Nl Industries, Inc. v. State(076550) ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
NL Industries, Inc. v. State of New Jersey (A-44-15) (076550)
Argued October 26, 2016 -- Decided March 27, 2017
LaVecchia, J., writing for a majority of the Court.
In this appeal, the Court determines whether the New Jersey Spill Compensation and Control Act (Spill Act),
N.J.S.A. 58:10-23.11 to -23.24, retroactively abrogated the State’s sovereign immunity for state action taken prior to
the Act’s 1977 effective date.
In September 1968, Sea-Land Development Corporation (Sea-Land) notified the State of its plans to protect
Laurence Harbor from future erosion by the construction of a seawall, which would be made partly with “slag,” an
industrial byproduct. Sea-Land received a riparian land grant and building permit for the seawall, and completed the
project during the early 1970s. During the construction, an Old Bridge Township official informed the NJDEP that
slag was being dumped into Raritan Bay. At the time, the State acknowledged ownership of some of the land on
which Sea-Land built the seawall; from the record, it does not appear that further action was taken at the time.
In 2007, the NJDEP detected contamination along the seawall in Laurence Harbor and reported its findings
to the United States Environmental Protection Agency (EPA) in June 2008. In 2014, the EPA demanded that NL
Industries, Inc. (NL), which had operated a factory in Perth Amboy that created slag as a byproduct, remediate the
site based on the assertion that Sea-Land had obtained from NL slag used in the Laurence Harbor projects.
NL filed a complaint seeking contribution from the State under the Spill Act, alleging that the State caused
or contributed to the Raritan Bay contamination in its roles as regulator and riparian landowner. The State filed a
motion to dismiss based on: (1) sovereign immunity; (2) the immunities and procedural protections in the New
Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12.3; and (3) NL’s failure to state a claim.
The trial court denied the State’s motion. 442 N.J. Super. 428 (Law Div. 2014). Combining the Spill Act’s
abrogation of sovereign immunity with its interpretation that this Court recognized a legislative intent that the Act be
applied retroactively in Department of Environmental Protection v. Ventron Corp., 94 N.J. 473 (1983), the trial
court concluded, first, that sovereign immunity for pre-Act discharges was waived. Second, the trial court found
that the Spill Act and the TCA “were enacted at different times for demonstrably different reasons” and declined to
graft onto the Spill Act the immunities and procedural protections of the TCA. Finally, the trial court rejected the
State’s argument that the complaint failed to state a claim.
On leave to appeal, the Appellate Division affirmed the denial of the motion substantially for the reasons
set forth by the trial court. 442 N.J. Super. 403. The Court granted the State’s motion for leave to appeal.
HELD: The Spill Act contains no clear expression of a legislative intent to waive the State’s sovereign immunity
retroactively to cover periods of State activity prior to the Spill Act’s enactment. Therefore, the State’s sovereign
immunity prevails against Spill Act contribution claims based on State activities that occurred prior to the original
effective date of that Act.
1. In 1976, the New Jersey Legislature enacted the Spill Act. From its origin, the Act provided that “any person”
responsible for a discharge of a hazardous substance into State waters or onto lands leading to those waters “shall be
strictly liable . . . for all cleanup and removal costs,” and defined “any person” to include “the State of New Jersey.”
The inclusion of the State in the definition of “person” signaled the Legislature’s clear intention to include the State
as a party responsible for its hazardous discharges and the waiver of sovereign immunity. Significantly, the Act’s
definition of “person” as inclusive of the State has never been altered. (pp. 10-14)
2. In 1979, the Legislature amended the Spill Act in several important ways. The Legislature opened up the Fund’s
use for remediation of spills that occurred before the Spill Act was enacted and coupled that action with the
expansion of NJDEP authority to seek contribution from non-public funding sources: namely, parties in any way
responsible for the discharge that the NJDEP removed or was removing. In that pointed way, liability was expanded
to permit the State to seek contribution from persons responsible for, among other discharges, those pre-Spill Act
enactment discharges that the NJDEP chose to address. In that manner, retroactivity found express authorization in
the Act, but only under N.J.S.A. 58:10-23.11f(b)(3). (pp. 15-18)
3. It is debatable from the combination of amendments to the Act in 1991, and accompanying legislative statements,
whether the change in the first sentence of N.J.S.A. 58:10-23.11g(c)(1)—to “no matter by whom incurred”—
signaled a broadly intended opening-up of contribution actions against any and all dischargers, including the State,
for hazardous discharges that preceded enactment of the Spill Act. (pp. 18-20)
4. It is an essential aspect of sovereignty to be free from suit by private citizens seeking money damages unless the
State has given its consent, which requires a clear legislative expression of intent to be subject to suit. A legislative
waiver of sovereign immunity must be expressed clearly and unambiguously, and a retroactive waiver of sovereign
immunity requires the clearest of expression. (pp. 20-23)
5. 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. The Act, as originally passed, did not address discharges that predated
enactment. Although the Legislature did not subsequently alter the definition of “person” to exclude the State
despite the amendment to permit private contribution actions for pre-Act discharges, that failure does not provide
any convincing answer to the question of retroactive abrogation of sovereign immunity. (pp. 24-25)
6. The question is not whether it is arguable that the Legislature passed an amendment that could be construed to
provide a pathway to imposing liability on the State in a private contribution action based on the State’s pre-Act
activities; rather, the Court must be able to conclude that the Legislature clearly and unambiguously expressed its
intention for that result to obtain. The Court does not find the deliberate clarity necessary to reach that conclusion
and therefore parts ways with the decisions reached by the trial court and Appellate Division. (pp. 25-27)
7. Ventron underscored the Court’s awareness that the Act’s retroactivity was conditioned—it pertained only to
those pre-Act discharges that the State cleaned up and sought reimbursement for from private parties. Far from
supporting the position taken in this action, Ventron highlights the limited nature of the retroactivity permitted under
the 1979 amendment. Post-Ventron, other courts of this State have recognized that not all of the Act’s provisions
are intended to be retroactive. (pp. 27-30)
8. Amendments made to the Spill Act in 1993 do not shore up NL’s position. That the Legislature chose to add to
the State’s defenses for discharges on property that the State subsequently acquired does not address legislative
intent regarding a retroactive stripping of the State’s sovereign immunity for pre-1977 liability. (pp. 31-32)
9. The trial court, affirmed by the Appellate Division, discerned no evidence that the Legislature intended to require
the State’s liability under the Spill Act to be harmonized with the procedural protections provided for claims under
the TCA. The Court agrees. Further, in response to the State’s argument that it should not be held liable when
exercising its regulatory responsibilities or for its role as a sovereign, the Court finds no clear evidence that the Act
was intended to strip the State of immunity for the discretionary governmental activities of a sovereign. (pp. 32-34)
The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the trial court for
further proceedings consistent with the holding of the Court.
