A recent State of New Jersey Supreme Court opinion held that the State cannot be held liable in a suit for contribution under the New Jersey Spill Compensation & Control Act for actions that it took prior to the 1977 passage of the Act.
In 1968, after obtaining a land grant and building permit from the State, Sea-Land Development Corporation built a sea wall in order to protect the Lawrence Harbor from erosion. The wall was partially built on a jetty that was owned by the State and was constructed, in part, with slag from the NL Industries, Inc. Plant in Perth Amboy. In 2007, the NJDEP notified the EPA of contamination that it had detected along the sea wall, and the EPA demanded that NL Industries, as the generator of the slag material, remediate the site. NL Industries asserted a contribution claim against the State, alleging that the State should be partially responsible for remediation costs under the Spill Act, passed in 1977. The contribution claim asserted that (1) the sea wall was built upon land that was owned, in part, by the State; and (2) the State approved the construction of the sea wall and the materials from which it was to be built. The court held that the State is not obligated to pay remediation costs for incidents that occurred prior to the passage of the Spill Act. The court reasoned that because the legislature did not expressly waive the State’s sovereign immunity in the retroactivity amendments to Spill Act, the State is immune from suit for any such contribution claim.