The right of private parties to seek treble damages under the Spill Act could be expedited or eliminated depending upon the final formulation of pending legislation.
An amended version of A-1033, which is sponsored by Assemblymen DiGaetano and Pascrell, was passed in the Assembly on February 27, 1997 on a vote of 74-0-0. The bill as amended by the Assembly Agriculture and Waste Management Committee would end NJDEP's discretionary authority to authorize private party recovery of treble damages, but allow private parties to pursue treble damages in the courts without NJDEP authorization.
Under the proposed legislation, a court may award treble damages to any contribution plaintiff upon a finding by the court that: (1) the contribution defendant was named in, or subject to, a NJDEP directive and failed or refused to comply with the directive; (2) the contribution plaintiff gave 30 days notice to the defendant of the plaintiff's intent to seek treble damages and gave the defendant an opportunity to participate in the cleanup; (3) the contribution defendant failed or refused to enter into a settlement agreement with the contribution plaintiff; and (4) the contribution plaintiff entered into an agreement with NJDEP to remediate the site. In contrast, the bill as originally introduced would have amended the Spill Act to delete NJDEP authorization for private party recovery of treble damages for hazardous discharge cleanup and would have allowed only NJDEP the right to seek treble damages. The amended bill was received in the Senate on March 3, 1997 and referred to the Senate Environment Committee.
Another bill currently before the Senate Environment Committee, Senator McGreevey's "Brownfields Cleanup Act" (S-1539), which was discussed in our last issue, contains similar provisions that would amend the Spill Act to allow private parties to seek treble damages in cost recovery actions without first obtaining NJDEP authorization. This does not mean, however, that there is unanimity of opinion affirming the right of private parties to seek treble damages in such cases. On the contrary, Assemblyman DiGaetano's "Brownfields Redevelopment Act" (A-2724), introduced February 10, 1997, reintroduces that section of the original version of A-1033, which he sponsored, by seeking to amend the Spill Act so as to eliminate all private party suits for treble damages, thus allowing only NJDEP the right to seek treble damages. The bill is currently before the Assembly Agriculture and Waste Management Committee.
Private parties with potential Spill Act claims should be sure to consider these issues when evaluating their claims.
