No Safe Harbor: Can New Jersey Face Liability under State Spill Act?

Be careful what you wish for. That may be the message of the New Jersey Appellate Division’s September 23, 2015, opinion in NL Industries, Inc. v. State of New Jersey, No. A-0869-14T3. Affirming a “thoughtful and erudite” 2014 Law Division opinion by Judge Douglas K. Wolfson, the appellate court held that the onerous liability regime of the 1976 Spill Compensation and Control Act (commonly known as the Spill Act), which imposes strict joint and several liability for cleanups on both the dischargers of hazardous substances and on the much broader class of parties “in any way responsible” for the hazardous substances, is equally applicable to the state. As a result, the state may be responsible for a portion of the remediation of a contaminated site on the shoreline of Raritan Bay that will likely cost more than $75 million. The story is far from over, however: On January 15, 2016, the New Jersey Supreme Court granted the state leave to appeal from the Appellate Division’s decision.