On appeal from the Superior Court, Law Division, Essex County.
Matthews, Furman and Havey. The opinion of the court was delivered by Furman, J.A.D.
Plaintiffs and defendant Arlington Warehouse appeal by our leave from summary judgment in favor of all other defendants except Wellen Oil & Chemical Inc. and International Security Systems, Inc. in an action to recover costs of over $1,200,000 incurred in the Department of Environmental Protection's (DEP) cleanup of chemical products discharged as a result of a fire at Arlington Warehouse in January 1979. Co-defendants in whose favor summary judgment was granted were the manufacturers and owners of the chemical products, which they bailed for storage at Arlington Warehouse.
Plaintiffs sought to impose liability under the Spill Compensation and Control Act (Spill Act), N.J.S.A. 58:10-23.11 et seq., as amended by L. 1979, c. 346, § 5, against co-defendant manufacturers and bailors of the chemical products as persons "in any way responsible for any hazardous substance which the department has removed." Defendant Arlington Warehouse cross-claimed for contribution under the Spill Act.
N.J.S.A. 58:10-23.11g(c), as originally enacted in L. 1976, c. 141, § 8, established liability for costs of cleanup and removal of hazardous substances only against persons who had discharged them. The 1979 amendment, which became effective subsequent to the Arlington Warehouse fire, extended liability as follows:
Any person who has discharged a hazardous substance or is in any way responsible for any hazardous substance which the department has removed or is removing pursuant to subsection b. of section 7 of this act shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs. [language added by the 1979 amendment is underlined]
The cross-reference to subsection b. of section 7, also enacted in L. 1979, c. 346, is to the subsection authorizing DEP cleanup and removal of hazardous substances which were discharged prior to the effective date of the Spill Act.
Whether the chemical products discharged as a result of the Arlington Warehouse fire were "hazardous substances," as defined in the Spill Act, N.J.S.A. 58:10-23.11b(k), as plaintiffs
contend, has not been factually resolved. Plaintiffs allege but have not proven that all or most of them were highly toxic hazardous substances. The status of co-defendants as bailors of the chemical products was admitted on motion for summary judgment. Literally, they are persons "in any way responsible" for the bailed chemical products within the terms of amended N.J.S.A. 58:10-23.11g(c). At issue on appeal is whether the amended statute should be applied to them retroactively.
The trial judge interpreted the amended statute as imposing liability upon persons other than dischargers of hazardous substances only for the costs of cleanup and removal of discharges occurring prior to May 1, 1977, the effective date of the Spill Act. We do not so interpret it.
The plain reading of the amended statute is that any person who has discharged a hazardous substance or is any way responsible for any hazardous substance which DEP has cleaned up and removed is strictly liable, jointly and severally, for all cleanup and removal costs. The additional language which establishes liability for the costs of cleanup and removal of discharges occurring prior to May 1, 1977 is inapplicable on the facts. The evident statutory scheme is that both dischargers of hazardous substances and those otherwise responsible for such substances share liability for the costs of DEP cleanup and removal, whether the discharges occurred prior or subsequent to the original enactment of the Spill Act.
Co-defendant bailors urge a constitutional inhibition against that application of the amended statute because the discharge as a result of the Arlington Warehouse fire occurred in 1979, prior to the effective date of the amended statute which brought persons other than ...