Nl Industries, Inc. v. State(076550)

• Court: Supreme Court of New Jersey
• Decided: March 27, 2017
• Docket: A-44-15
• Status: Published

Opinion

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)

NL Industries, Inc. v. State of New Jersey (A-44-15) (076550)

Argued October 26, 2016 -- Decided March 27, 2017

LaVecchia, J., writing for a majority of the Court.

In this appeal, the Court determines whether the New Jersey Spill Compensation and Control Act (Spill Act), N.J.S.A. 58:10-23.11 to -23.24, retroactively abrogated the State’s sovereign immunity for state action taken prior to the Act’s 1977 effective date.

In September 1968, Sea-Land Development Corporation (Sea-Land) notified the State of its plans to protect Laurence Harbor from future erosion by the construction of a seawall, which would be made partly with “slag,” an industrial byproduct. Sea-Land received a riparian land grant and building permit for the seawall, and completed the project during the early 1970s. During the construction, an Old Bridge Township official informed the NJDEP that slag was being dumped into Raritan Bay. At the time, the State acknowledged ownership of some of the land on which Sea-Land built the seawall; from the record, it does not appear that further action was taken at the time.

In 2007, the NJDEP detected contamination along the seawall in Laurence Harbor and reported its findings to the United States Environmental Protection Agency (EPA) in June 2008. In 2014, the EPA demanded that NL Industries, Inc. (NL), which had operated a factory in Perth Amboy that created slag as a byproduct, remediate the site based on the assertion that Sea-Land had obtained from NL slag used in the Laurence Harbor projects.

NL filed a complaint seeking contribution from the State under the Spill Act, alleging that the State caused or contributed to the Raritan Bay contamination in its roles as regulator and riparian landowner. The State filed a motion to dismiss based on: (1) sovereign immunity; (2) the immunities and procedural protections in the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12.3; and (3) NL’s failure to state a claim.

The trial court denied the State’s motion. 442 N.J. Super. 428 (Law Div. 2014). Combining the Spill Act’s abrogation of sovereign immunity with its interpretation that this Court recognized a legislative intent that the Act be applied retroactively in Department of Environmental Protection v. Ventron Corp., 94 N.J. 473 (1983), the trial court concluded, first, that sovereign immunity for pre-Act discharges was waived. Second, the trial court found that the Spill Act and the TCA “were enacted at different times for demonstrably different reasons” and declined to graft onto the Spill Act the immunities and procedural protections of the TCA. Finally, the trial court rejected the State’s argument that the complaint failed to state a claim.

On leave to appeal, the Appellate Division affirmed the denial of the motion substantially for the reasons set forth by the trial court. 442 N.J. Super. 403. The Court granted the State’s motion for leave to appeal.

HELD: The Spill Act contains no clear expression of a legislative intent to waive the State’s sovereign immunity retroactively to cover periods of State activity prior to the Spill Act’s enactment. Therefore, the State’s sovereign immunity prevails against Spill Act contribution claims based on State activities that occurred prior to the original effective date of that Act.

1. In 1976, the New Jersey Legislature enacted the Spill Act. From its origin, the Act provided that “any person” responsible for a discharge of a hazardous substance into State waters or onto lands leading to those waters “shall be strictly liable . . . for all cleanup and removal costs,” and defined “any person” to include “the State of New Jersey.” The inclusion of the State in the definition of “person” signaled the Legislature’s clear intention to include the State as a party responsible for its hazardous discharges and the waiver of sovereign immunity. Significantly, the Act’s definition of “person” as inclusive of the State has never been altered. (pp. 10-14) 2. In 1979, the Legislature amended the Spill Act in several important ways. The Legislature opened up the Fund’s use for remediation of spills that occurred before the Spill Act was enacted and coupled that action with the expansion of NJDEP authority to seek contribution from non-public funding sources: namely, parties in any way responsible for the discharge that the NJDEP removed or was removing. In that pointed way, liability was expanded to permit the State to seek contribution from persons responsible for, among other discharges, those pre-Spill Act enactment discharges that the NJDEP chose to address. In that manner, retroactivity found express authorization in the Act, but only under N.J.S.A. 58:10-23.11f(b)(3). (pp. 15-18)

3. It is debatable from the combination of amendments to the Act in 1991, and accompanying legislative statements, whether the change in the first sentence of N.J.S.A. 58:10-23.11g(c)(1)—to “no matter by whom incurred”— signaled a broadly intended opening-up of contribution actions against any and all dischargers, including the State, for hazardous discharges that preceded enactment of the Spill Act. (pp. 18-20)

4. It is an essential aspect of sovereignty to be free from suit by private citizens seeking money damages unless the State has given its consent, which requires a clear legislative expression of intent to be subject to suit. A legislative waiver of sovereign immunity must be expressed clearly and unambiguously, and a retroactive waiver of sovereign immunity requires the clearest of expression. (pp. 20-23)

5. The inclusion of the State in the definition of “person” subject to the Act when first enacted did not render the State liable for any pre-enactment activities. The Act, as originally passed, did not address discharges that predated enactment. Although the Legislature did not subsequently alter the definition of “person” to exclude the State despite the amendment to permit private contribution actions for pre-Act discharges, that failure does not provide any convincing answer to the question of retroactive abrogation of sovereign immunity. (pp. 24-25)

6. The question is not whether it is arguable that the Legislature passed an amendment that could be construed to provide a pathway to imposing liability on the State in a private contribution action based on the State’s pre-Act activities; rather, the Court must be able to conclude that the Legislature clearly and unambiguously expressed its intention for that result to obtain. The Court does not find the deliberate clarity necessary to reach that conclusion and therefore parts ways with the decisions reached by the trial court and Appellate Division. (pp. 25-27)

7. Ventron underscored the Court’s awareness that the Act’s retroactivity was conditioned—it pertained only to those pre-Act discharges that the State cleaned up and sought reimbursement for from private parties. Far from supporting the position taken in this action, Ventron highlights the limited nature of the retroactivity permitted under the 1979 amendment. Post-Ventron, other courts of this State have recognized that not all of the Act’s provisions are intended to be retroactive. (pp. 27-30)

8. Amendments made to the Spill Act in 1993 do not shore up NL’s position. That the Legislature chose to add to the State’s defenses for discharges on property that the State subsequently acquired does not address legislative intent regarding a retroactive stripping of the State’s sovereign immunity for pre-1977 liability. (pp. 31-32)

9. The trial court, affirmed by the Appellate Division, discerned no evidence that the Legislature intended to require the State’s liability under the Spill Act to be harmonized with the procedural protections provided for claims under the TCA. The Court agrees. Further, in response to the State’s argument that it should not be held liable when exercising its regulatory responsibilities or for its role as a sovereign, the Court finds no clear evidence that the Act was intended to strip the State of immunity for the discretionary governmental activities of a sovereign. (pp. 32-34)

The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the trial court for further proceedings consistent with the holding of the Court.

