On September 26, 2012, the New Jersey Supreme Court handed down a major decision under the New Jersey Spill Compensation and Control Act (“Spill Act”) in NJDEP v. Dimant. The Court held that the New Jersey Department of Environmental Protection (“DEP”) could not assert a damage claim against a discharger under the Spill Act without demonstrating a nexus or link between a discharge by the defendant and the contamination that was the subject of the claim.
DEP sought to recover the costs to remediate groundwater in residential wells contaminated by perchlorethylene (“PCE”), a solvent commonly used by dry cleaners. The groundwater contamination was located near a site that had been operated by a dry cleaner for just over one year in the late 1980s. DEP had previously conducted a single inspection of the dry cleaner site and observed a pipe at the premises, which DEP noted was dripping PCE-contaminated liquid onto the pavement
DEP took the position that the mere fact of the dripping liquid was enough to impose liability on the dry cleaner for the contaminated groundwater in the nearby wells. The Court, however, held that DEP had failed to show a “reasonable, tenable basis” to connect the dripping fluid to the contaminated groundwater.
The Court ruled that to establish a claim for relief under the Spill Act, a genuine nexus must be established between a discharge of hazardous substances and the specific contamination for which damages are sought. It was not enough to prove that the hazardous substance discharged was the same as the contamination at issue. DEP was required to demonstrate an actual link between the discharge and the contamination.
The Spill Act imposes joint and several liability on a person who is in any way responsible for a discharged hazardous substance. The ruling in Dimant establishes an important factual inquiry to be made by anyone facing possible clean-up liability under the Spill Act.