
the remedial action. The person responsible for conducting
the remediation must establish a Deed Notice to ensure the
continued protectiveness of the cap and must obtain a soil
remediation permit. The investigator may demonstrate that
historic fill material is already capped, making additional
engineering controls unnecessary.
III. Issues Before & After Cleanup
A. Level of Remediation: see Borough of Paulsboro regarding level of remediation of
landfills condemned by municipality; if the condemnee has no realistic liability to
conduct additional remedial activities, funds will not be required to be escrowed for the
cleanup costs (i.e. Suydam) and any additional remedial activities conducted at the site
would be at the condemnor’s election
B. Contribution: Spill Act provides for a contribution action against other Responsible
Parties for their fair share of the cleanup costs: See N.J.S.A. 58:10-23.11fa(2)(a).
Statute of Limitations: 6 years from the date of discovery; see Morristown
Associates v. Grant Oil Company: removes any remaining doubt that contribution
claims brought under the Spill Act are subject to the six (6) year property damage
statute of limitations; however, the question of when that limitations period begins to
accrue is highly fact-sensitive since the analysis is subject to the discovery rule;
remediating parties should pinpoint the identification of other parties that are
potentially responsible for a cleanup and assert claims for their fair share of the costs
as early in the process as possible, in an effort to preserve contribution claims;
whether or not the applicable statute of limitations will be deemed to have accrued
will depend upon certain evidence, including the types of the discharges at issue and
when the parties became aware, or should have become aware, of certain facts related
to the discharges.
You Know You’re from New Jersey When…
• You know that it's called Great Adventure, not Six Flags.
• You've known the way to Seaside Heights since you were seven.
• You know that the state isn't just one big oil refinery.
•You know what a "jug handle" is and you know how to make a
“Jersey left.”
•You didn’t go to the shore, you went "down the Shore"
•You don't think "What exit?" is very funny.
•You've had a Boardwalk cheese steak from Midway and an ice cream
cone from Kohr’s.
• You've NEVER, NEVER pumped your own gas!
QUESTIONS &
COMMENTS?
Joanne Vos, Esq.
Maraziti, Falcon & Healey, LLP
(973) 912-6801
[email protected]
PERMITS, PERMITTING &
COMPLIANCE
Diane Alexander, Esq.
New Jersey State Bar Association
Fundamentals of Environmental Law
for Municipalities
May 14, 2014
Permits
• Stormwater
• Water Allocation
• Waste water
Stormwater - NJAC 7:8-1.1 et seq. &
NJAC 14A-25.1 et seq.
• Stormwater Management Planning
• Major Developments
http://www.nj.gov/dep/dwq/msrp_home.htm
Stormwater Permits
• General Permits
• “Municipal Separate Storm Sewer Systems” (MS4s)
• Tier A Stormwater Permit (Tier A Permit)
http://www.nj.gov/dep/dwq/pdf/tier_a_existing_final_full_permit.pdf
http://www.nj.gov/dep/dwq/tier_a_guidance.htm
• Tier B Stormwater Permit (Tier B Permit)
http://www.nj.gov/dep/dwq/pdf/existing_Tier_B_final_renewal.pdf
http://www.nj.gov/dep/dwq/tier_b_guidance.htm
• Statewide Basic Requirements (SBRs)
• Best Management Practices (BMPs)
• Duty to Reapply N.J.A.C. 7:14A-4.2(e)3 & Administrative
Continuation of Permits N.J.A.C. 7:14A-2.8
Stormwater Ordinances
•
•
•
•
•
•
•
•
Pet Waste Ordinance
Litter Ordinance
Improper Disposal of Waste Ordinance
Wildlife Feeding Ordinance
Illicit Connection Ordinance
Refuse Container / Dumpster Ordinance
Private Storm Drain Inlet Retrofitting
Fertilizer Management Ordinance
Stormwater Enforcement
Has the Department taken enforcement actions and issued
penalties for failure to comply with municipal permit
conditions?
According to the Municipal Stormwater Regulation Program
2010 Status Summary Report – Yes.
NJDEP has conducted 2,423 Compliance Assistance
Inspections and issued $1,004,250 in penalties for failure
to comply
Penalties for Violations N.J.A.C. 7:14-8.1 et seq.
Duty to Mitigate N.J.A.C. 7:14A-6.2(a)5 & 11
Enforcement Action N.J.A.C. 7:14A-2.9
Water Allocation
• Diversion Permit - Water Diversions over
•
•
100,000 gallons per day for non-agricultural or
horticultural purposes
Water Usage Certificate - Water Diversions over
100,000 gallons per day for agricultural or
horticultural purposes
Water Use Registration is required for any
person with the capability to divert in excess of
100,000 gallons of water per day, but who
diverts less than this quantity.
Water Allocation Permitting
Water Supply Management Act (N.J.S.A.
58:1A-1 et seq.)
– Water Supply Management Act Rules
(N.J.A.C. 7:19 Subchapter 6)
– Water Supply Allocation Rules (effective
10/10/2008) (N.J.A.C. 7:19)
– Agricultural, Aquacultural & Horticultural
Usage Certification Rules (N.J.A.C. 7:20A)
Water Allocation Enforcement
• Unpermitted Diversions - NJAC 7:19-1.7
• Penalties - NJAC 7:19-1.8
• Civil Administrative Penalties and Requests
for Adjudicatory Hearing NJAC 7:19-18
Wastewater Permitting
New Jersey Water Pollution Control Act
(WPCA, N.J.S.A. 58: l0A et seq.)
Surface Water – NJPDES- DSW
Individual Permits
• Domestic Discharges- Category A
• Industrial Discharges- Category B
Surface Water General Permits
•
•
•
•
•
•
•
•
•
•
Consolidated Potable Water Treatment Plant (BPW)
Consolidated School General Permit (ASC)
Construction Dewatering (B7)
Groundwater Remediation
Clean-up (BGR)
Hydrostatic Test Water Discharges (BG)
Non-contact Cooling Water (CG)
Pesticide Application Discharge (PGP)
Petroleum Product Cleanup (B4B)
Swimming Pool Discharges (B6)
Wastewater Beneficial Reuse (ABR)
Combined Sewer Overflow (CSO) Program
Combined Sewer Overflow (CSO) means the
excess flow from the combined sewer system
which is not conveyed to the Domestic Treatment
Works for treatment, but transmitted by pipe or
other channel directly to the waters of the State.
• http://www.nj.gov/dep/dwq/cso.htm
• http://www.nj.gov/dep/dwq/pdf/cso_final_gp.pdf
Ground Water Permits
Groundwater - NJPDES-DGW
Discharges for which a NJPDES-DGW permit is required
N.J.A.C. 7:14A-7
There are 3 types of NJPDES-DGW permits:
• Individual Permits
• General Permits
• Permit-by-Rule (see NJAC 7:14A-7.5 and 8.5)
Preparation
• Start Now
• Data Review and Collection
• File Affirmative Defense Requests and
Correct Data Errors
• 303(d) Listed Parameters
Preliminary Draft Permit
• Informal Process
• Opportunity to Correct Minor Errors
• Usually Two Weeks to Submit Comments
• Carefully and Critically Review Permit
Contents
• Contact Permit Writer with Questions
Draft Permit
• 30 Day Comment Period from Publication
• All Reasonably Ascertainable Issues Must
be Raised
• Request for Variance or Alternative to
WQBEL (Procedures at N.J.A.C. 7:9B-1.8
or 1.9)
• Request Extension if Needed
Final Permit and Hearing Request
Request for Adjudicatory Hearing (N.J.A.C. 7:14A17.1 et seq.)