JUSTICE ALBLIN, DISSENTING, expresses the view that, because there is no ambiguity about how the
Legislature defined the term “person,” there can be no doubt that the Legislature intended the Spill Act to apply
retroactively to the State, and sovereign immunity is a non-issue. Exonerating the State from retroactive liability for
remediating a pre-Act toxic discharge, while all others remain jointly and severally liable, does not accord with the
Legislature’s carefully crafted scheme of allocating fault equitably, in Justice Albin’s view.
CHIEF JUSTICE RABNER AND JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, AND
TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion.
2
SUPREME COURT OF NEW JERSEY
A-44 September Term 2015
076550
NL INDUSTRIES, INC.,
Plaintiff-Respondent,
v.
STATE OF NEW JERSEY,
Defendant-Appellant.
Argued October 26, 2016 – Decided March 27, 2017
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 442
N.J. Super. 403 (App. Div. 2015).
David S. Frankel, Deputy Attorney General,
argued the cause for appellant (Christopher
S. Porrino, Attorney General of New Jersey,
attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel).
Christopher R. Gibson argued the cause for
respondent (Archer & Greiner, attorneys; Mr.
Gibson and Patrick M. Flynn, on the briefs).
JUSTICE LaVECCHIA delivered the opinion of the Court.
Plaintiff NL Industries, Inc. (NL), filed a claim against
the State of New Jersey seeking contribution under the New
Jersey Spill Compensation and Control Act (Spill Act), N.J.S.A.
58:10-23.11 to -23.24, for environmental-contamination cleanup
costs for a site in the Laurence Harbor region of Old Bridge
Township. The claim is based on State activity that occurred
1
prior to enactment of the Spill Act. NL alleges that the State
was responsible for pollutant discharge for two reasons: first,
because the State was the owner of riparian land that became
contaminated and polluted the Laurence Harbor shoreline; and
second, because the State, acting as a regulator through the New
Jersey Department of Environmental Protection (NJDEP), approved
action related to the property of a third party that similarly
is alleged to be responsible for the Laurence Harbor
contamination.
The State unsuccessfully sought dismissal of NL’s claim.
This appeal is before us based on our grant of the State’s
motion for leave to appeal raising novel questions. The
fundamental issue is whether the Spill Act retroactively
abrogated the State’s sovereign immunity for state action taken
prior to the Act’s 1977 effective date. If we determine that
the State can be liable for its activities during the pre-Spill
Act time period, then we must decide two other questions that
are presented in this appeal: whether the State can be liable
under the Spill Act for actions taken as a regulator; and
whether State liability under the Spill Act must be harmonized
with the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to
12.3, which, among other things, provides the State with
immunity from tort claims for certain categories of
discretionary activities.
2
There is no dispute in this appeal that, effective with
enactment of the Spill Act, the State is responsible under the
Act for its discharges because the State is included in the
Spill Act’s definition of a “person” potentially liable.
N.J.S.A. 58:10-23.11b. The contest here centers on whether a
series of subsequent amendments made to the Spill Act, which
allowed the Act some retroactive application and which created
opportunities for private contribution actions, have rendered
the State liable for activities that occurred before the Act
became effective.
Based on careful review of the Act as enacted and as
serially amended, we conclude that the Spill Act contains no
clear expression of a legislative intent to waive the State’s
sovereign immunity retroactively to cover periods of State
activity prior to the Spill Act’s enactment. Absent a clear and
specific indication that the Legislature intended to impose a
retroactive liability that could have profound impact on the
fiscal affairs of the State, retroactive waiver of the State’s
sovereign immunity for Spill Act contribution claims concerning
pre-Act activities will not be inferred.
Therefore, on the fundamental issue in this appeal, we hold
that the State’s sovereign immunity prevails against Spill Act
contribution claims based on State activities that occurred
prior to the original effective date of that Act. The judgment
3
of the Appellate Division is reversed, and this matter is
remanded to the trial court for proceedings consistent with the
holding of this Court.
I.
Because this case comes before us on interlocutory appeal
from the denial of the State’s motion to dismiss plaintiff’s
complaint, we rely on facts gleaned from the pleadings.1 This
matter is factually and procedurally complex; we recite those
facts and procedural steps that are necessary to place the legal
issue in context.
A.
The case concerns the contamination of the Laurence Harbor
shoreline, a part of Raritan Bay, in Old Bridge Township
(Township). In the early 1960s, the State of New Jersey, along
with the Township, retained the services of the United States
Army Corps of Engineers (Army Corps of Engineers) to build
structures to protect the Laurence Harbor beach from erosion.
One such protective measure included the building of a levee and
the placement of beach fill on riparian land owned by the State.
The Army Corps of Engineers completed the project in 1966.
1 In the posture of this appeal, we treat hospitably all of NL’s
factual allegations. Printing Mart-Morristown v. Sharp Elecs.
Corp., 116 N.J. 739, 746 (1989).
4
In September 1968, Sea-Land Development Corporation (Sea-
Land), which had earlier acquired land in Laurence Harbor for
development, notified the State of its plans to protect Laurence
Harbor from future erosion by the construction of a seawall,
which would be made partly with “slag,” an industrial byproduct.
Sea-Land needed a grant of riparian land from the State in order
to construct its wall.
In December 1969, the Natural Resources Council of the
NJDEP approved a riparian land grant to Sea-Land subject to
several conditions, including that Sea-Land build a beach,
consistent with Army Corps of Engineers regulations, and allow
public access to the beach.2 At around the same time, acting
through the NJDEP, the State, with the approval of the Township
and the Army Corps of Engineers, issued a permit to Sea-Land to
build the seawall. Sea-Land accepted the conditions of the
riparian grant in 1970 and, thereafter, began construction.
Sea-Land completed the project during the early 1970s,
using slag on both the seawall and an existing jetty that the
Army Corps of Engineers had constructed during the 1880s. The
seawall was situated on land owned by Sea-Land as well as land
2 As previously mentioned, we recite the facts that were pled in
the complaint; however, we note that the NJDEP was established
in 1970 and, therefore, this procedural history is actually
referencing the successor agencies to those that took these
actions in 1969. See L. 1970, c. 33.
5
owned by the State, and the State held, and still retains, an
ownership interest in the jetty.
During the construction, a Township official informed the
Chief of the NJDEP Bureau of Solid Waste Management that slag
was being dumped into Raritan Bay. During the fall of 1972,
various divisions of the NJDEP examined the reported information
and, in March 1973, the State, the Township, and the Army Corps
of Engineers met to discuss the slag issue. At the time, the
State acknowledged ownership of some of the land on which Sea-
Land built the seawall; from the record, it does not appear that
further action was taken at the time.
In 2007, the NJDEP detected contamination along the seawall
in Laurence Harbor. The NJDEP reported its findings to the
United States Environmental Protection Agency (EPA) in June
2008. The EPA investigated and then, in 2009, placed Laurence
Harbor on a national list of contaminated sites. In May 2013,
the EPA issued a Record of Decision on the matter, selecting a
cleanup and removal remedy for the hazardous material in Raritan
Bay, including the Laurence Harbor seawall and jetty, that was
estimated to cost $79 million overall.