JUSTICE ALBLIN, DISSENTING, expresses the view that, because there is no ambiguity about how the Legislature defined the term “person,” there can be no doubt that the Legislature intended the Spill Act to apply retroactively to the State, and sovereign immunity is a non-issue. Exonerating the State from retroactive liability for remediating a pre-Act toxic discharge, while all others remain jointly and severally liable, does not accord with the Legislature’s carefully crafted scheme of allocating fault equitably, in Justice Albin’s view.

CHIEF JUSTICE RABNER AND JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, AND TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion.

2 SUPREME COURT OF NEW JERSEY A-44 September Term 2015 076550

NL INDUSTRIES, INC.,

Plaintiff-Respondent,

v.

STATE OF NEW JERSEY,

Defendant-Appellant.

Argued October 26, 2016 – Decided March 27, 2017

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 442 N.J. Super. 403 (App. Div. 2015).

David S. Frankel, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General of New Jersey, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel).

Christopher R. Gibson argued the cause for respondent (Archer & Greiner, attorneys; Mr. Gibson and Patrick M. Flynn, on the briefs).

JUSTICE LaVECCHIA delivered the opinion of the Court.

Plaintiff NL Industries, Inc. (NL), filed a claim against

the State of New Jersey seeking contribution under the New

Jersey Spill Compensation and Control Act (Spill Act), N.J.S.A.

58:10-23.11 to -23.24, for environmental-contamination cleanup

costs for a site in the Laurence Harbor region of Old Bridge

Township. The claim is based on State activity that occurred

1 prior to enactment of the Spill Act. NL alleges that the State

was responsible for pollutant discharge for two reasons: first,

because the State was the owner of riparian land that became

contaminated and polluted the Laurence Harbor shoreline; and

second, because the State, acting as a regulator through the New

Jersey Department of Environmental Protection (NJDEP), approved

action related to the property of a third party that similarly

is alleged to be responsible for the Laurence Harbor

contamination.

The State unsuccessfully sought dismissal of NL’s claim.

This appeal is before us based on our grant of the State’s

motion for leave to appeal raising novel questions. The

fundamental issue is whether the Spill Act retroactively

abrogated the State’s sovereign immunity for state action taken

prior to the Act’s 1977 effective date. If we determine that

the State can be liable for its activities during the pre-Spill

Act time period, then we must decide two other questions that

are presented in this appeal: whether the State can be liable

under the Spill Act for actions taken as a regulator; and

whether State liability under the Spill Act must be harmonized

with the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to

12.3, which, among other things, provides the State with

immunity from tort claims for certain categories of

discretionary activities.

2 There is no dispute in this appeal that, effective with

enactment of the Spill Act, the State is responsible under the

Act for its discharges because the State is included in the

Spill Act’s definition of a “person” potentially liable.

N.J.S.A. 58:10-23.11b. The contest here centers on whether a

series of subsequent amendments made to the Spill Act, which

allowed the Act some retroactive application and which created

opportunities for private contribution actions, have rendered

the State liable for activities that occurred before the Act

became effective.

Based on careful review of the Act as enacted and as

serially amended, we conclude that the Spill Act contains no

clear expression of a legislative intent to waive the State’s

sovereign immunity retroactively to cover periods of State

activity prior to the Spill Act’s enactment. Absent a clear and

specific indication that the Legislature intended to impose a

retroactive liability that could have profound impact on the

fiscal affairs of the State, retroactive waiver of the State’s

sovereign immunity for Spill Act contribution claims concerning

pre-Act activities will not be inferred.

Therefore, on the fundamental issue in this appeal, we hold

that the State’s sovereign immunity prevails against Spill Act

contribution claims based on State activities that occurred

prior to the original effective date of that Act. The judgment

3 of the Appellate Division is reversed, and this matter is

remanded to the trial court for proceedings consistent with the

holding of this Court.

I.

Because this case comes before us on interlocutory appeal

from the denial of the State’s motion to dismiss plaintiff’s

complaint, we rely on facts gleaned from the pleadings.1 This

matter is factually and procedurally complex; we recite those

facts and procedural steps that are necessary to place the legal

issue in context.

A.

The case concerns the contamination of the Laurence Harbor

shoreline, a part of Raritan Bay, in Old Bridge Township

(Township). In the early 1960s, the State of New Jersey, along

with the Township, retained the services of the United States

Army Corps of Engineers (Army Corps of Engineers) to build

structures to protect the Laurence Harbor beach from erosion.

One such protective measure included the building of a levee and

the placement of beach fill on riparian land owned by the State.

The Army Corps of Engineers completed the project in 1966.

1 In the posture of this appeal, we treat hospitably all of NL’s factual allegations. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). 4 In September 1968, Sea-Land Development Corporation (Sea-

Land), which had earlier acquired land in Laurence Harbor for

development, notified the State of its plans to protect Laurence

Harbor from future erosion by the construction of a seawall,

which would be made partly with “slag,” an industrial byproduct.

Sea-Land needed a grant of riparian land from the State in order

to construct its wall.

In December 1969, the Natural Resources Council of the

NJDEP approved a riparian land grant to Sea-Land subject to

several conditions, including that Sea-Land build a beach,

consistent with Army Corps of Engineers regulations, and allow

public access to the beach.2 At around the same time, acting

through the NJDEP, the State, with the approval of the Township

and the Army Corps of Engineers, issued a permit to Sea-Land to

build the seawall. Sea-Land accepted the conditions of the

riparian grant in 1970 and, thereafter, began construction.

Sea-Land completed the project during the early 1970s,

using slag on both the seawall and an existing jetty that the

Army Corps of Engineers had constructed during the 1880s. The

seawall was situated on land owned by Sea-Land as well as land

2 As previously mentioned, we recite the facts that were pled in the complaint; however, we note that the NJDEP was established in 1970 and, therefore, this procedural history is actually referencing the successor agencies to those that took these actions in 1969. See L. 1970, c. 33. 5 owned by the State, and the State held, and still retains, an

ownership interest in the jetty.

During the construction, a Township official informed the

Chief of the NJDEP Bureau of Solid Waste Management that slag

was being dumped into Raritan Bay. During the fall of 1972,

various divisions of the NJDEP examined the reported information

and, in March 1973, the State, the Township, and the Army Corps

of Engineers met to discuss the slag issue. At the time, the

State acknowledged ownership of some of the land on which Sea-

Land built the seawall; from the record, it does not appear that

further action was taken at the time.

In 2007, the NJDEP detected contamination along the seawall

in Laurence Harbor. The NJDEP reported its findings to the

United States Environmental Protection Agency (EPA) in June

2008. The EPA investigated and then, in 2009, placed Laurence

Harbor on a national list of contaminated sites. In May 2013,

the EPA issued a Record of Decision on the matter, selecting a

cleanup and removal remedy for the hazardous material in Raritan

Bay, including the Laurence Harbor seawall and jetty, that was

estimated to cost $79 million overall.