– 30 Days from Receipt of Final Permit
– List All Contested Issues and Legal or Factual
Questions at Issue for Each Contested
Condition
– Suggested Revised or Alternative Conditions
– Information or Documents Relied Upon in
Support
– http://www.nj.gov/dep/dwq/pdf/dwq_adjhear
req.pdf
Request for Stay of Contested
Permit Conditions
• Stay Request (N.J.A.C. 7:14A-17.6 et seq.)
– Ability to Comply Using Existing Treatment
Facilities
– Ability to Comply Using Low-Cost Short Term
Modifications and Level of Control Achieved
Utilizing the Same
– Cost to Comply
– Environmental Impacts on Water body if
Granted
– http://www.state.nj.us/dep/dwq/pdf/dwq_stayreq.pdf
Adjudicatory Hearing Process
• NJDEP/OLA Deems Contested Case and
Transfers Matter to Office of
Administrative Law
• Assignment of Administrative Law Judge
and Deputy Attorney General
• Discovery and Hearing
• Final Decision
• Appeal to Appellate Division and Beyond
Issues Frequently Raised in Hearing
Requests for Surface Water Permits
• Metals
– EEQ/DLA issues
– Copper, Lead, Zinc
• Nutrients
Flow
– 7Q10
– 1Q10
– Summer/Winter
• Arsenic
• THMs
NJDEP Regulations Effecting
Revisions to Contested Limitations
for Surface Water Permits
• Antibacksliding
• Antidegradation
– Category 1 Waters
– Category 2 Waters
• Water Quality Standards
NJPDES Noncompliance Reporting
Requirements - NJAC 7:14A-6.10
For a discharge that causes, or poses a threat to cause, injury to human health; causes,
or poses a threat to, damage to the environment; or violates a daily maximum effluent
limitation for a toxic pollutant listed in N.J.A.C. 7:14A-4 Appendix A; NJPDES Permittees
must:
Call the DEP Hotline at 1-877-927-6337 or 1-877-WARN-DEP (and to the receiving DTW,
if applicable) within two hours of the commencement of the discharge or of the
permittee's becoming aware of the discharge.
Any revision to this information for must be reported to the DEP Hotline within 24 hours
after the permittee's becoming aware of the need to revise the information.
For Upsets or Unanticipated Bypasses or for any discharge of any toxic or hazardous
pollutant listed in N.J.A.C. 7:14A-4 Appendix A, which is not covered under a permit, the
permittee must call the NJDEP Hotline within 24 hours after the commencement of the
discharge or of the permittee's becoming aware of the discharge.
What Must be Reported Within
2 Hours
A description of the discharge, including the time of the
discharge, the location of discharge, the volume of the
discharge, the concentration of pollutants discharged, and
the receiving water of the discharge;
Steps being taken to determine the cause of the permit
noncompliance; and
Steps being taken to reduce, remediate, and eliminate the
noncomplying discharge and any damage to the
environment, and the anticipated time frame to initiate and
complete the steps to be taken.
What Must be Reported Within
24 Hours
A description of the discharge, including the time of the discharge, the location of
discharge, the volume of the discharge, the concentration of pollutants discharged, and
the receiving water of the discharge;
Steps being taken to determine the cause of the permit noncompliance;
Steps being taken to reduce, remediate, and eliminate the noncomplying discharge and
any damage to the environment, and the anticipated time frame to initiate and complete
the steps to be taken;
The duration of the discharge, including the dates and times of the commencement and,
for an unanticipated bypass, the dates and times of the end or anticipated end of the
discharge, and if the discharge has not been corrected, the anticipated time when the
permittee will correct the situation and return the discharge to compliance;
The cause of the noncompliance;
Steps being taken to reduce, eliminate, and prevent reoccurrence of the noncomplying
discharge;
An estimate of the threat to human health or the environment posed by the discharge;
The measures the permittee has taken or is taking to remediate the problem and any
damage or injury to human health or the environment, and to avoid a repetition of the
problem.
Written Submission
• Based upon the violation, a written
submission is required within 5, 10 or 30
days pursuant to N.J.A.C. 7:14A-6.10(e).
• Failure to file written submission will result
in denial of an affirmative defense and
may result in penalties for failure to
comply with the terms of a NJPDES
Permit.
Affirmative Defenses - NJAC 7:14-8.3(i)
•
•
•
•
•
Upset
Anticipated Bypass
Unanticipated Bypass
Testing or Laboratory Error
Permitted Groundwater Remedial Action
To the extent not caused by operational error, improperly designed
treatment facilities, inadequate treatment facilities, lack of preventative
maintenance, or careless or improper operation or maintenance.
Violator must comply with requirements of NJAC 7:14A-6.10
Grace Periods
Grace Period Rule - NJAC 7:14-8.18 et seq.
Applies to minor violations that pose a minimal risk to the public
health, safety and natural resources; does not materially and
substantially undermine or impair the goals of the regulatory program
and is capable of being corrected and compliance is achieved within
the time prescribed.
Self Disclosure Rule NJAC 7:33
Pursuant to Departmental policy which was proposed, but
not adopted as a rule at N.J.A.C. 7:33-1 et seq. (35 N.J.R.
3737, August 18, 2003) a regulated entity may be eligible
for a 75 to 100 percent penalty reduction for violations that
it discovers, discloses and corrects.
• Self Disclosure Report http://www.nj.gov/dep/enforcement/audit%20-%20submittal%20form.pdf
http://www.nj.gov/dep/enforcement/self-disclosure.htm
Questions ?
Diane Alexander
Maraziti, Falcon & Healey, LLP
150 John F. Kennedy Parkway
Short Hills, New Jersey 07078
(973) 912-6811
[email protected]
Thank You
New Jersey State Bar Association Annual Convention
Fundamentals of Municipal Environmental Law
May 14, 2014
By: Joanne Vos
I.
A.
Establishing Liability
New Jersey Spill Compensation & Control Act: N.J.S.A. 58:10-23.11, et seq.
The Spill Act establishes liability of a person who has discharged a hazardous
substance or “is in any way responsible” for the discharge of a hazardous substance (N.J.S.A.
58:10-23.11g); liability is joint and several amongst those parties that are in any way responsible;
pursuant to N.J.A.C. 7:1E-1.6, persons responsible for a discharge may include:
● any person whose act or omission results or has resulted in a discharge;
● each owner or operator of any facility, vehicle or vessel from which a
discharge has occurred;
● any person who owns or controls any hazardous substance which is discharged;
● any person who has directly or indirectly caused a discharge;
● any person who has allowed a discharge to occur; or
● any person who brokers, generates or transports the hazardous substance
discharged.
B.
Potential Defenses to Liability in Certain Circumstances
1.
Immunity: N.J.S.A. 58:10-23.11g(d)(4): acquisition by a public entity
through bankruptcy, tax delinquency, abandonment, escheat, eminent domain, condemnation, or
for the purpose of promoting redevelopment, etc.
a)
Exceptions to Immunity
i.
{127962.DOCX.1}
Responsible Party for the Discharge
ii.
2.
