The New Jersey Appellate Division recently issued a decision confirming that the exclusive list of defenses set forth in the Spill Compensation and Control Act (Spill Act) rules out reliance on equitable defenses, just as it precludes statute of limitations defenses. The decision is significant for site remediation cases.

The underlying matter involved the construction of a residence in Middletown, New Jersey. In 2007, environmental consultants reported soil and groundwater contamination on the property. From 2009 until 2012, the property owner’s estate undertook remediation. In 2012, the co-executors of the estate sued the property’s prior owners, seeking contribution under the Spill Act, asserting violations of the Brownfield and Contaminated Site Remediation Act and the Contaminated Site Remediation Act, and asserting claims of strict liability, negligence, trespass, and nuisance. The trial court found that the Spill Act contribution claim and common law claims were time-barred. The trial court dismissed the Environmental Rights Act (ERA) claim because plaintiffs failed to serve notice on the Department of Environmental Protection (DEP) before filing the original complaint.

In Bradley v. Kovelesky, 2016 N.J. Super. Unpub. LEXIS 1898 (App. Div. Aug. 15, 2016) (Docket No. A-0423-14T4), the Appellate Division reiterated that the six-year statute of limitations for actions for trespass or tortious injury to real property is not applicable to Spill Act contribution claims, per Morristown Associates v. Grant Oil Co., 220 N.J. 360 (2015) (Morristown II). The court further confirmed that Morristown II’s holding—that the defenses enumerated in the Spill Act are exclusive—forecloses defendants’ argument that Spill Act contribution claims are subject to equitable defenses such as laches and unclean hands.

The Appellate Division also concluded that plaintiffs’ strict liability, negligence, and trespass claims, asserted on behalf of an estate, are survival actions governed by the two-year limitations period contained in N.J.S.A. 2A:15-3. Accordingly, the Appellate Division declined to consider the plaintiffs’ argument that under the discovery rule, the limitations period on the common law claims did not begin to run until the property owner became aware of the contamination.

With respect to the plaintiffs’ nuisance claim, which alleges a continuing failure to remediate the contamination, the court concluded that plaintiffs alleged a continuing nuisance, which is a continuing tort. Because the cause of action continually accrues, triggering a new limitations period each day the nuisance is not abated, the Appellate Division concluded the nuisance claim was not time-barred.

Finally, the Appellate Division reversed the denial of plaintiffs’ motion to amend to add an ERA claim, finding that the requirement to file notice to the DEP was not triggered until plaintiffs’ filed their notice to amend and there was no indication that an amendment would cause delay or prejudice.