Remarkably, 36 years after adoption of the Spill Act, and 20 years following the 1992 amendment providing an explicit private right of action, it remains unresolved whether the liability of a defendant in a private Spill Act suit is joint and several or merely several. Until this year, the unanimous authority was that the liability of a defendant in a private-party Spill Act claim was not joint and several, but only several. In March, however, the New Jersey Superior Court held that such liability was both joint and several. North Brunswick Township v. Avery Dennison, MID-L-5596-09, N.J. Super., Law Div., March 1, 2012.
The Spill Compensation and Control Act (Spill Act), N.J.S.A. 58:10-23.11 et seq., enacted in 1976, establishes, in what is known as “Section 8,” that any discharger of a hazardous substance, or any person “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.…” Properly read, Section 8 is limited to claims asserted by the N.J. Department of Environmental Protection (DEP) or other government agency. Accordingly, it has been the DEP that has brought claims against private parties either to compel the cleanup of improperly disposed-of hazardous substances or to seek reimbursement for monies that the department has spent to do so. In light of the explicit language, no one has doubted that the liability in these cases is joint and several.