6
In January 2014, the EPA3 demanded that NL, which had
operated a factory in Perth Amboy that created slag as a
byproduct, remediate the site based on the assertion that Sea-
Land had obtained from NL slag used in the Laurence Harbor
projects. NL thereafter filed a state court complaint seeking
contribution from the State under the Spill Act, alleging that
the State caused or contributed to the Raritan Bay contamination
in its roles as regulator and riparian landowner.
B.
Procedurally, NL’s claim unfolded through motion practice.
With discovery not yet completed, the State filed a motion to
dismiss NL’s claim based on: (1) sovereign immunity; (2) the
common law immunities codified in the TCA, as well as the TCA’s
procedural protections; and (3) NL’s failure to state a claim
against the State.4
The trial court denied the State’s motion. NL Indus., Inc.
v. State, 442 N.J. Super. 428, 449 (Law Div. 2014), aff’d, 442
N.J. Super. 403 (App. Div. 2015). First, the court determined
that the Spill Act provided a clear and unambiguous waiver of
3 The EPA acted pursuant to its authority under Section 106(a)
of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), 42 U.S.C.A. §§ 9601 to 9675.
4 The State filed an answer and counterclaim later in this
matter, after its motion to dismiss was denied by the trial
court and while its motion for leave to appeal to the Appellate
Division was pending.
7
the State’s sovereign immunity. Id. at 442. The court noted
that the State is listed as a potentially liable “person,” and
that the Legislature did not “immunize or exclude” the State
from the list of “persons” from whom a discharger may seek
contribution when amending the Act in 1991 to allow for
contribution actions. Ibid. For further support, the trial
court relied on Department of Environmental Protection v.
Ventron Corp., 94 N.J. 473 (1983), in which Spill Act liability
was imposed for the pre-enactment activities of private
responsible parties sued by the NJDEP to recover costs expended
by the Spill Fund to clean up those private parties’ pre-Act
discharges. Id. at 441. The trial court cited Ventron for the
proposition that this Court has recognized a legislative intent
that the Act be applied retroactively. Ibid. Combining the
Act’s abrogation of sovereign immunity with that interpretation
of Ventron’s holding, the trial court concluded that the State’s
sovereign immunity from liability for pre-Act discharges was
waived. Id. at 441-42.
Second, the trial court declined to read the Spill Act in
pari materia with the TCA and accordingly refused to bar NL’s
claim based on noncompliance with the TCA’s procedural
requirements. Id. at 446-47. The court found that the two
statutes “were enacted at different times for demonstrably
different reasons.” Id. at 445. Determining it unnecessary to
8
harmonize the two statutory schemes, the court declined to graft
onto the Spill Act the immunities and procedural protections of
the TCA. Id. at 446-47.
Finally, the trial court held that NL’s factual allegations
established a reasonable nexus between the State’s conduct and
the slag contamination and rejected the State’s argument that
the complaint failed to state a claim. Id. at 448-49.
On leave to appeal granted to the State, the Appellate
Division affirmed the denial of the State’s motion in a brief
opinion that relied substantially on the reasons set forth by
the trial court. NL Indus., Inc. v. State, 442 N.J. Super. 403,
404-05 (App. Div. 2015). We granted the State’s motion for
leave to appeal from the Appellate Division judgment.
The issues raised in the State’s motion for leave to appeal
were set forth at the outset of this opinion. The parties’
arguments before this Court are substantially the same as those
presented to the courts below. To the extent elaboration is
required, the arguments are included directly in our analysis of
this matter.
II.
We begin with the fundamental statutory question before us
-- whether the Spill Act retroactively strips the State of its
sovereign immunity for pre-Spill Act activities. To address
that question, we turn to the Spill Act’s relevant provisions
9
when first enacted and how those provisions are illuminated
through the amendments made to the Act.
A.
1.
In 1976, the New Jersey Legislature enacted the Spill Act.
L. 1976, c. 141 (codified at N.J.S.A. 58:10-23.11 to –23.24).
The innovative nature and breadth of that enactment has been
examined by this Court before. See, e.g., Morristown Assocs. v.
Grant Oil Co., 220 N.J. 360, 364-65 (2015) (collecting cases).
From its origin, the Act provided that “any person”
responsible for a discharge of a hazardous substance into State
waters or onto lands leading to those waters “shall be strictly
liable . . . for all cleanup and removal costs.” L. 1976, c.
141, § 8(c). Section 8 of the original enactment rendered the
Act’s newly created non-lapsing fund (Spill Fund or the Fund),
see L. 1976, c. 141, § 10, strictly liable, without fault, for
all costs of cleanup and removal of such discharges and for all
direct and indirect damages stemming from the removal of
hazardous discharges, L. 1976, c. 141, § 8(a). Removal and
cleanup activities were placed under NJDEP control through
Section 7 of the Act. See L. 1976, c. 141, § 7 (codified at
N.J.S.A. 58:10-23.11f). Section 8 established the liability
provisions of the Spill Act (codified at N.J.S.A. 58:10-23.11g).
10
From its inception, the Act defined “any person” to include
“the State of New Jersey.” L. 1976, c. 141, § 3(n) (codified at
N.J.S.A. 58:10-23.11b). The inclusion of the State in the
definition of “person” signaled the Legislature’s clear
intention to include the State as a party responsible for its
hazardous discharges and brought about the waiver of sovereign
immunity for this new breed of statutory liability that repealed
and supplanted previous water-pollution legislation. See
Ventron, supra, 94 N.J. at 494-97 (canvassing history of state
anti-water-pollution statutes leading to Spill Act). The
predecessor statute to the Spill Act had not included the State
in its definition of a liable “person.” See L. 1971, c. 173,
§ 3(g) (omitting “State” from “persons” subject to predecessor
Water Quality Improvement Act of 1971).
The Act defined “discharge” as an “intentional or
unintentional action or omission resulting in the releasing . .
. of hazardous substance.” L. 1976, c. 141, § 3(h) (codified at
N.J.S.A. 58:10-23.11b). A unique structure was created for
addressing the prompt remediation of hazardous substances
discharged “into the waters of the State or onto lands from
which [those substances] might flow or drain into” such waters.
Ibid. The Legislature created a Spill Fund “to finance . . .
cleanup of oil spills and hazardous-waste discharges and to
compensate” for damages caused by those discharges. Buonviaggio
11
v. Hillsborough Twp. Comm., 122 N.J. 5, 8 (1991) (citing
N.J.S.A. 58:10-23.11a); see id. at 8-10 (describing history of
revolving fund established for cleanups and damages and how
subsequent legislative alterations expanded its fiscal base).
