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New Jersey Dep't of Envtl. Protection v. Ventron Corp.

ELR Citation: 13 ELR 20837
Nos. No. A50/51, 463 A.2d 893/19 ERC 1505/94 N.J. 473, (N.J., 07/21/1983) Aff'd in part

The New Jersey Supreme Court upholds the retroactive liability provision of the Spill Compensation and Control Act and imposes strict joint and several liability on past owners of a mercury processing plant for the discharge of mercury into Berry's Creek in the Hackensack Meadowlands.

First, the court holds that past landowners are strictly liable under common law because toxic waste storage and disposal is an abnormally dangerous activity and that the four defendants are jointly liable. Next, the court notes that when defendants' actions occurred, they were in violation of the predecessors of the current Spill Act. The court holds that the four defendants' actions constituted a "substantial and imminent threat to the environment," thus making them strictly liable under the retroactivity provision of the Spill Act, as amended in 1979. The court applies the 1979 Act even though it became effective subsequent to the decision of the trial court. It rules that the express retroactive liability provision is constitutional because any impairment of private property rights is outweighed by the benefit to public health and safety. Furthermore, the Spill Act primarily allows new remedies for activities recognized by previous common and statutory law as tortious.

Although Ventron Corp. cooperated with the state in an earlier, unsuccessful cleanup attempt, the court refuses to estop the state from imposing liability on Ventron. Also, it holds that Velsicol Chemical Corp. is liable under the Spill Act for the actions of its wholly owned subsidiary, not because the circumstances justify "piercing the corporate veil" but because the Spill Act holds all persons liable who are "in any way responsible." The court rules that Velsicol had control over its subsidiary's activities and is therefore responsible. The court holds that the Spill Act imposes joint and several liability on the four defendants, in effect making Ventron and Velsicol liable as the two entities still in existence. The court affirms the lower court holding that Ventron fraudulently concealed the condition of the land from the present owners. However, the court denies the present owners attorney fees for the cost of defending the action brought against them by the state because fees are not expressly authorized by statute, court rule, or contract.

[A related decision is published at 12 ELR 20281 — Ed.]

Counsel for Plaintiff
Ronald P. Heksch, Michael R. Cole; Irwin I. Kimmelman, Attorney General
Dep't of Law and Public Safety
State House Annex, 2d Floor, Trenton NJ 08625
(609) 292-4925

Counsel for Defendants
Adrian M. Foley Jr., John F. Neary
Connell, Foley & Geiser
Gateway I, Newark NJ 07102
(201) 643-2060

Murray D. Brochin, Deanne Wilson Plank
Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan
80 Park Plaza, Newark NJ 07102
(201) 624-4600

Harry R. Hill Jr., Michael J. Nizolek
Backes, Waldron & Hill
28 W. State St., Trenton NJ 08608
(609) 396-8256

Pollock, J., joined by Clifford, Schreiber, Handler, and Garibaldi, JJ.

Justices Clifford, Schreiber, Handler, and Garibaldi join in this opinion.

Chief Justice Wilentz and Justice O'Hern did not participate.