Acquired During Remediation in a Timely Manner
Innocent Purchaser: N.J.S.A. 58:10-23.11g(d)
Buyer must establish the following four (4) factors by a preponderance of
the evidence:
(1) the person acquired the real property after the discharge of that
hazardous substance at the real property;
(2) (a) at the time the person acquired the real property, the person did not
know and had no reason to know* that any hazardous substance had been discharged at the real
property, or (b) the person acquired the real property by devise or succession;
(3) the person did not discharge the hazardous substance, is not in any way
responsible for the hazardous substance, and is not a corporate successor to the discharger or to
any person in any way responsible for the hazardous substance or to anyone liable for cleanup
and removal costs pursuant to this section; and
(4) the person gave notice of the discharge to the department upon actual
discovery of that discharge.
* What does it mean to “not know and have no reason to know?”
Buyer must have completed due diligence by conducting a Preliminary
Assessment and Site Investigation, if necessary, at the time of acquisition; Buyer must prepare a
Preliminary Assessment form and any related reporting, as necessary.
II.
Site Remediation in a Brave New World: Site Remediation Reform Act
N.J.S.A. 58:10C-1, et. seq.
A.
Licensed Site Remediation Professional Program
1.
Controversy/Pros/Cons
2.
Other Notable Changes Brought About by SRRA
a)
Affirmative Obligation to Remediate: N.J.S.A. 58:10B-1.3
(Amendment to Brownfields Act) places an affirmative obligation on Responsible Parties to
remediate.
{127962.DOCX.1}
b)
Mandatory and Regulatory Timeframes: N.J.A.C. 7:26C-1, et seq.
sets certain milestones which must be completed within certain timeframes; failure to comply
may result in direct oversight.
Notable Timeframes
Notify DEP of a Discharge: within 15 minutes of discovery: 1-800-WARN-DEP;
Retain LSRP: upon discovery;
Submit Written Notification: within 14 days of discovery;
Submit LSRP Retention Form: within 45 days of discovery or initiation of remediation;
Public Notification & Outreach: 14 days prior to initiation of field activities; requires posting of
a sign at the site with certain details regarding the remediation; there may be enhanced
requirements where contamination is migrating off site; see N.J.A.C. 7:26C-1.7;
Receptor Evaluation: within 1 year of initiation of remediation;
Conduct Well Search: within 90 days after detection of groundwater contamination;
Conduct Sampling of Nearby Potable Wells: within 120 days after detection of groundwater
contamination; if contamination is detected in a potable well, requirements for IECs apply;
Updated Well Search: every 2 years after initial detection of groundwater contamination;
Vapor Intrusion Receptor Evaluation: within 60 days after determination that VI investigation is
triggered;
Conduct Vapor Intrusion Sampling: within 150 days after determination that VI investigation is
triggered; see Vapor Intrusion Guidelines 1;
Submit Remedial Action Workplan: 60 days prior to implementation of remedial action.
c)
Direct Oversight: Failure to comply with a timeframe may result in DEP taking
direct oversight; DEP has discretion to take direct oversight but in some circumstances, DEP is
required to take direct oversight; see N.J.A.C. 7:26C-14.1.
Direct oversight involves the following additional requirements:
● a feasibility study must be performed and submitted to the DEP for approval;
● the DEP, not the remediating party, will select the remedy for the site;
● the party responsible for the remediation shall establish a remediation trust fund
in the amount of the estimated cost of the remediation;
● any disbursement from the remediation trust fund must be approved by the
{127962.DOCX.1}
DEP; and
● the person responsible for conducting the remediation must implement a public
participation plan, which must be pre-approved by the DEP, to solicit public comments from the
surrounding community regarding the remediation of the site.
Direct oversight by DEP is mandatory where:
● the person responsible for conducting the remediation has a history of
noncompliance which includes the issuance of two (2) enforcement actions after the date of
enactment of the law;
● where the person responsible for conducting the remediation has failed to meet
a mandatory remediation timeframe; or
● where the person responsible for conducting the remediation has failed to
complete the remedial investigation of the entire contaminated site ten (10) years after the
discovery of a discharge at the site and has failed to complete the remedial investigation of the
entire contaminated site within five (5) years after the date of enactment of the law.
d)
Presumptive Remedies: LSRP Program also brought about “Presumptive
Remedies” which are remedial actions/minimum standards which must be implemented for any
remediation which was (1) initiated on or after May 7, 2010; and (2) involves either new
construction of or a change in use of a prior use to a residence, a school, or child care center;
see N.J.A.C. 7:26E-5.3. In those instances, the Remediating Party must remediate to an
“unrestricted use” standard OR have an alternative remedy approved by DEP.
e)
Remedial Action Permits, Biennial Certification Compliance and Financial
Assurance
Remedial Action Permit: Wherever an institutional or engineering control is
implemented as part of a remediation, the Remediating Party must obtain a Remedial Action
Permit (“RAP”) for the life of the control (default is 30 years); see N.J.A.C. 7:26C-7.5.
Biennial Certification Compliance: Wherever a RAP must be obtained, the
Permittee must submit a Remedial Action Protectiveness Certification biennially to confirm that
the control is still protective of human health and the environment; an LSRP must sign off on the
certification, so there are costs to comply, in addition to the RAP costs; see N.J.A.C. 7:26C7.7(b).
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a0313-11.opn.html
« Citation
Data
Original Wordprocessor Version
(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0313-11T3
M
APPROVED FOR PUBLICATION
August 23, 2013
APPELLATE DIVISION
ORRISTOWN ASSOCIATES,
Plaintiff-Appellant/
Cross-Respondent,
v.
GRANT OIL COMPANY, ABLE
ENERGY, PARSIPPANY FUEL
OIL, EDWARD HSI and AMY HSI
and SPARTAN OIL COMPANY,
Defendants-Respondents,
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and
PETRO INC., JOHNSON OIL COMPANY,
MEENAN OIL COMPANY d/b/a REGIONAL
OIL COMPANY,
Defendant-Respondents/
Cross-Appellants,
and
GRANT OIL COMPANY, ABLE
ENERGY, INC., PARSIPPANY FUEL
OIL CO., and PETRO INC.,
Defendants/Third Party
Plaintiffs-Respondents,
v.
BYUNG LEE and MULTI CLEANERS,
INC. d/b/a PLAZA CLEANERS,
EDWARD HSI and AMY HSI, JOHNSON
OIL COMPANY, MEENAN OIL COMPANY
d/b/a REGION OIL as successor in
interest to Johnson Oil Company
and SPARTAN OIL COMPANY,
Third-Party Defendants/
Respondents.
_________________________________________
August 23, 2013
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Argued April 15, 2013 – Decided
Before Judges Graves, Ashrafi and
Guadagno.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No.
L-2071-06.
Steven T. Singer argued the cause for
appellant/cross-respondent.
Richard J. Isolde argued the cause for
respondents/cross-appellants Petro, Inc.,
Johnson Oil Company and Meenan Oil Co.
(Gaul, Baratta & Rosello, L.L.C., attorneys; Mr.
Isolde, on the brief).
David W. Field argued the cause for
respondents Edward Hsi and Amy Hsi
(Lowenstein Sandler, P.C., attorneys; Mr. Field,
on the brief).
Kristin V. Hayes argued the cause for
respondent Spartan Oil Company (Wiley
Malehorn Sirota & Raynes, attorneys; Ms.
Hayes, of counsel and on the brief; Carolyn
Conway Duff, on the brief).
The opinion of the court was delivered by
ASHRAFI, J.A.D.