A Fund administrator controlled disbursements from the Fund
and, originally, was authorized to seek reimbursement to the
Fund from parties responsible for use of Fund monies for cleanup
and removal costs; later, broad responsibility was transferred
to the NJDEP, which became responsible for operation and
implementation, as well as protection of the Fund’s purse. See
generally id. at 9-10. Cleanup and removal costs, placed under
the control of the NJDEP, were defined originally in the Act as
all costs associated with a discharge incurred
by the State or its political subdivisions or
their agents or any person with written
approval from [the NJDEP] in the (1) removal
or attempted removal of hazardous substances
or, (2) taking of reasonable measures to
prevent or mitigate damages to the public
health, safety, or welfare . . . .
[L. 1976, c. 141, § 3(d).]
Thus, as initially created, the Spill Act established a
scheme by which “most cleanup actions would be conducted by DEP
using monies from the Spill Fund where needed.” Morristown
Assocs., supra, 220 N.J. at 375. The Act made “[t]he fund . . .
strictly liable, without regard to fault, for all cleanup and
removal costs.” L. 1976, c. 141, § 8(a). Section 7 of the Act
12
authorized the NJDEP to draw from monies available in the Fund
to remove or to arrange for the removal and cleanup of hazardous
substances, and to minimize the damage caused by the discharge.
And the Fund administrator, later the NJDEP, was authorized to
seek reimbursement to the Fund from parties responsible for the
discharge, if the discharger did not clean up his or her own
contamination pursuant to a plan approved by the NJDEP.
2.
Significantly for purposes of this appeal, the Act’s
definition of “person” as inclusive of the State has never been
altered. The unchanging nature of that term within the Spill
Act features prominently in NL’s argument in this matter.
Because NL’s position was adopted by the trial court and the
Appellate Division, whose decision we now review, we begin by
summarizing NL’s arguments.
NL contends that the plain language of the Spill Act’s
definition of a “person,” which includes the State among
entities potentially responsible for a hazardous discharge,
supports its argument that the State may now be held to be
retroactively liable for pre-Act discharges. NL maintains that
because the Act has been amended to permit private contribution
actions against a potentially responsible party for a discharge
that predates passage of the Act, such an action may now be
brought against the State like any other “person” liable under
13
the Act. Based on its plain reading of the current version of
the Spill Act, particularly its provisions related to
contribution actions and the definition of “person,” NL contends
that the Legislature has authorized a retroactive waiver of the
State’s sovereign immunity for pre-Act activities by the State
that relate to discharges in Laurence Harbor. NL also contends
that this Court’s opinion in Ventron supports its position.
The State, on the other hand, contests the correctness of
NL’s plain language interpretation. The State further argues
that NL misinterprets the meaning of the Legislature’s
amendments to the Act and how those alterations fit together
concerning the State’s liability. Also, the State maintains
that Ventron is being overextended in NL’s argument. Moreover,
the State asserts that a retroactive waiver of sovereign
immunity is strongly disfavored and requires the clearest of
showings to demonstrate such a legislative intent. That clarity
of intent is missing here, according to the State.
The merits of the arguments advanced require an evaluation
of the series of amendments that are asserted to have authorized
retroactive application of State liability under the Spill Act.
We next trace the history of the pertinent amendments.
B.
1.
14
In 1979, the Legislature amended the Spill Act in several
important ways.
Section 8 of the Act -- the provision addressing liability
-- was amended to impose strict liability on “[a]ny person who
has discharged a hazardous substance or is in any way
responsible for any hazardous substance which [the NJDEP] has
removed or is removing” pursuant to Section 7(b) of the 1979
amendments. L. 1979, c. 346, § 5(c) (codified at N.J.S.A.
58:10-23.11g(c)(1)) (new material in bold and underlined).
Section 7 of the Act -- the provision addressing NJDEP
authority under the Act -- was modified to clarify the nature of
the NJDEP’s responsibility for cleanups. L. 1979, c. 346, § 4
(codified at N.J.S.A. 58:10-23.11f). With additions in bold and
underlined and omissions in angle brackets, the provision was
amended to read as follows:
Whenever any hazardous substance is
discharged, the department [i.e., the NJDEP]
may in its discretion act to remove or
arrange for the removal of such discharge or
may direct the discharger to remove, or
arrange for the removal of, such discharge<,
unless it determines such removal will be done
properly and expeditiously by the owner or
operator of the major facility or any source
from which the discharge occurs>. Any
discharger who fails to comply with such a
directive shall be liable to the [NJDEP] in an
amount equal to three times the cost of such
removal.
[L. 1979, c. 346, § 4(a) (codified at N.J.S.A.
58:10-23.11f(a)(1)).]
15
The collective effect of those amendments converted the
NJDEP’s mandatory cleanup duty into a discretionary duty, in
practical recognition that the NJDEP could not effectively
manage the remediation of all hazardous discharges implicated
under the Spill Act. The amendments enabled the NJDEP to order
a responsible party to commence cleanup in its stead. The
trebling of costs, should a discharger fail to comply with the
NJDEP’s order, incentivized compliance with the NJDEP’s expanded
range of cleanup options.
In the same set of amendments, the Legislature further
amended Section 7 -- again, the section addressing NJDEP
authority -- to include a wholly new provision allowing the
NJDEP to clean up and remediate spills that occurred prior to
the Act’s original passage. That 1979 addition addressed, for
the first time, a retroactive application of the Act to
hazardous discharges that occurred before the Act’s enactment.
The Legislature inserted this important new authorization for a
retroactive application of the Spill Act not into the liability
section -- Section 8 of the Act -- but rather into Section 7,
thereby amplifying the NJDEP’s authority to remediate certain
ancient discharges, subject to the availability of Spill Fund
monies. The new subsection added the following:
b. Notwithstanding any other provisions of
[the Spill Act], the [NJDEP], after notifying
16
the administrator and subject to the approval
of the administrator with regard to the
availability of funds therefor, may remove or
arrange for the removal of any hazardous
substance which:
. . . .
(3) Has been discharged prior to the effective
date of the act to which this act is
amendatory, if such discharge poses a
substantial risk of imminent damage to the
public health or safety or imminent and severe
damage to the environment.
[L. 1979, c. 346, § 4(b) (codified at N.J.S.A.
58:10-23.11f(b)).5]
That latter addition -- clarifying that a retrospective
application to the Act was permissible -- constitutes the
legislative step that first allowed Fund monies to be used to
clean up discharges that occurred before the enactment of the
Spill Act. See Buonviaggio, supra, 122 N.J. at 10 (citing
N.J.S.A. 58:10-23.11f(b)(3)). An accompanying committee
statement memorialized the 1979 amendment’s aim to “open the
fund to ancient . . . spills which pose a threat to the public
health and safety.” Gen. Assem. Agric. and Envtl. Comm.,
Statement to Gen. Assem. No. 3542 (1979).
Thus, the 1979 amendments settled an unresolved question
about whether the State was authorized to expend Fund resources
5 The language in Section 7(b) was later simplified to refer to
discharges that occurred “prior to the effective date of P.L.
1976, c. 141.”