6 In January 2014, the EPA3 demanded that NL, which had

operated a factory in Perth Amboy that created slag as a

byproduct, remediate the site based on the assertion that Sea-

Land had obtained from NL slag used in the Laurence Harbor

projects. NL thereafter filed a state court complaint seeking

contribution from the State under the Spill Act, alleging that

the State caused or contributed to the Raritan Bay contamination

in its roles as regulator and riparian landowner.

B.

Procedurally, NL’s claim unfolded through motion practice.

With discovery not yet completed, the State filed a motion to

dismiss NL’s claim based on: (1) sovereign immunity; (2) the

common law immunities codified in the TCA, as well as the TCA’s

procedural protections; and (3) NL’s failure to state a claim

against the State.4

The trial court denied the State’s motion. NL Indus., Inc.

v. State, 442 N.J. Super. 428, 449 (Law Div. 2014), aff’d, 442

N.J. Super. 403 (App. Div. 2015). First, the court determined

that the Spill Act provided a clear and unambiguous waiver of

3 The EPA acted pursuant to its authority under Section 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C.A. §§ 9601 to 9675. 4 The State filed an answer and counterclaim later in this matter, after its motion to dismiss was denied by the trial court and while its motion for leave to appeal to the Appellate Division was pending. 7 the State’s sovereign immunity. Id. at 442. The court noted

that the State is listed as a potentially liable “person,” and

that the Legislature did not “immunize or exclude” the State

from the list of “persons” from whom a discharger may seek

contribution when amending the Act in 1991 to allow for

contribution actions. Ibid. For further support, the trial

court relied on Department of Environmental Protection v.

Ventron Corp., 94 N.J. 473 (1983), in which Spill Act liability

was imposed for the pre-enactment activities of private

responsible parties sued by the NJDEP to recover costs expended

by the Spill Fund to clean up those private parties’ pre-Act

discharges. Id. at 441. The trial court cited Ventron for the

proposition that this Court has recognized a legislative intent

that the Act be applied retroactively. Ibid. Combining the

Act’s abrogation of sovereign immunity with that interpretation

of Ventron’s holding, the trial court concluded that the State’s

sovereign immunity from liability for pre-Act discharges was

waived. Id. at 441-42.

Second, the trial court declined to read the Spill Act in

pari materia with the TCA and accordingly refused to bar NL’s

claim based on noncompliance with the TCA’s procedural

requirements. Id. at 446-47. The court found that the two

statutes “were enacted at different times for demonstrably

different reasons.” Id. at 445. Determining it unnecessary to

8 harmonize the two statutory schemes, the court declined to graft

onto the Spill Act the immunities and procedural protections of

the TCA. Id. at 446-47.

Finally, the trial court held that NL’s factual allegations

established a reasonable nexus between the State’s conduct and

the slag contamination and rejected the State’s argument that

the complaint failed to state a claim. Id. at 448-49.

On leave to appeal granted to the State, the Appellate

Division affirmed the denial of the State’s motion in a brief

opinion that relied substantially on the reasons set forth by

the trial court. NL Indus., Inc. v. State, 442 N.J. Super. 403,

404-05 (App. Div. 2015). We granted the State’s motion for

leave to appeal from the Appellate Division judgment.

The issues raised in the State’s motion for leave to appeal

were set forth at the outset of this opinion. The parties’

arguments before this Court are substantially the same as those

presented to the courts below. To the extent elaboration is

required, the arguments are included directly in our analysis of

this matter.

II.

We begin with the fundamental statutory question before us

-- whether the Spill Act retroactively strips the State of its

sovereign immunity for pre-Spill Act activities. To address

that question, we turn to the Spill Act’s relevant provisions

9 when first enacted and how those provisions are illuminated

through the amendments made to the Act.

1.

In 1976, the New Jersey Legislature enacted the Spill Act.

L. 1976, c. 141 (codified at N.J.S.A. 58:10-23.11 to –23.24).

The innovative nature and breadth of that enactment has been

examined by this Court before. See, e.g., Morristown Assocs. v.

Grant Oil Co., 220 N.J. 360, 364-65 (2015) (collecting cases).

From its origin, the Act provided that “any person”

responsible for a discharge of a hazardous substance into State

waters or onto lands leading to those waters “shall be strictly

liable . . . for all cleanup and removal costs.” L. 1976, c.

141, § 8(c). Section 8 of the original enactment rendered the

Act’s newly created non-lapsing fund (Spill Fund or the Fund),

see L. 1976, c. 141, § 10, strictly liable, without fault, for

all costs of cleanup and removal of such discharges and for all

direct and indirect damages stemming from the removal of

hazardous discharges, L. 1976, c. 141, § 8(a). Removal and

cleanup activities were placed under NJDEP control through

Section 7 of the Act. See L. 1976, c. 141, § 7 (codified at

N.J.S.A. 58:10-23.11f). Section 8 established the liability

provisions of the Spill Act (codified at N.J.S.A. 58:10-23.11g).

10 From its inception, the Act defined “any person” to include

“the State of New Jersey.” L. 1976, c. 141, § 3(n) (codified at

N.J.S.A. 58:10-23.11b). The inclusion of the State in the

definition of “person” signaled the Legislature’s clear

intention to include the State as a party responsible for its

hazardous discharges and brought about the waiver of sovereign

immunity for this new breed of statutory liability that repealed

and supplanted previous water-pollution legislation. See

Ventron, supra, 94 N.J. at 494-97 (canvassing history of state

anti-water-pollution statutes leading to Spill Act). The

predecessor statute to the Spill Act had not included the State

in its definition of a liable “person.” See L. 1971, c. 173,

§ 3(g) (omitting “State” from “persons” subject to predecessor

Water Quality Improvement Act of 1971).

The Act defined “discharge” as an “intentional or

unintentional action or omission resulting in the releasing . .

. of hazardous substance.” L. 1976, c. 141, § 3(h) (codified at

N.J.S.A. 58:10-23.11b). A unique structure was created for

addressing the prompt remediation of hazardous substances

discharged “into the waters of the State or onto lands from

which [those substances] might flow or drain into” such waters.

Ibid. The Legislature created a Spill Fund “to finance . . .

cleanup of oil spills and hazardous-waste discharges and to

compensate” for damages caused by those discharges. Buonviaggio

11 v. Hillsborough Twp. Comm., 122 N.J. 5, 8 (1991) (citing

N.J.S.A. 58:10-23.11a); see id. at 8-10 (describing history of

revolving fund established for cleanups and damages and how

subsequent legislative alterations expanded its fiscal base).