Plaintiff Morristown Associates, the owner of a shopping center, brought
claims against several heating oil companies and the prior owners of a dry
cleaning business for contribution to plaintiff's environmental remediation
costs and for other damages caused by contamination of its property. It now
appeals from two orders of the Law Division barring testimony from its liability
expert and granting summary judgment or partial summary judgment to
several defendants on statute of limitations grounds. The orders are appealable
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as of right under Rule 2:2-3(a) because all remaining claims have been resolved
by stipulations of the parties or dismissed by the trial court.
Contrary to plaintiff's arguments, we hold that the general six-year
statute of limitations for damage to property, N.J.S.A. 2A:14-1, applies to a
private claim for contribution pursuant to the New Jersey Spill Compensation
and Control Act (Spill Act), N.J.S.A. 58:10-23.11 to -23.24. The discovery rule of
Lopez v. Swyer, 62 N.J. 267 (1973), may extend the time limitation based on
when "the injured party discovers, or by an exercise of reasonable diligence and
intelligence should have discovered that he may have a basis for an actionable
claim." Id. at 272.
In this case, the trial court did not err in concluding that the discovery
rule did not warrant permitting plaintiff to pursue claims that arose outside the
six-year limitation period. We affirm the trial court's summary judgment
orders. We need not and do not address other issues raised on appeal.
I.
On July 31, 2006, plaintiff filed a three-count complaint against defendant
Grant Oil Company alleging environmental damage to plaintiff's property. In
three amended complaints filed over the next several years, plaintiff added as
defendants six other heating oil companies that had allegedly delivered oil to
the site and also the prior owners of a dry cleaning business that leased space in
plaintiff's shopping center. Defendants filed cross-claims against one another
and also third-party claims against the current owner of the dry cleaning
business.
Plaintiff alleged that the fill pipes to an underground storage tank (UST)
located under the leasehold of the dry cleaning business leaked oil into the soil
and groundwater from about 1988 to 2003. It alleged that the oil companies
and the prior owners of the business failed to inspect the pipes and the UST to
ensure they were not leaking and to make repairs. Plaintiff brought claims
under the Spill Act (count one), the New Jersey Environmental Rights Act,
N.J.S.A. 2A:35A-1 to -14 (count two), and common law negligence (count
three).
Through a series of motions brought by defendants, the trial court barred
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proposed testimony by plaintiff's oil delivery expert, Robert Walters, and it also
granted summary judgments limiting plaintiff's claims to events of
contamination that occurred within six years of the date of its complaint.
Subsequently, plaintiff resolved or voluntarily dismissed all such claims that
arose during the six-year limitation period and filed this appeal from the trial
court's rulings on summary judgment and the expert testimony.
Viewed most favorably to plaintiff, R. 4:46-2(c); Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995), the summary judgment record
established the following relevant facts.
In 1979, plaintiff purchased a small shopping center called Morristown
Plaza, located on Lafayette Avenue in Morristown. At that time, one of the
tenants was a dry cleaning business named Plaza Cleaners, then owned by
Robert Herring. Defendants Edward and Amy Hsi became the owners of the dry
cleaning business from 1985 to 1998, and third-party defendant Byung Lee
became the owner from 1998 to the time of this litigation.
In 1977 or 1978, before plaintiff purchased the property, Herring had
installed a UST to hold heating oil for a steam boiler used in the dry cleaning
business. The tank was located under a concrete slab floor and was inaccessible.
The fill and vent lines for the UST protruded through an exterior wall into an
alleyway. Pictures of the outside wall show that extensive staining had occurred
where the fill and vent pipes protruded.
Plaintiff asserted it first became aware of the Plaza Cleaners UST in
2003. In August of that year, plaintiff was informed about soil and groundwater
contamination by an adjoining property owner that discovered oil in a
monitoring well, and Plaza Cleaners was identified as the source. Before then,
according to plaintiff, it was unaware that any UST existed at Plaza Cleaners.
Defendant heating oil companies allegedly delivered oil to Plaza Cleaners at
various times from 1988 until November 2003, after which the current owner
converted the system to gas.
1
According to plaintiff's metallurgical expert, Peter Elliot, the
contamination was caused by corroded fill pipes. Elliot stated in a 2007 report
that the fill and vent lines should have functioned for more than thirty years,
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but they "first failed by external corrosion processes after about 10 years
(around 1988) due to synergistic effects of soil and aqueous (atmospheric)
corrosion that was unique to the installation." When the UST and pipes were
removed in 2004, the UST was intact but the pipes had holes as big as two
inches in diameter. According to Elliot, the corrosion occurred because of
improper design of air conditioning venting directly above the fill pipes, which
caused rainwater and moisture, "acidic waters," to accumulate around the pipes
and cause extensive corrosion. Experts engaged by defendants agreed with
Elliot that the fill pipes were corroded and had holes, causing oil to leak directly
into the ground before it reached the UST.
On several occasions between 1999 and 2002, a defendant oil company
delivered more than 1000 gallons of oil although the UST had a capacity of only
1000 gallons. Plaintiff's liability expert, Walters, stated in his report that the
current owner of the dry cleaning business told one or more defendant oil
companies that the tank only had a capacity of 1000 gallons, but the oil
companies did not attempt to verify the size of the tank, and their drivers did
not inspect the tank or the piping. In his report, Walters estimated that between
9,400 and 14,670 gallons of heating oil were spilled from 1988 to 2003.
Pertinent to application of the Lopez discovery rule, several witnesses
testified at a hearing before the trial judge about their knowledge of possible oil
leaks and the existence of the Plaza Cleaners UST. Frank Cosentino, a former
vice president of the management company that operated the shopping center
from 1988 to 1995 and again starting in 2002, testified that he never saw
anything to indicate there was a UST or any environmental problems at Plaza
Cleaners. He did not remember seeing ugly stains on the alleyway wall. He was
sure he had seen the pipes coming out of the wall at some point, but he did not
remember thinking about where they went or considering that they had any
significance. The first time Cosentino became aware of a possible
environmental problem was August 28, 2003, when the company next to the
cleaners identified some oil in its monitoring well.
Documents revealed that in 1999, a different UST located at a
supermarket in plaintiff's shopping center had leaked and required
remediation. Plaintiff's property management company at that time, a different
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company from Cosentino's, handled the problem and hired a contractor to
remove a 1000-gallon UST. Samuel Ekstein, the owner of that management
company, testified in deposition that he discussed the 1999 tank removal with a
representative of plaintiff, Paul Petigrow. Ekstein also knew there was a tank at
Plaza Cleaners.
Cosentino, however, testified that his company had acquired the file of
Ekstein's management company for the intervening years of 1995 to 2002, but
he did not see anything in the file about a problem with another UST in 1999.
Nor did he see anything from the Department of Environmental Protection
(DEP) regarding environmental problems at the property.
Petigrow testified he first became aware of the UST at Plaza Cleaners in 2003.
Nobody from either property management company mentioned it before that
time. During plaintiff's ownership of the shopping center, an environmental
audit was completed in 1993 by an engineering company as part of refinancing
a mortgage. According to Petigrow, the engineering company found no USTs on
the site. Petigrow testified that he had no knowledge of how the tank at Plaza
Cleaners was installed on the property. He did not learn in 1999 that there was
a UST elsewhere in the shopping center and was not aware that the DEP issued
a permit to Ekstein's management company to remove the other UST.
II.
