In NL Industries v. State, Docket No. 076550, decided on March 27, the Supreme Court of New Jersey held that the State’s waiver of sovereign immunity for contribution claims under the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et seq., does not apply to State conduct that occurred before the Spill Act’s effective date. The court’s decision will have significant implications, including creating immunity for the State and its political subdivisions from Spill Act liability for historic contamination.
Background
In 1968, a private developer notified the State that it desired to build a seawall in Laurence Harbor using “slag” to replace an existing beachfill protective structure. The State took a hands-on role in obtaining federal and local approvals for the project. During the late 1960s and early 1970s, the seawall was constructed, at least partially, on beach property owned by the State. Decades later, lead contamination was found at the seawall and in surrounding areas and, in 2009, the United States Environmental Protection Agency (EPA) designated the area the Raritan Bay Slag Superfund Site. The EPA alleged that NL Industries’ (NL) secondary lead smelting operations in Perth Amboy were a source of the slag used to construct the seawall and directed NL to remediate the contamination.
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