A Fund administrator controlled disbursements from the Fund

and, originally, was authorized to seek reimbursement to the

Fund from parties responsible for use of Fund monies for cleanup

and removal costs; later, broad responsibility was transferred

to the NJDEP, which became responsible for operation and

implementation, as well as protection of the Fund’s purse. See

generally id. at 9-10. Cleanup and removal costs, placed under

the control of the NJDEP, were defined originally in the Act as

all costs associated with a discharge incurred by the State or its political subdivisions or their agents or any person with written approval from [the NJDEP] in the (1) removal or attempted removal of hazardous substances or, (2) taking of reasonable measures to prevent or mitigate damages to the public health, safety, or welfare . . . .

[L. 1976, c. 141, § 3(d).]

Thus, as initially created, the Spill Act established a

scheme by which “most cleanup actions would be conducted by DEP

using monies from the Spill Fund where needed.” Morristown

Assocs., supra, 220 N.J. at 375. The Act made “[t]he fund . . .

strictly liable, without regard to fault, for all cleanup and

removal costs.” L. 1976, c. 141, § 8(a). Section 7 of the Act

12 authorized the NJDEP to draw from monies available in the Fund

to remove or to arrange for the removal and cleanup of hazardous

substances, and to minimize the damage caused by the discharge.

And the Fund administrator, later the NJDEP, was authorized to

seek reimbursement to the Fund from parties responsible for the

discharge, if the discharger did not clean up his or her own

contamination pursuant to a plan approved by the NJDEP.

2.

Significantly for purposes of this appeal, the Act’s

definition of “person” as inclusive of the State has never been

altered. The unchanging nature of that term within the Spill

Act features prominently in NL’s argument in this matter.

Because NL’s position was adopted by the trial court and the

Appellate Division, whose decision we now review, we begin by

summarizing NL’s arguments.

NL contends that the plain language of the Spill Act’s

definition of a “person,” which includes the State among

entities potentially responsible for a hazardous discharge,

supports its argument that the State may now be held to be

retroactively liable for pre-Act discharges. NL maintains that

because the Act has been amended to permit private contribution

actions against a potentially responsible party for a discharge

that predates passage of the Act, such an action may now be

brought against the State like any other “person” liable under

13 the Act. Based on its plain reading of the current version of

the Spill Act, particularly its provisions related to

contribution actions and the definition of “person,” NL contends

that the Legislature has authorized a retroactive waiver of the

State’s sovereign immunity for pre-Act activities by the State

that relate to discharges in Laurence Harbor. NL also contends

that this Court’s opinion in Ventron supports its position.

The State, on the other hand, contests the correctness of

NL’s plain language interpretation. The State further argues

that NL misinterprets the meaning of the Legislature’s

amendments to the Act and how those alterations fit together

concerning the State’s liability. Also, the State maintains

that Ventron is being overextended in NL’s argument. Moreover,

the State asserts that a retroactive waiver of sovereign

immunity is strongly disfavored and requires the clearest of

showings to demonstrate such a legislative intent. That clarity

of intent is missing here, according to the State.

The merits of the arguments advanced require an evaluation

of the series of amendments that are asserted to have authorized

retroactive application of State liability under the Spill Act.

We next trace the history of the pertinent amendments.

14 In 1979, the Legislature amended the Spill Act in several

important ways.

Section 8 of the Act -- the provision addressing liability

-- was amended to impose strict liability on “[a]ny person who

has discharged a hazardous substance or is in any way

responsible for any hazardous substance which [the NJDEP] has

removed or is removing” pursuant to Section 7(b) of the 1979

amendments. L. 1979, c. 346, § 5(c) (codified at N.J.S.A.

58:10-23.11g(c)(1)) (new material in bold and underlined).

Section 7 of the Act -- the provision addressing NJDEP

authority under the Act -- was modified to clarify the nature of

the NJDEP’s responsibility for cleanups. L. 1979, c. 346, § 4

(codified at N.J.S.A. 58:10-23.11f). With additions in bold and

underlined and omissions in angle brackets, the provision was

amended to read as follows:

Whenever any hazardous substance is discharged, the department [i.e., the NJDEP] may in its discretion act to remove or arrange for the removal of such discharge or may direct the discharger to remove, or arrange for the removal of, such discharge<, unless it determines such removal will be done properly and expeditiously by the owner or operator of the major facility or any source from which the discharge occurs>. Any discharger who fails to comply with such a directive shall be liable to the [NJDEP] in an amount equal to three times the cost of such removal.

[L. 1979, c. 346, § 4(a) (codified at N.J.S.A. 58:10-23.11f(a)(1)).]

15 The collective effect of those amendments converted the

NJDEP’s mandatory cleanup duty into a discretionary duty, in

practical recognition that the NJDEP could not effectively

manage the remediation of all hazardous discharges implicated

under the Spill Act. The amendments enabled the NJDEP to order

a responsible party to commence cleanup in its stead. The

trebling of costs, should a discharger fail to comply with the

NJDEP’s order, incentivized compliance with the NJDEP’s expanded

range of cleanup options.

In the same set of amendments, the Legislature further

amended Section 7 -- again, the section addressing NJDEP

authority -- to include a wholly new provision allowing the

NJDEP to clean up and remediate spills that occurred prior to

the Act’s original passage. That 1979 addition addressed, for

the first time, a retroactive application of the Act to

hazardous discharges that occurred before the Act’s enactment.

The Legislature inserted this important new authorization for a

retroactive application of the Spill Act not into the liability

section -- Section 8 of the Act -- but rather into Section 7,

thereby amplifying the NJDEP’s authority to remediate certain

ancient discharges, subject to the availability of Spill Fund

monies. The new subsection added the following:

b. Notwithstanding any other provisions of [the Spill Act], the [NJDEP], after notifying

16 the administrator and subject to the approval of the administrator with regard to the availability of funds therefor, may remove or arrange for the removal of any hazardous substance which:

. . . .

(3) Has been discharged prior to the effective date of the act to which this act is amendatory, if such discharge poses a substantial risk of imminent damage to the public health or safety or imminent and severe damage to the environment.

[L. 1979, c. 346, § 4(b) (codified at N.J.S.A. 58:10-23.11f(b)).5]

That latter addition -- clarifying that a retrospective

application to the Act was permissible -- constitutes the

legislative step that first allowed Fund monies to be used to

clean up discharges that occurred before the enactment of the

Spill Act. See Buonviaggio, supra, 122 N.J. at 10 (citing

N.J.S.A. 58:10-23.11f(b)(3)). An accompanying committee

statement memorialized the 1979 amendment’s aim to “open the

fund to ancient . . . spills which pose a threat to the public

health and safety.” Gen. Assem. Agric. and Envtl. Comm.,

Statement to Gen. Assem. No. 3542 (1979).

Thus, the 1979 amendments settled an unresolved question

about whether the State was authorized to expend Fund resources

5 The language in Section 7(b) was later simplified to refer to discharges that occurred “prior to the effective date of P.L. 1976, c. 141.”