Defendants filed motions for summary judgment on several grounds,
including that the statute of limitations barred any claims brought by plaintiff
for damage that had occurred more than six years before the filing of its
complaint in July 2006. Plaintiff opposed the motions, arguing among other
things, that no statute of limitations applied to its claims for private
contribution under the Spill Act, N.J.S.A. 58:10-23.11f. The trial court disagreed
with plaintiff and ruled that the six-year limitation period of N.J.S.A. 2A:14-1
applies to plaintiff's claims. The court also ruled that plaintiff should have
discovered its claims no later than 1999, when the other leaking UST was
discovered on the property, and that plaintiff did not demonstrate an equitable
basis for easing application of the statute of limitations under the Lopez
discovery rule.
On appeal, plaintiff contends the trial court erred because the Spill Act itself
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does not contain a statute of limitations and the general six-year limitations
period for property damage under N.J.S.A. 2A:14-1 does not apply to plaintiff's
2
Spill Act contribution claims. Plaintiff argues that its statutory claim for
contribution under N.J.S.A. 58:10-23.11f(a)(2) is based on defendants' strict
liability for the contamination and that the Legislature meant the contribution
statute to be available no matter when the conduct of the responsible parties
occurred. More specifically, plaintiff argues that the only defenses available to a
private Spill Act claim for contribution are the statutory defenses referenced in
N.J.S.A. 58:10-23.11g(d) and that a statute of limitations is not one of those
defenses.
Whether a statute of limitations applies under the Spill Act is a matter
of statutory interpretation and therefore a legal question subject to our plenary
review. See McGovern v. Rutgers, the State Univ. of N.J., 211 N.J. 94, 107-08
(2012); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995); see also Estate of Hainthaler v. Zurich Commercial Ins., 387 N.J.
Super. 318, 325 (App. Div.) (a judge rather than a jury decides whether a
particular cause of action is barred by a statute of limitations), certif. denied,
188 N.J. 577 (2006).
The only New Jersey state court decision brought to our attention that
addresses the disputed question is an unpublished decision issued by this court
in 1999, which held that no statute of limitations applies. Our unpublished
opinions, however, do not constitute precedent. R. 1:36-3.
In our published decision in Pitney Bowes v. Baker Industries, Inc., 277
N.J. Super. 484, 488-89 (App. Div. 1994), we held that N.J.S.A. 2A:14-1.1,
which is a statute of repose rather than a statute of limitations, did not apply to
bar an action for contribution in an environmental contamination case. We
stated that the Spill Act "casts a broad net encompassing 'all other dischargers
and persons in any way responsible for a discharged hazardous substance. . . .'"
Id. at 487-88 (quoting N.J.S.A. 58:10-23.11f(a)(2)). We stated that the Spill Act
"strictly limits the defenses available to the contribution defendant to those set
forth by N.J.S.A. 58:10-23.11g(d)," and it includes "no provision of any defense
available either to a direct or a contribution defendant based on the passage of
time." Id. at 488. We concluded: "It is therefore self-evident that the statutory
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purpose and policy would be defeated by excluding from contribution liability
the primarily responsible party because of the general and prior enacted statute
of repose." Ibid. Five years later, in the unpublished opinion we have
referenced, we applied the reasoning of Pitney Bowes with "full force, if not a
fortiori, to a statute of limitations," that is, to N.J.S.A. 2A:14-1.
Federal courts, however, have taken a different approach to the question. In
Reichhold, Inc. v. United States Metals Refining Co., 655 F. Supp.2d 400, 44647 (D.N.J. 2009), the United States District Court stated:
The Spill Act does not contain a statute of
limitations for private contribution actions. In
these circumstances, courts are directed to select
a limitations period from among those periods
applicable to actions seeking similar relief at
common law. N.J. Stat. Ann. 2A:14-1 provides a
six year statute of limitations for trespass to real
property and tortious injury to real property.
"This six year statute of limitations is applicable
to environmental tort actions at common law,
and more specifically to environmental actions
based on strict liability." The six year statute of
limitations will be applied to [plaintiff]'s claims
under the Spill Act.
[Citing New W. Urban Renewal Co. v.
Westinghouse Elec. Corp., 909 F. Supp. 219, 228
(D.N.J. 1995); SC Holdings, Inc. v. A.A.A. Realty
Co., 935 F. Supp. 1354, 1367 (D.N.J. 1996);
other citations omitted.]
Applying a statute of limitations to Spill Act claims for contribution is
consistent with comparable remedies under federal law. A provision of the
Comprehensive Environmental Response, Compensation, and Liability Act
3
(CERCLA) , 42 U.S.C.A. § 9613(g)(2)(B), establishes a six-year limitations
period for actions to recover costs expended in a "remedial action" to clean up a
hazardous waste site. See California v. Neville Chem. Co., 358 F.3d 661, 665-67
(9th Cir.), cert. denied, 543 U.S. 869, 125 S. Ct. 303, 160 L. Ed.2d 116 (2004).
Another provision of CERCLA establishes a three-year limitations period for a
contribution action following a judgment or administrative order fixing a
private party's liability. 42 U.S.C.A. § 9613(g)(3).
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Defendants argue that the federal courts have reached the better
decision in interpreting New Jersey's Spill Act to permit a statute of limitations
defense. Plaintiff asserts that our own decisions are correct and that applying a
statute of limitations to Spill Act contribution claims would be detrimental to
the public interest in environmental cleanup and remediation.
We do not view the reasoning of Pitney Bowes to be controlling with respect
to a statute of limitations. A statute of repose is strictly applied to bar a claim
without any regard to when the claimant discovered or could reasonably have
discovered the harm. That is, the Lopez discovery rule is not available to relax
application of a statute of repose. R.A.C. v. P.J.S., Jr., 192 N.J. 81, 98 (2007). In
contrast, the discovery rule is applicable to a statute of limitations, and it
"mitigate[s] the harsh and unjust result that would follow by barring the door of
the courthouse to a blameless, injured person who is unaware that he has
suffered an injury." Ibid. (citing Lopez, supra, 62 N.J. at 273-74).
Applying a statute of limitations to a claim for private contribution
under the Spill Act does not prevent a diligent plaintiff from recovering the
costs of cleanup and remediation from other responsible parties, as plaintiff
contends. It merely requires that a claimant file a timely action after it
discovered or should have discovered the grounds for its claim. Unlike the
statute of repose, the statute of limitations is not "patently repugnant or
inconsistent" with the purposes of the Spill Act. See Pitney Bowes, supra, 277
N.J. Super. at 489 (quoting City of Camden v. Byrne, 82 N.J. 133, 154 (1980)).
The time limitations provided in our general statutes of limitations have been
applied to a variety of statutory claims that do not themselves contain express
periods of limitation. See Klump v. Borough of Avalon, 202 N.J. 390, 409
(2010) (N.J.S.A. 2A:14-1 applies to a claim for inverse condemnation alleging
violation of the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 to -50); Montells
v. Haynes, 133 N.J. 282, 291-95 (1993) (general two-year statute of limitations
for personal injury, N.J.S.A. 2A:14-2, applies to a claim under the Law Against
Discrimination, N.J.S.A. 10:5-1 to -49); Bustamante v. Borough of Paramus,
413 N.J. Super. 276, 298 (App. Div. 2010) (N.J.S.A. 2A:14-2 applies to a claim
under 42 U.S.C.A. § 1983 for violation of constitutional rights); D'Angelo v.
Miller Yacht Sales, 261 N.J. Super. 683, 688 (App. Div. 1993) (six-year
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limitation period of N.J.S.A. 2A:14-1 applies to a Consumer Fraud Claim
pursuant to N.J.S.A. 56:8-1 to -60). In Troise v. Extel Communications, Inc.,
345 N.J. Super. 231, 236 (App. Div. 2001) aff'd o.b., 174 N.J. 375 (2002), a case
brought under the Prevailing Wage Act, N.J.S.A. 34:11-56.40, we stated: "When
the Legislature creates a statutory cause of action without including a
limitations provision, a court will apply the general limitations provision which
governs that category of claim."