17
remediating discharges that predated the Act’s existence. See
Atl. City Mun. Utils. Auth. v. Hunt, 210 N.J. Super. 76, 87
(App. Div. 1986); Dep’t of Envtl. Prot. v. J.T. Baker Co., 234
N.J. Super. 234, 247 (Ch. Div. 1989) (noting importance of
clarity provided by 1979 amendments to Spill Act), aff’d, 246
N.J. Super. 224 (App. Div. 1991). Notably, when the Legislature
opened up the Fund’s use for remediation of spills that occurred
before the Spill Act was enacted, the Legislature coupled that
action with the expansion of NJDEP authority to seek
contribution from non-public funding sources: namely, parties
in any way responsible for the discharge that the NJDEP removed
or was removing. See L. 1979, c. 346, §§ 4, 5. In that pointed
way, liability was expanded to permit the State to seek
contribution from persons responsible for, among other
discharges, those pre-Spill Act enactment discharges that the
NJDEP chose to address. In that manner, retroactivity found
express authorization in the Act, but only under N.J.S.A. 58:10-
23.11f(b)(3).
2.
The other amendment of significance in our analysis
occurred in April 1991, when the Legislature revisited the
liability section of the Spill Act. See N.J.S.A. 58:10-
23.11g(c)(1). That amendment is set forth in full, with
additions in bold and underlined and omissions in angle brackets
18
to facilitate identification of the alterations to the
provision.
Any person who has discharged a hazardous
substance, or is in any way responsible for
any hazardous substance , shall be strictly
liable, jointly and severally, without regard
to fault, for all cleanup and removal costs no
matter by whom incurred. Such person shall
also be strictly liable, jointly and
severally, without regard to fault, for all
cleanup and removal costs incurred by the
[NJDEP] or a local unit pursuant to [N.J.S.A.
58:10-23.11f].
[L. 1991, c. 85, § 4(c) (codified at N.J.S.A.
58:10-23.11g(c)(1)).]
In addition to that amendment, the 1991 amendment expanded
Section 7 to permit the expenditure of Fund monies to local
governmental units, when acting in an emergency response
situation and with the approval of the NJDEP, for the removal of
hazardous substances. L. 1991, c. 85, § 3 (codified at N.J.S.A.
58:10-23.11f(b)); see also id. at §§ 5, 6 (amending N.J.S.A.
58:10-23.11o and -23.11q to permit Fund administrator to seek
fund reimbursement in such settings and limiting proof
requirements in such actions). Legislative statements issued in
connection with the 1991 amendments primarily focused on a
legislative intent to enable municipalities to recover costs in
responding to the discharge of hazardous substances; none
referred directly to the changes made to N.J.S.A. 58:10-
19
23.11g(c)(1). See Sen. Envtl. Quality Comm., Statement to Sen.
No. 1928 (1990); Gen. Assem. Energy & Env’t Comm., Statement to
Sen. No. 1928 (1990); Sponsor’s Statement to Sen. No. 1928
(1990).
Thus, the legislative history is silent on the relationship
between the 1991 amendment and its connection to contribution
actions against the State generally, and with respect to pre-Act
activities by the State, in particular. It is debatable from
the combination of amendments to the Act in 1991, and
accompanying legislative statements, whether the change in the
first sentence of N.J.S.A. 58:10-23.11g(c)(1) -- to “no matter
by whom incurred” -- signaled a broadly intended opening-up of
contribution actions under N.J.S.A. 58:10-23.11f(a)(2)(a)
against any and all dischargers, including the State, for
hazardous discharges that preceded enactment of the Spill Act.
Only the second sentence of this amendment contains a reference
to N.J.S.A. 58:10-23.11f, and N.J.S.A. 58:10-23.11f(b)(3) is
where one finds the Act’s singular reference to retroactive
application of Spill Act liability to pre-Act discharges.
III.
A.
Longstanding principles of statutory interpretation favor
the prospective application of statutes. Gibbons v. Gibbons, 86
N.J. 515, 521 (1981) (recognizing principle that statutes are
20
presumed to apply prospectively). Statutes have received
retroactive application when: (1) the Legislature explicitly
expressed its intent to have the statute apply retroactively, or
impliedly did so because retroactivity is “necessary to make the
statute workable”; (2) a curative or ameliorative statute is
involved; or (3) the reasonable “expectations of the parties . .
. warrant retroactive application of a statute.” Id. at 522-23;
see also Twiss v. State, 124 N.J. 461, 467 (1991) (same). The
latter two categories of potential retroactive application are
not implicated in this appeal.
In the subset of legislative action modifying existing law,
a new law is treated as presumptively prospective in application
“unless there is an unequivocal expression of contrary
legislative intent.” Dewey v. R.J. Reynolds Tobacco Co., 121
N.J. 69, 95 (1990) (internal quotation marks omitted). In the
narrower arena of legislation effecting a waiver of sovereign
immunity, the presumption against retroactive application is
even stronger due to protective policies pertaining to sovereign
immunity.
It is well settled that “the State may not be sued in [its
own] courts without its consent.” Taylor v. N.J. Highway Auth.,
22 N.J. 454, 466-67 (1956) (collecting cases). It is an
essential aspect of sovereignty to be free from suit by private
citizens seeking money damages unless the State has given its
21
consent, Lodor v. Baker, Arnold & Co., 39 N.J.L. 49, 50 (Sup.
Ct. 1876), which requires a clear legislative expression of
intent to be subject to suit, N.J. Interstate Bridge & Tunnel
Comm’n v. Jersey City, 93 N.J. Eq. 550, 553 (Ch. 1922)
(requiring strict construction of statutes in abrogation of
sovereign immunity because such statutes “are not permitted to
divest the state or its government of any of its prerogatives,
rights or remedies, unless the intention of the legislature to
effect such object is clearly expressed in the statute”). In
other words, a legislative waiver of sovereign immunity must be
expressed clearly and unambiguously, Allen v. Fauver, 167 N.J.
69, 77-78 (2001), and a retroactive waiver of sovereign immunity
requires the clearest of expression.
This Court has taken care with any retroactive application
of the waiver of sovereign immunity when the issue has arisen.
Such care was taken, for example, in the seminal case involving
the waiver of sovereign immunity from common law tort actions,
Willis v. Department of Conservation & Economic Development, 55
N.J. 534 (1970).
In Willis, after years of growing dissatisfaction with
application of common law sovereign immunity, this Court
announced that it would begin to hear tort liability claims
against the State, subject to the Legislature’s determination to
satisfy the adjudicated claims. Id. at 537-38, 541. In a
22
companion case, the Court similarly determined to entertain
contract claims against the State. P, T & L Constr. Co. v.
Comm’r, Dep’t of Transp., 55 N.J. 341 (1970). The Court
observed that the Legislature had been slow to draft a
“comprehensive legislative solution” to liability against the
sovereign and, therefore, the Court asserted that it was “time
for the judiciary to accept . . . responsibility and adjudicate
the tort liability of the State itself.” Willis, supra, 55 N.J.
at 539-40. The Legislature swiftly responded with the TCA and
the Contractual Liability Act in 1972. L. 1972, c. 45 (codified
at N.J.S.A. 59:1-1 to 14-4).