17 remediating discharges that predated the Act’s existence. See

Atl. City Mun. Utils. Auth. v. Hunt, 210 N.J. Super. 76, 87

(App. Div. 1986); Dep’t of Envtl. Prot. v. J.T. Baker Co., 234

N.J. Super. 234, 247 (Ch. Div. 1989) (noting importance of

clarity provided by 1979 amendments to Spill Act), aff’d, 246

N.J. Super. 224 (App. Div. 1991). Notably, when the Legislature

opened up the Fund’s use for remediation of spills that occurred

before the Spill Act was enacted, the Legislature coupled that

action with the expansion of NJDEP authority to seek

contribution from non-public funding sources: namely, parties

in any way responsible for the discharge that the NJDEP removed

or was removing. See L. 1979, c. 346, §§ 4, 5. In that pointed

way, liability was expanded to permit the State to seek

contribution from persons responsible for, among other

discharges, those pre-Spill Act enactment discharges that the

NJDEP chose to address. In that manner, retroactivity found

express authorization in the Act, but only under N.J.S.A. 58:10-

23.11f(b)(3).

The other amendment of significance in our analysis

occurred in April 1991, when the Legislature revisited the

liability section of the Spill Act. See N.J.S.A. 58:10-

23.11g(c)(1). That amendment is set forth in full, with

additions in bold and underlined and omissions in angle brackets

18 to facilitate identification of the alterations to the

provision.

Any person who has discharged a hazardous substance, or is in any way responsible for any hazardous substance , shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by whom incurred. Such person shall also be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs incurred by the [NJDEP] or a local unit pursuant to [N.J.S.A. 58:10-23.11f].

[L. 1991, c. 85, § 4(c) (codified at N.J.S.A. 58:10-23.11g(c)(1)).]

In addition to that amendment, the 1991 amendment expanded

Section 7 to permit the expenditure of Fund monies to local

governmental units, when acting in an emergency response

situation and with the approval of the NJDEP, for the removal of

hazardous substances. L. 1991, c. 85, § 3 (codified at N.J.S.A.

58:10-23.11f(b)); see also id. at §§ 5, 6 (amending N.J.S.A.

58:10-23.11o and -23.11q to permit Fund administrator to seek

fund reimbursement in such settings and limiting proof

requirements in such actions). Legislative statements issued in

connection with the 1991 amendments primarily focused on a

legislative intent to enable municipalities to recover costs in

responding to the discharge of hazardous substances; none

referred directly to the changes made to N.J.S.A. 58:10-

19 23.11g(c)(1). See Sen. Envtl. Quality Comm., Statement to Sen.

No. 1928 (1990); Gen. Assem. Energy & Env’t Comm., Statement to

Sen. No. 1928 (1990); Sponsor’s Statement to Sen. No. 1928

(1990).

Thus, the legislative history is silent on the relationship

between the 1991 amendment and its connection to contribution

actions against the State generally, and with respect to pre-Act

activities by the State, in particular. It is debatable from

the combination of amendments to the Act in 1991, and

accompanying legislative statements, whether the change in the

first sentence of N.J.S.A. 58:10-23.11g(c)(1) -- to “no matter

by whom incurred” -- signaled a broadly intended opening-up of

contribution actions under N.J.S.A. 58:10-23.11f(a)(2)(a)

against any and all dischargers, including the State, for

hazardous discharges that preceded enactment of the Spill Act.

Only the second sentence of this amendment contains a reference

to N.J.S.A. 58:10-23.11f, and N.J.S.A. 58:10-23.11f(b)(3) is

where one finds the Act’s singular reference to retroactive

application of Spill Act liability to pre-Act discharges.

III.

Longstanding principles of statutory interpretation favor

the prospective application of statutes. Gibbons v. Gibbons, 86

N.J. 515, 521 (1981) (recognizing principle that statutes are

20 presumed to apply prospectively). Statutes have received

retroactive application when: (1) the Legislature explicitly

expressed its intent to have the statute apply retroactively, or

impliedly did so because retroactivity is “necessary to make the

statute workable”; (2) a curative or ameliorative statute is

involved; or (3) the reasonable “expectations of the parties . .

. warrant retroactive application of a statute.” Id. at 522-23;

see also Twiss v. State, 124 N.J. 461, 467 (1991) (same). The

latter two categories of potential retroactive application are

not implicated in this appeal.

In the subset of legislative action modifying existing law,

a new law is treated as presumptively prospective in application

“unless there is an unequivocal expression of contrary

legislative intent.” Dewey v. R.J. Reynolds Tobacco Co., 121

N.J. 69, 95 (1990) (internal quotation marks omitted). In the

narrower arena of legislation effecting a waiver of sovereign

immunity, the presumption against retroactive application is

even stronger due to protective policies pertaining to sovereign

immunity.

It is well settled that “the State may not be sued in [its

own] courts without its consent.” Taylor v. N.J. Highway Auth.,

22 N.J. 454, 466-67 (1956) (collecting cases). It is an

essential aspect of sovereignty to be free from suit by private

citizens seeking money damages unless the State has given its

21 consent, Lodor v. Baker, Arnold & Co., 39 N.J.L. 49, 50 (Sup.

Ct. 1876), which requires a clear legislative expression of

intent to be subject to suit, N.J. Interstate Bridge & Tunnel

Comm’n v. Jersey City, 93 N.J. Eq. 550, 553 (Ch. 1922)

(requiring strict construction of statutes in abrogation of

sovereign immunity because such statutes “are not permitted to

divest the state or its government of any of its prerogatives,

rights or remedies, unless the intention of the legislature to

effect such object is clearly expressed in the statute”). In

other words, a legislative waiver of sovereign immunity must be

expressed clearly and unambiguously, Allen v. Fauver, 167 N.J.

69, 77-78 (2001), and a retroactive waiver of sovereign immunity

requires the clearest of expression.

This Court has taken care with any retroactive application

of the waiver of sovereign immunity when the issue has arisen.

Such care was taken, for example, in the seminal case involving

the waiver of sovereign immunity from common law tort actions,

Willis v. Department of Conservation & Economic Development, 55

N.J. 534 (1970).

In Willis, after years of growing dissatisfaction with

application of common law sovereign immunity, this Court

announced that it would begin to hear tort liability claims

against the State, subject to the Legislature’s determination to

satisfy the adjudicated claims. Id. at 537-38, 541. In a

22 companion case, the Court similarly determined to entertain

contract claims against the State. P, T & L Constr. Co. v.

Comm’r, Dep’t of Transp., 55 N.J. 341 (1970). The Court

observed that the Legislature had been slow to draft a

“comprehensive legislative solution” to liability against the

sovereign and, therefore, the Court asserted that it was “time

for the judiciary to accept . . . responsibility and adjudicate

the tort liability of the State itself.” Willis, supra, 55 N.J.

at 539-40. The Legislature swiftly responded with the TCA and

the Contractual Liability Act in 1972. L. 1972, c. 45 (codified

at N.J.S.A. 59:1-1 to 14-4).