N.J.S.A. 2A:14-1 establishes a six-year limitations period for "[e]very
action at law for trespass to real property, for any tortious injury to real or
personal property . . . [and] for any tortious injury to the rights of another not
stated in sections 2A:14-2 and 2A:14-3 of this Title . . . ." (Emphasis added).
When the Legislature amended the Spill Act to provide for a private right of
contribution, see L. 1991, c. 372, § 1, it is presumed to have been aware of the
application of the general statute of limitations to causes of action in our
courts. Nothing in the Spill Act states that a limitations period shall not apply to
such claims.
In Montells, supra, 133 N.J. at 292-93, the Court stated:
Statutes of limitations are essentially
equitable in nature, promoting the timely and
efficient litigation of claims. They "spare courts
from litigating stale claims," penalize delay, and
provide repose. As the United States Supreme
Court has written: "Just determinations of fact
cannot be made when, because of the passage of
time, the memories of witnesses have faded or
evidence is lost. In compelling circumstances,
even wrongdoers are entitled to assume that
their sins may be forgotten."
[Quoting Farrell v. Votator Div., 62 N.J. 111,
115 (1973); Wilson v. Garcia, 471 U.S. 261, 271,
105 S. Ct. 1938, 1944, 85 L. Ed.2d 254, 263
(1985); citations omitted.]
The trial court correctly held that a six-year statute of limitations applies to
plaintiff's Spill Act and other claims.
III.
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Plaintiff argues alternatively that it was entitled to the benefit of the discovery
rule to permit its causes of action for contribution and negligence. Unlike the
purely legal question of whether a statute of limitations applies to Spill Act
claims, determining the date on which plaintiff's claims accrued required the
trial court to make factual and credibility findings. We defer to those findings as
long as they are supported by sufficient credible evidence. See State v. Locurto,
157 N.J. 463, 474 (1999); Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 145
(1988); Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 432 (1987).
The discovery rule provides an equitable basis to "avoid the harsh effects"
that may result from "a mechanical applica-tion of [the] statute of limitations."
Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 281 (2005).
Nevertheless,
[i]t is not every belated discovery that will
justify an application of the rule lifting the bar of
the limitations statute. The interplay of the
conflicting interests of the competing parties
must be considered. The decision requires more
than a simple factual determination; it should be
made by a judge and by a judge conscious of the
equitable nature of the issue before him [or her].
[Ibid. (quoting Lopez, supra, 62 N.J. at 275).]
Plaintiff contends its causes of action accrued no earlier than August
2003 when its property management company, through Cosentino, and its own
representative, Petigrow, learned of possible contamination caused by a UST
located at Plaza Cleaners. Citing Amland Properties v. Aluminum Company of
America, 808 F. Supp. 1187, 1191 (D.N.J. 1992), aff'd mem., 31 F.3d 1170 (3d
Cir. 1994), plaintiff contends that the discovery rule is particularly appropriate
for environmental contamination cases because of their scope and complexity.
Plaintiff cites federal court decisions for the proposition that a plaintiff's cause
of action in an environmental case accrues when it is presented with objective
evidence, such as sample results or notice from an environmental authority, of
the contamination that is the subject matter of its claim. See Allied Corp. v.
Frola, 730 F. Supp. 626, 629, 632 (D.N.J. 1990). In New West Urban Renewal
Co. v. Viacom, Inc., 230 F. Supp.2d 568, 573 (D.N.J. 2002), however, the court
stated that tolling under the discovery rule does not depend on whether actual
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sampling results have been taken, but on whether enough indications of
environmental contamination were present to put the plaintiff on reasonable
notice of a need to investigate further.
Here, the trial court concluded that plaintiff should reasonably have
discovered the contamination at Plaza Cleaners no later than 1999 when a UST
had leaked at the supermarket on its property and had to be removed under
DEP oversight. Cosentino and Petigrow claimed they did not know about the
leaking supermarket UST and its removal. At best, their lack of knowledge
suggests a lack of diligence in attending to the property. Ekstein, the property
manager for the 1995 to 2002 time period, arranged for removal of the other
UST and remediation of the property. He also knew there was an oil tank at
Plaza Cleaners.
Plaintiff contends that Diamond v. New Jersey Bell Telephone Co., 51 N.J.
594 (1968), is factually on point and supports its discovery rule position. In
Diamond, the Court applied the discovery rule to a defective condition located
underground. Id. at 600. The Court stated there was no suggestion that the
plaintiffs, in the exercise of ordinary supervision over their property, could or
should have discovered their damages. Id. at 601.
This case is different. When the other UST was removed, plaintiff was
put on notice that the 1993 environmental report was inaccurate because that
investigation had failed to discover any UST's on the property. Plaintiff should
have exercised due diligence and supervision over its property to investigate
whether any other UST's existed in addition to the one that was removed.
Cosentino admitted seeing the fill and vent pipes that were clearly visible
outside the premises of Plaza Cleaners. Oil deliveries to the fill pipes were not
done secretly. Cosentino should have made inquiry, even before 1999, about the
use of the fill pipes and their condition. Having been put on notice of potential
contamination at the property, plaintiff should have investigated whether the
Plaza Cleaners' system was functioning properly. Further inquiry should have
revealed the overfills of the Plaza Cleaners UST that had occurred since at least
1999, thus providing evidence of a faulty system.
In its ruling on the Lopez issue, the trial court stated:
A landowner has a fundamental duty
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historically and settled in our law to make
reasonable observations of the conditions on its
property and to take reasonable care to insure
that dangers do not exist on that property.
. . . Anyone with any degree of
reasonable knowledge must have known that
there was an oil tank in the vicinity of Plaza
Cleaners. There was an exterior fill pipe on the
wall which was readily visible. There was a vent
pipe in the same vicinity which was reasonably
visible.
The trial court estimated that numerous oil deliveries, perhaps
hundreds, must have been made to Plaza Cleaners' fill pipe between 1979 and
2003, and it inferred that plaintiff should have become cognizant of them at
some point. The court concluded:
Remembering that the discovery rule is
equitable in nature, it essentially is intended to
relieve the harshness of the rule where the
circumstances warrant or a party, through no
fault of that party's own, is unable to know, is
unable to take reasonable actions promptly to
bring appropriate litigation. . . . Here, the
circumstances hardly justify it.
We have no reason on this record to disagree with the trial court's findings
and conclusion.
IV.
Having determined that the trial court correctly limited plaintiff's claims to
the six-year period preceding the filing of its complaint, and those claims
having been subsequently dismissed, we need not decide any of the other issues
plaintiff has raised on appeal or defendants have raised on their cross-appeals.
Affirmed.
1 Two of the oil company defendants allege they in fact never delivered oil to
Plaza Cleaners. They have cross-appealed from the trial court's denial of
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summary judgment on the ground of insufficient evidence of their involvement
with contamination at the site.
2 Plaintiff has not appealed from an October 6, 2009 order dismissing the
second count of its complaint, which stated claims under the New Jersey
Environmental Rights Act. It has also not argued that the six-year statute of
limitations does not apply to its common law negligence claims brought in the
third count of its complaint.
3 In N.J. Department of Environmental Protection v. Dimant, 212 N.J. 153
(2012), the Court discussed some of the similarities and differences between
CERCLA and the Spill Act.