Notably, in Willis, supra, this Court scrupulously avoided
any retroactive application of its holding abrogating sovereign
immunity -- to the extent it permitted the adjudication of
claims -- by denying that privilege to earlier-in-time claims.
55 N.J. at 541. The Willis Court cited strong fiscal and policy
reasons for refusing to allow acceptance of other already
existing claims, including that there were no appropriations to
pay the obligations or to handle the caseload that might ensue
and that the Legislature might wish to enact procedural and
substantive limitations on the right to recover; therefore, the
Court postponed implementation of its decision, except as to the
championing successful plaintiff, for more than eight months to
allow the Legislature to act. Ibid.; see also Rochinsky v.
23
Dep’t of Transp., 110 N.J. 399, 414 (1988) (considering whether
common law immunity for snow removal survived TCA adoption and
concluding that “[a]bsent a clear and specific indication that
the Legislature intended to impose a liability that could have
such a radical impact on the fiscal affairs of public entities,”
TCA did not establish clear enough legislative expression to
have abrogated that protective immunity).
B.
We now proceed to determine whether the Legislature clearly
and unambiguously intended to abrogate, retroactively, the
State’s sovereign immunity for activities that occurred prior to
enactment of the Spill Act.
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.
The Act, as originally passed, did not address discharges that
predated enactment. Although the Legislature did not
subsequently alter the definition of “person” to exclude the
State despite the amendment to permit private contribution
actions for pre-Act discharges, that failure, contrary to NL’s
argument, does not in and of itself provide any convincing
answer to the question of retroactive abrogation of sovereign
24
immunity.6 The provisions of the Act must be understood
together. To do that, the amendments must be examined in light
of the legislative intent animating the amendments layered onto
this complex piece of legislation.
As noted, retroactivity was not introduced into the Act
until the 1979 amendments did so, and then only for the limited
purpose of augmenting NJDEP authority by allowing the NJDEP to
access Spill Fund monies for cleanups of discharges that
occurred before the enactment of the Spill Act. Buonviaggio,
supra, 122 N.J. at 10. To the extent that the liability section
was amended at the same time, we can perceive, clearly, only the
following: the Legislature coupled its amendatory “retroactive”
action concerning pre-Act discharges, which could now provide a
basis for the drawdown of Spill Fund monies, with an expansion
of a liability that the NJDEP could pursue to replenish the
Fund. Liability was expanded to permit the State to seek
contribution from persons responsible for the pre-Spill Act
discharges that the NJDEP chose to address.
We fail to see from that combination of amendments in 1979
any basis for establishing any legislative intent whatsoever --
let alone a clear or unambiguous intent -- to abrogate the
6 Our dissenting colleague’s plain language analysis glosses
over the central question in this appeal -- namely, whether
sovereign immunity was intended to be retroactively abrogated.
25
sovereign immunity otherwise applicable to the State’s
activities occurring before the Act became effective in 1977.
Nor do the 1991 amendments provide that necessary clarity.
There is no trail between the altered language in Section 8’s
liability provision, deleting reference to the NJDEP’s removal
of hazardous substances “pursuant to subsection b. of section 7”
and adding “no matter by whom incurred,” and the contribution
section contained in Section 7 (N.J.S.A. 58:10-23.11f(a)(2)(a)),
that leads directly to the conclusion that the Legislature was
opening the State to contribution actions for its pre-Spill Act
activities as landowner or regulator. Such a conclusion must be
clearly and unambiguously expressed, and here we do not have
anything close to that clarity.
Likewise, the 1991 amendments’ legislative statements do
not establish that the change in language in the first sentence
of N.J.S.A. 58:10-23.11g(c)(1) -- to “no matter by whom
incurred” -- conveyed with the necessary precision a legislative
intent to open up contribution actions under N.J.S.A. 58:10-
23.11f(a)(2)(a) against any and all dischargers, including the
State, for hazardous discharges that preceded enactment of the
Spill Act. A broad, new, retroactive application for
contribution actions involving pre-Act discharges is at odds
with, or at the least appears to render redundant, the second
sentence to the amendment, which expressly refers to cleanups by
26
the NJDEP or a local governmental unit pursuant to N.J.S.A.
58:10-23.11f. And, as previously noted, only that second
sentence refers to N.J.S.A. 58:10-23.11f, and N.J.S.A. 58:10-
23.11f(b)(3) is where one finds the Act’s singular reference to
retroactive application of Spill Act liability to pre-Act
discharges.7
The question is not whether it is arguable that the
Legislature passed an amendment that could be construed to
provide a pathway to imposing liability on the State in a
private contribution action based on the State’s pre-Act
activities; rather, we must be able to conclude that the
Legislature clearly and unambiguously expressed its intention
for that result to obtain. We do not find the deliberate
clarity necessary to reach that conclusion and therefore part
ways with the decisions reached by the trial court and Appellate
Division.
C.
To the extent it is relied upon, Ventron, supra, does not
lend support to the proposition that the Spill Act subjects the
State to retroactive liability for pre-Spill Act activities. 94
N.J. 473.
7 The dissent’s statutory analysis never accounts for this
limited, singular reference to retroactivity in the logic of its
plain language interpretation.
27
Ventron’s setting was an action brought by the State
against private parties responsible for a discharge whose
cleanup the State had addressed, notwithstanding that the
discharge predated the original enactment of the Spill Act. Id.
at 485. In the course of the opinion, the Court tracked the
Act’s consistency with earlier water-pollution statutes
applicable to private parties up through the Water Quality
Improvement Act of 1971, which the Spill Act repealed and
supplanted, and addressed the 1979 amendment that allowed for
retroactive application of liability. Id. at 494-97.
Critically, the Court noted that the 1979 amendment “imposed
strict liability on any person ‘who has discharged a hazardous
substance or is in any way responsible for any hazardous
substance’ removed by DEP.” Id. at 494 (quoting N.J.S.A. 58:10-
23.11g(c)). The Court’s paraphrase of the closing language to
the sentence taken from the 1979 amendment underscored the
Court’s awareness that the retroactivity was conditioned on that
important feature -- it pertained only to those pre-Act
discharges that the State cleaned up and sought reimbursement
for from private parties. See id. at 487, 494. Far from
supporting the position taken in this action, Ventron highlights
the limited nature of the retroactivity permitted under the 1979
amendment. The decision in Ventron did not purport to speak to
all permutations of retroactive application of the Spill Act.
28
Post-Ventron, other courts of this State properly have
built their holdings carefully from the contextual holding
provided by Ventron, avoiding any broad interpretation of the
Act based on generalized statements about retroactivity
contained in the Court’s opinion. Such decisions have
recognized that not all of the Act’s provisions are intended to
be retroactive.
