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Perth Amboy, City of v. Madison Indus.

ELR Citation: 13 ELR 20554
Nos. Nos. A-1127-81T3, -1276-81T3, (N.J. Super. Ct. App. Div., 04/21/1983)

The court affirms a damage award against two polluters for contamination of a city water supply in violation of the New Jersey Spill Compensation and Control and Water Pollution Control Acts but reverses on the allocation of liability, ruling that the polluters be held jointly and severally liable. The trial court, holding defendants severally liable, had ordered them to pay the cost of specified cleanup measures, which the court fixed at $5.2 million, apportioned according to their contribution to the problem. In addition, the trial court had awarded the city of Perth Amboy $100,000 for the temporary loss of its watershed. The court first upholds the trial court's choice of cleanup programs, ruling that although the plan is not guaranteed success, substantial evidence supports the court's choice. The court then rejects the city's challenge to the trial court's award of temporary rather than permanent damages for loss of its watershed, noting that the city may seek additional damages if the restoration fails or if costs of obtaining replacement water rise.

The court rules that appellants should be held jointly and severally liable. Under New Jersey common law either appellant, rather than the public, would be held fully liable because the act of either would have necessitated a restoration program, and the entire program must be completed to restore the water supply. Also, the Spill Compensation and Control Act calls for joint and several strict liability. However, the court also rules that as between appellants, the trial court correctly apportioned damages. The court then rules that the trial court erred in fixing the damages before the actual cost of cleanup was known. The court notes that state laws will protect the appellants from paying for unreasonable cleanup expenses. Finally, the court rules that it was proper for the trial court to hire an independent expert and to bill appellants for the expert's fees.

Counsel for Appellant
William J. Bigham, Vincent J. Paluzzi
Sterns, Herbert & Weinroth
186 W. State St., Trenton NJ 08607
(609) 392-2100

Michael L. Rodberg, Murray D. Brochin
Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan
65 Livingston Ave., Roseland NJ 07068
(201) 992-8700

Counsel for Respondents
Albert W. Seaman
272 High St., P.O. Box 868, Perth Amboy NJ 08862
(201) 826-2100

Steven R. Gray, Deputy Attorney General; Deborah T. Poritz
Division of Environmental Protection
Dep't of Law & Public Safety, Justice Complex Bldg., 25 Market St., Trenton NJ 08625
(609) 292-4919

Before Bischoff, Coleman, and Gaulkin, JJ.