This archive is a service of Rutgers School of Law - Camden.
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George M. Morris
Counsel
Mount Laurel, New Jersey
856-810-5855
[email protected]
Professional Experience
Mr. Morris concentrates his practice in the areas of municipal and
government relations and education. He presently serves as township
solicitor for Southampton Township, board solicitor for Franklin
Township Fire District #3 and special counsel for Lumberton
Township.
Mr. Morris has extensive experience with handling complex matters
concerning open space initiatives, acquisition, and regulatory
oversight helping clients work through administrative hurdles to
protect and preserve open space, recreation, farmland and historic
locations.
Before earning his law degree, Mr. Morris served as a municipal
manager and as a member of the municipal utilities authority. Mr.
Morris also served as a legislative staff member in the United States
House of Representatives.
With Mr. Morris’ extensive practical and legal background in
municipal government he is frequently requested to intervene on
complex bidding challenges and contract reviews involving
government entities. He has represented both public and private
clients in litigation involving public bidding and contract laws
including the New Jersey Local Public Contracts Law and the Public
Schools Contract Law.
Mr. Morris is a frequent lecturer on Open Public Meetings Act and
Open Public Records Act issues.
Representative Matters
 Represented Southampton Township with respect to seeking
invalidation of a state unfunded mandate concerning
municipal payment for state rural police service. Mr. Morris
was successful in helping convince the New Jersey Council on
Local Mandates to void a section of the state budget, which
would have resulted in a fiscal crisis for most rural
municipalities in New Jersey.
Practice Areas
 Municipal and Government
 Construction
 Defense Litigation
 Labor and Employment
 Public Schools and Education
Education
 Rutgers University School of Law
(J.D., 2005)
 Rutgers, Graduate School of Policy
and Public Administration (M.P.A.,
Public Administration, 1998)
 Rutgers, the State University of
New Jersey (B.A., Political Science,
1993)
Admissions
 New Jersey
 Pennsylvania
 U.S. District Court, District of New
Jersey
 U.S. Court of Appeals, Third
Circuit
Professional Affiliations
 Burlington County Bar Association
 New Jersey Institute of Local
Government Attorneys
 New Jersey State Bar Association
(Chair, Local Government Law
Section)
 New Jersey State Municipal
Prosecutors’ Association
 Burlington County Chamber of
Commerce, Chair of Government
Affairs Committee; Member,
Military Relations Committee
Community Involvement
 Civil Air Patrol, U.S. Air Force
Auxiliary, Capt., Wing Legal
Officer, Squadron Deputy
Commander
Representative Matters (continued)
 Obtained State House Commission approval for complex diversion application to remove
restricted lands from state encumbrance and allow for affordable housing development and
preservation of historic property.
Personal Interests
Mr. Morris was born in Lorain, Ohio, and currently resides in Lumberton, New Jersey, with his wife,
Chrissie, and three children, Alexander, Abigail and Anastasia.
Wells, Jaworski & Liebman, LLP - Attorneys at Law, Paramus, NJ - Offices in Paramus, New York City, NY, Morristown, Lyndhurst, Tuckerton, New Jersey and Bristol, VT
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12 North Route 17,
P.O. Box 1827
Paramus, New Jersey 07653-1827
Phone: (201)587-0888
Fax: (201)587-8845
Email: [email protected]
Kenneth A. Porro
Partner
(201) 587-0888 Ext. 6404
AREAS OF PRACTICE
Civil Litigation
Education Law
Land Use and Title Disputes Municipal Tax Appeals
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SATELLITE OFFICES:
[email protected]
New York City Law Office
501 Seminary Row
Riparian Grants
Shareholder Disputes
EDUCATION
J.D. University of Baltimore, 1987
New York, NY 10027
(212) 222-0798
Lyndhurst, New Jersey Law Office
10 Stuyvesant Ave
Lyndhurst, New Jersey 07071
(201) 531-8989
Ken joined WJ&L in May 2005 as the lead attorney in our litigation
department. Ken has over twenty-five years of litigation experience
practicing law throughout the State of New Jersey.
Tuckerton, New Jersey Law Office
800 S. Green Street,
B.A., Loyola College,1984
Member Columbia University,
New York, New York
University Seminar Series
Tuckerton, New Jersey 08087
(609) 296-6666
Bristol, Vermont Law Office
Legal
Social
Environmental
Issues (1987-2002)
Officials
BAR ADMISSIONS
Association;
Lyndhurst
Board
of
Education;
Omega Child
Development Center; Industrial Steel Structures, LLC; Lyndhurst Little
League Inc. and Indian Hills Boys Soccer Boosters Assoc. Ken is the author
of “Redevelopment through Condemnation;” “The Effect of Government
Restrictions on Valuation of Property;” and “Defending Contempt Penalties
25 D Main Street
Bristol, VT 05443
Phone: (802)453-5765
Fax: (802) 329-2100
on
Ken is a graduate of Loyola College, Baltimore, Maryland and University of
Baltimore School of Law. Ken is General Corporate Counsel to the
Meadowlands Municipal Mayors Committee; Meadowlands Construction
New Jersey, State & Federal Courts, 1988
United States Court of Appeals
for the Third Circuit, 2008
Under the Clean Water Act.” His writings further reflect his established
knowledge in land use and valuation disputes.
Click here for Directions
Ken is a member of the Bergen County Bar Association, the New Jersey Bar
Video Links
Association, (Trustee Secretary, to Local Government Section), and the
American Inns of Court Foundation. Ken has received the honor of being
Battle Over Oceanfront Land
The battle over
ocean front owners'
constitutional & civil
rights verse public
taking of their
private lands for sand dune
replenishment projects have drawn
clear lines in the sand. Coverage
with Ken Porro interview on:
NJ TV News NJ Today CBS Story
recognized as a “New Jersey Super Lawyer” by New Jersey Magazine in
2005-2007 and 2009-2013. He is also a past Condemnation Commission
and lecturer for the New Jersey Bar Association on Adverse Possession
and Municipal Tax Appeals.
AFFILIATIONS
Trustee Secretary, New Jersey
Bar Association - - Local Government Section
The American Inns of
Court Foundation
Bergen County Bar Association
Sigma
Delta
Kappa
Law
Fraternity
Published Opinions:
Milgram v. Ginaldi, 208 WL 2726727 (App. Div. July 15,2008), Docket No. A1906-06T2 (unpublished decision), cert. denied, 197 N.J. 259 (2008) and
SPECIAL INTERESTS
Wyckoff Rec. Soccer Coach
Ehrlich v. City of Passaic, 15 N.J. Tax 561 (1995).
Skiing
Christian Health Care Center
(CHCC) in
Wyckoff proudly
honored David F.
Bolger and the
Bolger
Foundation for their legacy of
service, leadership, and
http://www.wellslaw.com/porro.html[4/17/2014 5:35:38 PM]
Golf
Lyndhurst High School Mock
Trial Coach
JOANNE VOS
Partner
(973) 912-6801
[email protected]
Practice Areas:
Environmental Law (Contamination
Compliance/Regulatory/Transactional),
Environmental Litigation
and
Areas of Emphasis:
Joanne focuses her practice in environmental
law, including compliance, regulatory and
transactional matters as well as environmental
litigation.