The Appellate Division considered Ventron’s effect on pre-
Act claims against the Spill Fund in Hunt, supra, where the
Atlantic City Municipal Utilities Authority (MUA) filed a claim
against the Spill Fund “to recover cleanup and removal costs
incurred because of [an] environmental hazard created” at a
landfill adjacent to MUA wells prior to the Act’s enactment.
210 N.J. Super. at 78-79, 92. The panel held that the Spill
Fund need not reimburse the MUA for its cleanup of the wells
because it found “no indication in the Act’s history that the
Legislature was originally thinking of generally covering
discharges which occurred before the existence of the Act,” and
instead found that “the strict liability provision of N.J.S.A.
58:10-23.11g(a) was prospective except with regard to [NJ]DEP’s
ability to recover for its cleanup and removal costs incurred in
29
removing hazardous substances discharged before the passage of
the Act.” Id. at 90, 91 (emphasis added).8
Notably, the Hunt panel appropriately rejected the argument
that the Ventron “statement that the Legislature expressly
intended the Act to be given retroactive effect” meant that “all
provisions of the Act should be given retroactive effect”
because that reading of Ventron takes the statement out of
context. Id. at 93, 94. See also J.T. Baker Co., supra, 234
N.J. Super. at 242, 246 (finding that Spill Act’s penalty
provisions did not apply retroactively despite Ventron because
Ventron’s holding as to one provision “d[id] not mean that the
entire statute was intended to have retrospective application,”
particularly when such retroactivity “would serve no . . .
rational purpose”); cf. Handy & Harman v. Borough of Park Ridge,
302 N.J. Super. 558, 565 (App. Div.) (noting that only certain
“portions of the Spill Act have been held to be retroactive”),
certif. denied, 152 N.J. 10 (1997).
D.
8 The Hunt court emphasized the fact that the 1979 Legislature
“decided to give [NJ]DEP the power to clean up pre-Act
discharges and simultaneously allowed it to recover from the
fund” when it added L. 1979, c. 346, § 4 (now codified at
N.J.S.A. 58:10-23.11f(b)(3)), and amended L. 1979, c. 346, § 5
(now codified at N.J.S.A. 58:10-23.11g(c)), such that the 1979
amendments were meant to permit only the NJDEP to recover its
cleanup costs for pre-Act spills. Hunt, supra, 210 N.J. Super.
at 87-88, 92 (emphasis added).
30
Finally, we note that, although relied upon by NL,
amendments made to the Spill Act in 1993 do not shore up NL’s
position that the Legislature deliberately intended for the
State to be stripped of its sovereign immunity and liable for
State activities predating the Act’s original effective date in
1977.
The 1993 Legislature amended the Act to provide a defense
for governmental entities that acquire land “by virtue of
[their] function[s] as sovereign[s]” when that land had been
contaminated prior to the acquisition. L. 1993, c. 139, § 44
(codified at N.J.S.A. 58:10-23.11g(d)). The defense is
unavailable to entities that “caused or contributed to the
discharge of a hazardous substance.” Ibid.
That amendment provides no clarity on legislative intent to
retroactively impose liability under the Act for actions
predating 1977. The State concedes that it was stripped of its
sovereign immunity for conduct occurring since the Act first
became effective. Thus, the State could have acquired property
by virtue of its function as a sovereign both before and after
the Act’s 1977 effective date. That the Legislature chose to
add to the State’s defenses for discharges on property that the
State subsequently acquired does not address, let alone clearly
answer, the question of legislative intent regarding a
31
retroactive stripping of the State’s sovereign immunity for pre-
1977 liability.9
V.
Although our holding rejecting retroactive imposition of
liability under the Act on the State for pre-1977 activities
answers the fundamental question in this matter, we add the
following for completeness.
The trial court, affirmed by the Appellate Division,
discerned no evidence that the Legislature intended to require
the State’s liability under the Spill Act to be harmonized with
the procedural protections provided for claims under the TCA.
We agree. As the trial court stated, “[t]he Spill Act and the
TCA were enacted at different times for demonstrably different
reasons.” NL Indus., Inc., supra, 442 N.J. Super. at 445.
Because the statutes serve different ends, the trial court
determined it would be inappropriate to impose on Spill Act
plaintiffs seeking contribution from the State for its
affirmative discharges the obligation to satisfy the TCA’s
notice-of-claim requirements. Id. at 447 n.10 (citing, for
9 Although this Court stated in Morristown Associates, supra,
220 N.J. at 381, that N.J.S.A. 58:10-23.11f(a)(2)(a) limits a
contribution defendant’s “defenses to liability,” that
limitation does not extend to immunities, as the Act elsewhere
separately acknowledges immunities as distinct from defenses.
See N.J.S.A. 58:10-23.11g3(d).
32
additional support, Owens v. Feigin, 194 N.J. 607, 613-14
(2008)). We add that guidance in order to avoid confusion in
contribution claims pertaining to State discharges post-
enactment of the Spill Act.
Further, the State forcefully argued that the State should
not be held liable when exercising its regulatory
responsibilities or for its role as a sovereign. See Amelchenko
v. Borough of Freehold, 42 N.J. 541, 550 (1964) (“It cannot be a
tort for government to govern.”).
The State advanced that argument to underscore the
absurdity that it perceived would occur were the State held to
be retroactively stripped of its pre-Act sovereign immunity and
determined to be potentially liable for discharges into the
waters and related lands hundreds of years into the past. The
State also relied on that argument to maintain that the
liability section, which includes those who are “in any way
responsible” for discharges of hazardous substances, should not
be interpreted so broadly, and in conflict with the TCA’s
continued maintenance of immunity for discretionary activities.
See N.J.S.A. 59:2-3. We note that plaintiff conceded during
oral argument in this matter that the State, when acting as a
regulator, cannot be liable for others’ discharges.
In light of the fact that the State’s regulatory actions in
this matter all preceded the original passage of the Spill Act,
33
we add, concededly in dicta, only that we can find no clear
evidence in the legislative history of the Act that it was
intended to strip the State of immunity for the discretionary
governmental activities of a sovereign.
VI.
The judgment of the Appellate Division is reversed, and the
matter is remanded to the trial court for proceedings consistent
with the holding of the Court.
CHIEF JUSTICE RABNER AND JUSTICES PATTERSON, FERNANDEZ-
VINA, SOLOMON, AND TIMPONE join in JUSTICE LaVECCHIA’s opinion.
JUSTICE ALBIN filed a separate, dissenting opinion.
34
SUPREME COURT OF NEW JERSEY
A-44 September Term 2015
076550
NL INDUSTRIES, INC.,
Plaintiff-Respondent,
v.
STATE OF NEW JERSEY,
Defendant-Appellant.
JUSTICE ALBIN dissenting.
Today, the majority holds that the State has no cleanup
liability for its discharge of toxic pollutants onto New
Jersey’s lands before passage of the New Jersey Spill
Compensation and Control Act (Spill Act), N.J.S.A. 58:10-23.11
to -23.24. The majority concludes that only private parties are
responsible for cleaning up pre-Spill Act toxic discharges.
