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In NRD claim, trial Court dismisses common law causes of action of nuisance and trespass under the statute of limitations as they are not “environmental laws” and there was no “continuing tort.”

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In NJDEP v. Saint Gobain Plastics Corp. DiFrancesco, Bateman succeeded in having the State’s common law claims for natural resource damages (NRD) dismissed under New Jersey’s 10 year statute of limitations for the State’s assertion of claims: N.J.S.A. 2A:14A-1.2. Contamination was discovered at defendant’s property in 1991. The defendant entered into an Administrative Consent Order and commenced site remediation immediately. The remedial efforts have continued to date. The State was aware of the discharge in 1991, but did not institute a claim for NRD until 2005. Although defendant was previously held liable under the New Jersey Spill Act, the defendants sought summary judgment on the State’s common law claims for nuisance and trespass. Judge LaConte of the Superior Court of Passaic County ruled in favor of defendant, holding that the common law claims for NRD do not constitute claims under the “State’s environmental laws” as defined in N.J.S.A. 58:10B-17.1.c., and therefore, the limitations period would not be extended for 5 years and 6 months from January 1, 2002 as provided for in section N.J.S.A. 58:10B-17.1.b. The Court concluded that since the statute extending the time for filing referred to nine specific statutes, and then referred to ,”… any other law or regulation by which the State may compel a person to perform remediation activities on contaminated property…” that the prior language demonstrated the intent of the legislature to limit the extended time period to statutes, not common law causes of action that may be used for purposes other than environmental protection.

Judge LaConte also rejected the State’s alternative theory that the continued presence and alleged migration of contaminants in the ground water constituted a continuing tort. The Court concluded that the “curative action” occurred when the seepage pit was removed in1991 and, as a result, no “new” contamination occurred. As a result, Judge LaConte ruled that “[a]lthough the effects of the discharge are still present…and may persist for decades, the alleged nuisance and trespass caused by the defendants no longer continued after 1991.” The Judge observed that if the tort was deemed to continue until the “end of remediation, long after the cause of the contamination had been removed, it would provide plaintiffs with an almost infinite amount of time to file common law causes of action.” In fact, he noted, this would even provide the State more time to file common law claims than had been extended by the legislature in N.J.S.A. 58:10B-17.1. The decision is presently unreported. A copy can be obtained from Steven A. Kunzman, who represents Saint-Gobain in the matter.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services.

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