Notably, in Willis, supra, this Court scrupulously avoided

any retroactive application of its holding abrogating sovereign

immunity -- to the extent it permitted the adjudication of

claims -- by denying that privilege to earlier-in-time claims.

55 N.J. at 541. The Willis Court cited strong fiscal and policy

reasons for refusing to allow acceptance of other already

existing claims, including that there were no appropriations to

pay the obligations or to handle the caseload that might ensue

and that the Legislature might wish to enact procedural and

substantive limitations on the right to recover; therefore, the

Court postponed implementation of its decision, except as to the

championing successful plaintiff, for more than eight months to

allow the Legislature to act. Ibid.; see also Rochinsky v.

23 Dep’t of Transp., 110 N.J. 399, 414 (1988) (considering whether

common law immunity for snow removal survived TCA adoption and

concluding that “[a]bsent a clear and specific indication that

the Legislature intended to impose a liability that could have

such a radical impact on the fiscal affairs of public entities,”

TCA did not establish clear enough legislative expression to

have abrogated that protective immunity).

We now proceed to determine whether the Legislature clearly

and unambiguously intended to abrogate, retroactively, the

State’s sovereign immunity for activities that occurred prior to

enactment of the Spill Act.

It is clear that the inclusion of the State in the

definition of “person” subject to the Act when first enacted did

not render the State liable for any pre-enactment activities.

The Act, as originally passed, did not address discharges that

predated enactment. Although the Legislature did not

subsequently alter the definition of “person” to exclude the

State despite the amendment to permit private contribution

actions for pre-Act discharges, that failure, contrary to NL’s

argument, does not in and of itself provide any convincing

answer to the question of retroactive abrogation of sovereign

24 immunity.6 The provisions of the Act must be understood

together. To do that, the amendments must be examined in light

of the legislative intent animating the amendments layered onto

this complex piece of legislation.

As noted, retroactivity was not introduced into the Act

until the 1979 amendments did so, and then only for the limited

purpose of augmenting NJDEP authority by allowing the NJDEP to

access Spill Fund monies for cleanups of discharges that

occurred before the enactment of the Spill Act. Buonviaggio,

supra, 122 N.J. at 10. To the extent that the liability section

was amended at the same time, we can perceive, clearly, only the

following: the Legislature coupled its amendatory “retroactive”

action concerning pre-Act discharges, which could now provide a

basis for the drawdown of Spill Fund monies, with an expansion

of a liability that the NJDEP could pursue to replenish the

Fund. Liability was expanded to permit the State to seek

contribution from persons responsible for the pre-Spill Act

discharges that the NJDEP chose to address.

We fail to see from that combination of amendments in 1979

any basis for establishing any legislative intent whatsoever --

let alone a clear or unambiguous intent -- to abrogate the

6 Our dissenting colleague’s plain language analysis glosses over the central question in this appeal -- namely, whether sovereign immunity was intended to be retroactively abrogated.

25 sovereign immunity otherwise applicable to the State’s

activities occurring before the Act became effective in 1977.

Nor do the 1991 amendments provide that necessary clarity.

There is no trail between the altered language in Section 8’s

liability provision, deleting reference to the NJDEP’s removal

of hazardous substances “pursuant to subsection b. of section 7”

and adding “no matter by whom incurred,” and the contribution

section contained in Section 7 (N.J.S.A. 58:10-23.11f(a)(2)(a)),

that leads directly to the conclusion that the Legislature was

opening the State to contribution actions for its pre-Spill Act

activities as landowner or regulator. Such a conclusion must be

clearly and unambiguously expressed, and here we do not have

anything close to that clarity.

Likewise, the 1991 amendments’ legislative statements do

not establish that the change in language in the first sentence

of N.J.S.A. 58:10-23.11g(c)(1) -- to “no matter by whom

incurred” -- conveyed with the necessary precision a legislative

intent to open up contribution actions under N.J.S.A. 58:10-

23.11f(a)(2)(a) against any and all dischargers, including the

State, for hazardous discharges that preceded enactment of the

Spill Act. A broad, new, retroactive application for

contribution actions involving pre-Act discharges is at odds

with, or at the least appears to render redundant, the second

sentence to the amendment, which expressly refers to cleanups by

26 the NJDEP or a local governmental unit pursuant to N.J.S.A.

58:10-23.11f. And, as previously noted, only that second

sentence refers to N.J.S.A. 58:10-23.11f, and N.J.S.A. 58:10-

23.11f(b)(3) is where one finds the Act’s singular reference to

retroactive application of Spill Act liability to pre-Act

discharges.7

The question is not whether it is arguable that the

Legislature passed an amendment that could be construed to

provide a pathway to imposing liability on the State in a

private contribution action based on the State’s pre-Act

activities; rather, we must be able to conclude that the

Legislature clearly and unambiguously expressed its intention

for that result to obtain. We do not find the deliberate

clarity necessary to reach that conclusion and therefore part

ways with the decisions reached by the trial court and Appellate

Division.

C.

To the extent it is relied upon, Ventron, supra, does not

lend support to the proposition that the Spill Act subjects the

State to retroactive liability for pre-Spill Act activities. 94

N.J. 473.

7 The dissent’s statutory analysis never accounts for this limited, singular reference to retroactivity in the logic of its plain language interpretation. 27 Ventron’s setting was an action brought by the State

against private parties responsible for a discharge whose

cleanup the State had addressed, notwithstanding that the

discharge predated the original enactment of the Spill Act. Id.

at 485. In the course of the opinion, the Court tracked the

Act’s consistency with earlier water-pollution statutes

applicable to private parties up through the Water Quality

Improvement Act of 1971, which the Spill Act repealed and

supplanted, and addressed the 1979 amendment that allowed for

retroactive application of liability. Id. at 494-97.

Critically, the Court noted that the 1979 amendment “imposed

strict liability on any person ‘who has discharged a hazardous

substance or is in any way responsible for any hazardous

substance’ removed by DEP.” Id. at 494 (quoting N.J.S.A. 58:10-

23.11g(c)). The Court’s paraphrase of the closing language to

the sentence taken from the 1979 amendment underscored the

Court’s awareness that the retroactivity was conditioned on that

important feature -- it pertained only to those pre-Act

discharges that the State cleaned up and sought reimbursement

for from private parties. See id. at 487, 494. Far from

supporting the position taken in this action, Ventron highlights

the limited nature of the retroactivity permitted under the 1979

amendment. The decision in Ventron did not purport to speak to

all permutations of retroactive application of the Spill Act.

28 Post-Ventron, other courts of this State properly have

built their holdings carefully from the contextual holding

provided by Ventron, avoiding any broad interpretation of the

Act based on generalized statements about retroactivity

contained in the Court’s opinion. Such decisions have

recognized that not all of the Act’s provisions are intended to

be retroactive.