In passing and amending the Spill Act, however, the
Legislature made no distinction between the State and private
parties as toxic dischargers or owners of contaminated
properties. Both the State and private parties are defined as a
“person” for purposes of the Act. See N.J.S.A. 58:10-23.11b.
Under the Spill Act, when the State and private parties are
polluters, they have an equal responsibility to remediate
contamination that threatens the health of our citizens and the
integrity of our environment. Property contaminated before
1
1977, and not remediated, whether a school ground, a park, or a
beach retention wall, is a threat to public health, even when
the State is the polluter.
In Department of Environmental Protection v. Ventron Corp.,
we stated, “the Legislature has expressly declared that the
Spill Act should be given retroactive effect.” 94 N.J. 473, 498
(1983). We specifically held in Ventron that the Legislature
“established retroactive strict liability” against any “person”
-- a term that includes the State -- for a hazardous-substance
discharge, which the New Jersey Department of Environmental
Protection (NJDEP) is cleaning up or has cleaned up. Id. at 497
(citing N.J.S.A. 58:10-23.11g(c)); see also N.J.S.A. 58:10-
23.11b. 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. This
clear expression of legislative intent constitutes an
unmistakable waiver of sovereign immunity. See Allen v. Fauver,
167 N.J. 69, 74 (2001) (noting that “clear and unambiguous
legislative expression” constitutes waiver of sovereign
immunity).
The majority’s conclusion that only private parties -- and
not the State -- can be found at fault for pre-Spill Act
discharges is at odds with the statute’s plain language, the
2
Legislature’s policy objectives, and our decision in Ventron. I
therefore respectfully dissent.
I.
In 1976, the Legislature passed the Spill Act, which
provided that “any person who has discharged a hazardous
substance shall be strictly liable, without regard to fault, for
all cleanup and removal costs.” L. 1976, c. 141, § 8(5)(c)
(emphasis added). The Spill Act’s definition of “person”
includes “the State of New Jersey and any of its political
subdivisions or agents.” L. 1976, c. 141, § 3(n) (codified at
N.J.S.A. 58:10-23.11b). That definition of “person” has not
changed during the Spill Act’s forty-year history.
In 1979, the Legislature amended the Spill Act, making the
State and any other person involved in a toxic discharge jointly
and severally liable and subject to contribution. See L. 1979,
c. 346, § 8(5)(c) (codified at N.J.S.A. 58:10-23.11g(c)(1)).
The Spill Act provides that “any person who has discharged a
hazardous substance, or is in any way responsible for any
hazardous substance, shall be strictly liable, jointly and
severally, without regard to fault, for all cleanup and removal
costs no matter by whom incurred.” N.J.S.A. 58:10-23.11g(c)(1)
(emphasis added). The Act also provides that “dischargers and
persons shall have a right of contribution against all other
dischargers and persons in any way responsible” for the
3
discharge. N.J.S.A. 58:10-23.11f(a)(2)(a) (emphasis added). In
accordance with N.J.S.A. 58:10-23.11f(a)(1), the NJDEP is
authorized to “direct [a] discharger to clean up and remove, or
arrange for the cleanup and removal of, the discharge.”
The 1979 amendment to the Spill Act also included a
retroactivity provision, stating that “the [NJDEP] . . . may
remove or arrange for the removal of any hazardous substance
which . . . [h]as been discharged prior to [April 1, 1977,] the
effective date of the act.” L. 1979, c. 346, § 7(b)(3)
(codified at N.J.S.A. 58:10-23.11f(b)). This Court in Ventron,
supra, determined that the strict-liability and joint-and-
several-liability provision of N.J.S.A. 58:10-23.11g(c) applies
to any “person” who has discharged a hazardous substance and is
retroactive to the period before passage of the Spill Act.1 94
N.J. at 497. The joint-and-several-liability and contribution
principles of Ventron apply here, as well, see N.J.S.A. 58:10-
23.11g(c)(1), because the State is a “person” within the
intendment of that statute, N.J.S.A. 58:10-23.11b.
The Legislature did not change the definition of “person”
in making the Spill Act retroactive, and we have no authority to
1 Ventron involved various private corporate entities that
discharged pollutants into Berry’s Creek before the effective
date of the Spill Act and were held jointly and severally liable
without regard to fault under N.J.S.A. 58:10-23.11g(c).
Ventron, supra, 94 N.J. at 484-86, 503.
4
do so. Our charge is to read the Spill Act as it is written.
Because there is no ambiguity about how the Legislature defined
the term “person,” there can be no doubt that the Legislature
intended the Spill Act to apply retroactively to the State. As
a consequence of the Legislature’s clear expression that the
Spill Act applies retroactively to the State, sovereign immunity
is a non-issue.
The majority acknowledges that private parties can be
jointly and severally liable for pre-Spill Act discharges and
can seek contribution from another liable party. Under the
majority’s reading of the statute, however, a private party
cannot seek contribution from the State when the State has joint
responsibility for a pre-Spill Act discharge. That
interpretation leads to the absurd result that when the State
and a private party are both responsible for a toxic discharge,
the private party is on the hook for the entire cleanup cost.
And that is so, even when the State is ninety percent
responsible for a discharge and the private party only ten
percent responsible. The unfairness of this outcome is all the
more flagrant because the NJDEP can select a site to be
remediated where a private party is required to clean up a toxic
spill primarily caused by the State.
The basic aim of allowing a right of contribution is to
allocate fault so that no party pays more than its percentage of
5
liability. See Magic Petroleum Corp. v. Exxon Mobil Corp., 218
N.J. 390, 403 (2014). This approach accords with basic notions
of “equity and natural justice.” Ibid. (quoting Sattelberger v.
Telep, 14 N.J. 353, 367-68 (1954)). The Spill Act allows one
discharger to seek contribution from another discharger. See
id. at 405. The right of contribution under the Spill Act
encourages a discharger to remediate contamination promptly and
effectively without “fear of bearing the entire cost of cleanup
when other parties were also responsible.” Id. at 403.
Exonerating the State from retroactive liability for remediating
a pre-Act toxic discharge, while all others remain jointly and
severally liable, does not accord with the Legislature’s
carefully crafted scheme of allocating fault equitably.
Resolving the issue before us does not require interpretive
acrobatics. A straightforward reading of the Spill Act and a
simple application of Ventron should have rendered an easy
answer to the question of the State’s liability.
II.
The State is the trustee of New Jersey’s natural resources
and is ultimately responsible for ensuring the remediation of
toxic contamination of our lands and waters through the Spill
Act. See N.J.S.A. 58:10-23.11a. The Legislature made clear
that the State should not be treated differently from other
dischargers of toxic pollutants who have contaminated the
6
environment, regardless of when our lands or waters were
despoiled.
Because I believe the majority has misconstrued the Spill
Act to reach a result never intended by the Legislature, I
respectfully dissent.
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