She routinely counsels clients
regarding environmental liability in connection
with Real Estate Purchase and Sale Agreements,
Lease Agreements, Asset Purchase Agreements
and Access Agreements. She also counsels
clients on various contamination and remediation issues including
Federal and State due diligence requirements as well as ISRA
She has successfully litigated numerous complex
compliance.
environmental matters involving both private and public entities. She
previously served the Township of North Brunswick as Special
Environmental Counsel. Prior to joining the firm, Joanne practiced
environmental law and litigation at several large law firms in New
Jersey. From 1998 to 1999, she served as Judicial Law Clerk to the
Honorable Stephen E. Mochary, J.S.C., in Essex County.
Bar Admission:
State of New Jersey, January 1999
United States District Court, District of New Jersey, January 1999
Education:
J.D., Seton Hall University School of Law, May 1998
B.A., Montclair State University, May 1995
Professional
Associations:
Member, Environmental Law Section, New Jersey State Bar Association
Past President and Chairman of the Board, New Jersey Defense
Association
Chair, Environmental Law Committee, New Jersey Defense Association
Trustee, Middlesex County Bar Association
Chair/Mentor, Environmental Law Committee, Middlesex County Bar
Association
Member, Environmental Committee, New Jersey Builders Association
Member, Economic Development Association of New Jersey
Member, Sponsorship Committee, Commercial Real Estate Women of
New Jersey
Member/Mentor, New Jersey Women Lawyers Association
Adjunct Professor, Introduction to Civil Litigation, Fairleigh Dickenson
University, Paralegal Studies Program
Publications:
Co-Author, New Jersey Environmental Law Handbook, 8th Ed., April
2014
“Deadline for Completion of Remedial Investigation Extended,” MFH
Legal Update, January 2014
“Statute of Limitations Applies to Spill Act Contribution Claims,” MFH
Legal Update, October 2013
“Deadline Quickly Approaching for Completion of Remedial
Investigation,” New Jersey Law Journal, August 12, 2013 and
Community Builders and Remodelers Association, On Site, October
2013
“Recent Amendment to Local Public Contracts Law: Testing and
Disposal of Contaminated Soil,” MFH Client Alert, February 2013 and
Community Builders and Remodelers Association, On Site, April 2013
“Updates in Environmental Law,” Middlesex County Bar Association,
Advocate, October 2012
“Turning Brownfields into Suncatchers,” MFH Client Alert, October
2012
“New Case Law Impacting Condemnation of Contaminated Property,”
MFH Client Alert, July 2012 and New Jersey Builders Association,
Dimensions, September 2012
“New Waiver Rule Implemented by the New Jersey Department of
Environmental Protection,” MFH Client Alert, September 2012
“Sewer Service Areas: Where Do New Jersey Property Owners
Stand?,” The Cutting Edge, New Jersey Builder’s Association, 2011
“Financing Solar Renewable Energy Projects,” The Cutting Edge, New
Jersey Builders Association, 2011
“In re Passarella: Late Fees,” GRS&D Client Alert, April 2011
“Indoor Air Quality: Basis for Constructive Eviction?,” GRS&D Client
Alert, September, 2010
“Lead-Based Paint Renovation, Repair and Painting Program,”
GRS&D Client Alert, April, 2010
“Status Update: The New Site Remediation Reform Act,” GRS&D
Client Alert, January 2010
“The Residential Development Solar Energy Systems Act,” GRS&D
Client Alert, July 2009
“Franklin Mutual Insurance Company v. Metropolitan Property &
Casualty Insurance Company: Application of Continuous Trigger
Theory,” GRS&D Client Alert, June 2009
“Recent Federal Tax Incentives for Building Green,” GRS&D Client
Alert, June 2009
“Going Green by Building Green,” Exhibit A, Greenbaum, Rowe,
Smith & Davis LLP, January 2009 and New Jersey Municipalities,
November 2009
“Public Outreach for Contaminated Site Cleanups,” GRSD Client
Alert, October 2008
“The Toxic Mold Protection Act of 2008 - September 2008,” GRS&D
Client Alert, September 2008
“DiPaolo v. New Jersey Department of Environmental Protection:
Classification of Freshwater Wetlands based upon the presence of
Threatened or Endangered Species,” GRS&D Client Alert, August
2008
“Permit Extension Act,” GRS&D Client Alert, July 2008
“NJDEP Cannot Waive CAFRA Requirement in Absence of Waiver
Provision,” GRS&D Client Alert, June 2008
“E-Waste Recycling Law,” GRS&D Client Alert, May 2008
“NJDEP's White Papers Stakeholder Process,” GRS&D Client Alert,
April 2008
“Deed Notices Required for Naturally Occurring Arsenic,” GRS&D
Client Alert, March 2008
“Environmental Stewardship Program,” GRS&D Client Alert,
February 2008
“2008 Climate Change Bill Package,” GRS&D Client Alert, January
2008
“Case Summary: Natural Resource Damages,” New Jersey Defense,
Volume 24, Issue 2
“New Notification Requirements Onerous,” New Jersey Law Journal,
November 12, 2007
“From the Diversity Committee,” New Jersey Defense, Volume 24,
Issue 1
“Strides in Diversity," New Jersey Defense, Volume 23, Issue 2
“Individual Facts Dictate Contamination Coverage,” New Jersey Law
Journal, June 26, 2006
“Who Is Responsible? Personal Liability of Corporate Officers," New
Jersey Law Journal, October 24, 2005
Speaking
Engagements:
“So Your Client Wants to Buy Property – What If It’s Contaminated?,”
MFH Seminar, March 2014
“New Redevelopment Tools,” MFH Seminar, October 2013
“Updates in Environmental Law,” Annual New Jersey Defense
Formatted: Font: Not Italic
Association Convention, Poconos, PA, June 2013
“Site Remediation in a Brave New World,” New Jersey Law Journal, In
House Counsel Seminar Services, April 2013
“Private CERCLA Actions: §113 Contribution v. §107 Cost Recovery,”
National Business Institute, February 2013
“Spotting Environmental Issues That Can Impact Your Practice,”
Middlesex County Bar Association, Environmental Law Committee,
November 2012
“Financing Renewable Energy Projects,” Rutgers Continuing
Education Program, January 2012
“Overview of Federal and State Environmental Liability,” Middlesex
County Bar Association, Real Estate Committee, November 2011
“Environmental Trends and Office of Dispute Resolution,” Annual
Atlantic Builder’s Convention, Atlantic City, NJ, April 2011
“Environmental Liability and Bankruptcy,” GRS&D Webinar, April
2011
“Licensed Site Remediation Professional Program and Brownfields,”
Annual Atlantic Builder’s Convention, Atlantic City, NJ, April 2010
“An Overview of Sustainable Jersey’s Municipal Certification
Program,” New Jersey Builder’s Association, Virtual Green Build
Event, January 2010
“Perception is Reality,” Keynote, Annual New Jersey Defense
Association Convention, Hershey, PA, June 2009
“A Summary of New and Pending Green and Green Building
Legislation,” Annual Atlantic Builder’s Convention, Atlantic City, NJ,
April 2009
“Environmental Case Law Update,” Annual New Jersey Defense
Association Convention, Cooperstown, NY, June 2008
“Environmental Case Law Update,” Annual New Jersey Defense
Association Convention, Cambridge, MD, June 2007
“Challenges & Considerations for Solo Practitioners and Small
Practices,” Institute of Continuing Legal Education, March 2007
“Professional Liabilities & Ethics,” Institute of Continuing Legal
Education, April 2006
“Women – Builders of Communities and Dreams,” Women in the Law
Committee, Gloucester County Bar Association, March 2006

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