The Appellate Division considered Ventron’s effect on pre-

Act claims against the Spill Fund in Hunt, supra, where the

Atlantic City Municipal Utilities Authority (MUA) filed a claim

against the Spill Fund “to recover cleanup and removal costs

incurred because of [an] environmental hazard created” at a

landfill adjacent to MUA wells prior to the Act’s enactment.

210 N.J. Super. at 78-79, 92. The panel held that the Spill

Fund need not reimburse the MUA for its cleanup of the wells

because it found “no indication in the Act’s history that the

Legislature was originally thinking of generally covering

discharges which occurred before the existence of the Act,” and

instead found that “the strict liability provision of N.J.S.A.

58:10-23.11g(a) was prospective except with regard to [NJ]DEP’s

ability to recover for its cleanup and removal costs incurred in

29 removing hazardous substances discharged before the passage of

the Act.” Id. at 90, 91 (emphasis added).8

Notably, the Hunt panel appropriately rejected the argument

that the Ventron “statement that the Legislature expressly

intended the Act to be given retroactive effect” meant that “all

provisions of the Act should be given retroactive effect”

because that reading of Ventron takes the statement out of

context. Id. at 93, 94. See also J.T. Baker Co., supra, 234

N.J. Super. at 242, 246 (finding that Spill Act’s penalty

provisions did not apply retroactively despite Ventron because

Ventron’s holding as to one provision “d[id] not mean that the

entire statute was intended to have retrospective application,”

particularly when such retroactivity “would serve no . . .

rational purpose”); cf. Handy & Harman v. Borough of Park Ridge,

302 N.J. Super. 558, 565 (App. Div.) (noting that only certain

“portions of the Spill Act have been held to be retroactive”),

certif. denied, 152 N.J. 10 (1997).

D.

8 The Hunt court emphasized the fact that the 1979 Legislature “decided to give [NJ]DEP the power to clean up pre-Act discharges and simultaneously allowed it to recover from the fund” when it added L. 1979, c. 346, § 4 (now codified at N.J.S.A. 58:10-23.11f(b)(3)), and amended L. 1979, c. 346, § 5 (now codified at N.J.S.A. 58:10-23.11g(c)), such that the 1979 amendments were meant to permit only the NJDEP to recover its cleanup costs for pre-Act spills. Hunt, supra, 210 N.J. Super. at 87-88, 92 (emphasis added). 30 Finally, we note that, although relied upon by NL,

amendments made to the Spill Act in 1993 do not shore up NL’s

position that the Legislature deliberately intended for the

State to be stripped of its sovereign immunity and liable for

State activities predating the Act’s original effective date in

1977.

The 1993 Legislature amended the Act to provide a defense

for governmental entities that acquire land “by virtue of

[their] function[s] as sovereign[s]” when that land had been

contaminated prior to the acquisition. L. 1993, c. 139, § 44

(codified at N.J.S.A. 58:10-23.11g(d)). The defense is

unavailable to entities that “caused or contributed to the

discharge of a hazardous substance.” Ibid.

That amendment provides no clarity on legislative intent to

retroactively impose liability under the Act for actions

predating 1977. The State concedes that it was stripped of its

sovereign immunity for conduct occurring since the Act first

became effective. Thus, the State could have acquired property

by virtue of its function as a sovereign both before and after

the Act’s 1977 effective date. That the Legislature chose to

add to the State’s defenses for discharges on property that the

State subsequently acquired does not address, let alone clearly

answer, the question of legislative intent regarding a

31 retroactive stripping of the State’s sovereign immunity for pre-

1977 liability.9

Although our holding rejecting retroactive imposition of

liability under the Act on the State for pre-1977 activities

answers the fundamental question in this matter, we add the

following for completeness.

The trial court, affirmed by the Appellate Division,

discerned no evidence that the Legislature intended to require

the State’s liability under the Spill Act to be harmonized with

the procedural protections provided for claims under the TCA.

We agree. As the trial court stated, “[t]he Spill Act and the

TCA were enacted at different times for demonstrably different

reasons.” NL Indus., Inc., supra, 442 N.J. Super. at 445.

Because the statutes serve different ends, the trial court

determined it would be inappropriate to impose on Spill Act

plaintiffs seeking contribution from the State for its

affirmative discharges the obligation to satisfy the TCA’s

notice-of-claim requirements. Id. at 447 n.10 (citing, for

9 Although this Court stated in Morristown Associates, supra, 220 N.J. at 381, that N.J.S.A. 58:10-23.11f(a)(2)(a) limits a contribution defendant’s “defenses to liability,” that limitation does not extend to immunities, as the Act elsewhere separately acknowledges immunities as distinct from defenses. See N.J.S.A. 58:10-23.11g3(d).

32 additional support, Owens v. Feigin, 194 N.J. 607, 613-14

(2008)). We add that guidance in order to avoid confusion in

contribution claims pertaining to State discharges post-

Further, the State forcefully argued that the State should

not be held liable when exercising its regulatory

responsibilities or for its role as a sovereign. See Amelchenko

v. Borough of Freehold, 42 N.J. 541, 550 (1964) (“It cannot be a

tort for government to govern.”).

The State advanced that argument to underscore the

absurdity that it perceived would occur were the State held to

be retroactively stripped of its pre-Act sovereign immunity and

determined to be potentially liable for discharges into the

waters and related lands hundreds of years into the past. The

State also relied on that argument to maintain that the

liability section, which includes those who are “in any way

responsible” for discharges of hazardous substances, should not

be interpreted so broadly, and in conflict with the TCA’s

continued maintenance of immunity for discretionary activities.

See N.J.S.A. 59:2-3. We note that plaintiff conceded during

oral argument in this matter that the State, when acting as a

regulator, cannot be liable for others’ discharges.

In light of the fact that the State’s regulatory actions in

this matter all preceded the original passage of the Spill Act,

33 we add, concededly in dicta, only that we can find no clear

evidence in the legislative history of the Act that it was

intended to strip the State of immunity for the discretionary

governmental activities of a sovereign.

VI.

The judgment of the Appellate Division is reversed, and the

matter is remanded to the trial court for proceedings consistent

with the holding of the Court.

CHIEF JUSTICE RABNER AND JUSTICES PATTERSON, FERNANDEZ- VINA, SOLOMON, AND TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion.

34 SUPREME COURT OF NEW JERSEY A-44 September Term 2015 076550

JUSTICE ALBIN dissenting.

Today, the majority holds that the State has no cleanup

liability for its discharge of toxic pollutants onto New

Jersey’s lands before passage of the New Jersey Spill

Compensation and Control Act (Spill Act), N.J.S.A. 58:10-23.11

to -23.24. The majority concludes that only private parties are

responsible for cleaning up pre-Spill Act toxic discharges.

In passing and amending the Spill Act, however, the

Legislature made no distinction between the State and private

parties as toxic dischargers or owners of contaminated

properties. Both the State and private parties are defined as a

“person” for purposes of the Act. See N.J.S.A. 58:10-23.11b.

Under the Spill Act, when the State and private parties are

polluters, they have an equal responsibility to remediate

contamination that threatens the health of our citizens and the

integrity of our environment. Property contaminated before

1 1977, and not remediated, whether a school ground, a park, or a

beach retention wall, is a threat to public health, even when

the State is the polluter.

In Department of Environmental Protection v. Ventron Corp.,

we stated, “the Legislature has expressly declared that the

Spill Act should be given retroactive effect.” 94 N.J. 473, 498

(1983). We specifically held in Ventron that the Legislature

“established retroactive strict liability” against any “person”

-- a term that includes the State -- for a hazardous-substance

discharge, which the New Jersey Department of Environmental

Protection (NJDEP) is cleaning up or has cleaned up. Id. at 497

(citing N.J.S.A. 58:10-23.11g(c)); see also N.J.S.A. 58:10-

23.11b. In language that leaves no room for doubt, the

Legislature made clear that if the State is a polluter, it is as

responsible as any other party for the cleanup costs of a toxic

site -- regardless of when the contamination occurred. This

clear expression of legislative intent constitutes an

unmistakable waiver of sovereign immunity. See Allen v. Fauver,

167 N.J. 69, 74 (2001) (noting that “clear and unambiguous

legislative expression” constitutes waiver of sovereign

immunity).

The majority’s conclusion that only private parties -- and

not the State -- can be found at fault for pre-Spill Act

discharges is at odds with the statute’s plain language, the

2 Legislature’s policy objectives, and our decision in Ventron. I

therefore respectfully dissent.

In 1976, the Legislature passed the Spill Act, which

provided that “any person who has discharged a hazardous

substance shall be strictly liable, without regard to fault, for

all cleanup and removal costs.” L. 1976, c. 141, § 8(5)(c)

(emphasis added). The Spill Act’s definition of “person”

includes “the State of New Jersey and any of its political

subdivisions or agents.” L. 1976, c. 141, § 3(n) (codified at

N.J.S.A. 58:10-23.11b). That definition of “person” has not

changed during the Spill Act’s forty-year history.

In 1979, the Legislature amended the Spill Act, making the

State and any other person involved in a toxic discharge jointly

and severally liable and subject to contribution. See L. 1979,

c. 346, § 8(5)(c) (codified at N.J.S.A. 58:10-23.11g(c)(1)).

The Spill Act provides that “any person who has discharged a

hazardous substance, or is in any way responsible for any

hazardous substance, shall be strictly liable, jointly and

severally, without regard to fault, for all cleanup and removal

costs no matter by whom incurred.” N.J.S.A. 58:10-23.11g(c)(1)

(emphasis added). The Act also provides that “dischargers and

persons shall have a right of contribution against all other

dischargers and persons in any way responsible” for the

3 discharge. N.J.S.A. 58:10-23.11f(a)(2)(a) (emphasis added). In

accordance with N.J.S.A. 58:10-23.11f(a)(1), the NJDEP is

authorized to “direct [a] discharger to clean up and remove, or

arrange for the cleanup and removal of, the discharge.”

The 1979 amendment to the Spill Act also included a

retroactivity provision, stating that “the [NJDEP] . . . may

remove or arrange for the removal of any hazardous substance

which . . . [h]as been discharged prior to [April 1, 1977,] the

effective date of the act.” L. 1979, c. 346, § 7(b)(3)

(codified at N.J.S.A. 58:10-23.11f(b)). This Court in Ventron,

supra, determined that the strict-liability and joint-and-

several-liability provision of N.J.S.A. 58:10-23.11g(c) applies

to any “person” who has discharged a hazardous substance and is

retroactive to the period before passage of the Spill Act.1 94

N.J. at 497. The joint-and-several-liability and contribution

principles of Ventron apply here, as well, see N.J.S.A. 58:10-

23.11g(c)(1), because the State is a “person” within the

intendment of that statute, N.J.S.A. 58:10-23.11b.

The Legislature did not change the definition of “person”

in making the Spill Act retroactive, and we have no authority to

1 Ventron involved various private corporate entities that discharged pollutants into Berry’s Creek before the effective date of the Spill Act and were held jointly and severally liable without regard to fault under N.J.S.A. 58:10-23.11g(c). Ventron, supra, 94 N.J. at 484-86, 503. 4 do so. Our charge is to read the Spill Act as it is written.

Because there is no ambiguity about how the Legislature defined

the term “person,” there can be no doubt that the Legislature

intended the Spill Act to apply retroactively to the State. As

a consequence of the Legislature’s clear expression that the

Spill Act applies retroactively to the State, sovereign immunity

is a non-issue.

The majority acknowledges that private parties can be

jointly and severally liable for pre-Spill Act discharges and

can seek contribution from another liable party. Under the

majority’s reading of the statute, however, a private party

cannot seek contribution from the State when the State has joint

responsibility for a pre-Spill Act discharge. That

interpretation leads to the absurd result that when the State

and a private party are both responsible for a toxic discharge,

the private party is on the hook for the entire cleanup cost.

And that is so, even when the State is ninety percent

responsible for a discharge and the private party only ten

percent responsible. The unfairness of this outcome is all the

more flagrant because the NJDEP can select a site to be

remediated where a private party is required to clean up a toxic

spill primarily caused by the State.

The basic aim of allowing a right of contribution is to

allocate fault so that no party pays more than its percentage of

5 liability. See Magic Petroleum Corp. v. Exxon Mobil Corp., 218

N.J. 390, 403 (2014). This approach accords with basic notions

of “equity and natural justice.” Ibid. (quoting Sattelberger v.

Telep, 14 N.J. 353, 367-68 (1954)). The Spill Act allows one

discharger to seek contribution from another discharger. See

id. at 405. The right of contribution under the Spill Act

encourages a discharger to remediate contamination promptly and

effectively without “fear of bearing the entire cost of cleanup

when other parties were also responsible.” Id. at 403.

Exonerating the State from retroactive liability for remediating

a pre-Act toxic discharge, while all others remain jointly and

severally liable, does not accord with the Legislature’s

carefully crafted scheme of allocating fault equitably.

Resolving the issue before us does not require interpretive

acrobatics. A straightforward reading of the Spill Act and a

simple application of Ventron should have rendered an easy

answer to the question of the State’s liability.

The State is the trustee of New Jersey’s natural resources

and is ultimately responsible for ensuring the remediation of

toxic contamination of our lands and waters through the Spill

Act. See N.J.S.A. 58:10-23.11a. The Legislature made clear

that the State should not be treated differently from other

dischargers of toxic pollutants who have contaminated the

6 environment, regardless of when our lands or waters were

despoiled.

Because I believe the majority has misconstrued the Spill

Act to reach a result never intended by the Legislature, I

respectfully dissent.