On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket Nos. L-3026-04 and L-1650-05.
The opinion of the court was delivered by: Carchman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Graves and Waugh.
The opinion of the court was delivered by CARCHMAN, P.J.A.D.
This appeal addresses the issue of whether plaintiff Department of Environmental Protection (DEP) is barred by the statute of limitations, N.J.S.A. 2A:14-1.2, from pursuing a common law strict liability claim against defendant Exxon Mobil*fn1
seeking to obtain natural resource damages under the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -23.11z (Spill Act). We must determine whether N.J.S.A. 58:10B-17.1 (the extension statute) applies to a claim for relief based on common law strict liability.*fn2
The Law Division judge concluded that the statute of limitations barred the claim and that the extension statute did not apply. He dismissed the fourth count of plaintiff's complaint asserting that cause of action. We granted leave to appeal and now conclude that the extension statute preserves this common law cause of action. Accordingly, we reverse, reinstate the fourth count of the complaint and remand for further proceedings.
We first set forth the procedural history. In August 2004, DEP filed two complaints against defendant, asserting Spill Act claims and common law claims of public nuisance and trespass, and seeking natural resource damages for the discharge of hazardous substances at two sites in Linden and Bayonne. Exxon Mobil I, supra, 393 N.J. Super. at 397. After we decided the loss of use claim issue in DEP's favor, DEP moved to amend the complaints, over defendant's objections, to include strict liability counts.
Thereafter, the trial court heard argument on defendant's motions for partial summary judgment asserting, among other things, that the statute of limitations had expired on DEP's common law claims for nuisance and trespass, and that the extension statute, N.J.S.A. 58:10B-17.1, did not apply. The judge granted that motion, and DEP did not seek interlocutory relief.
Defendant then moved for partial summary judgment seeking to dismiss count four of DEP's complaint, alleging a common law strict liability claim, under that same statute of limitations rationale. The judge granted defendant's motion and dismissed that count. We granted leave to appeal.
These relevant facts are best summarized in our decision in Exxon Mobil I, supra, 393 N.J. Super. at 397, and in the trial court's January 22, 2009 letter opinion. Included in that latter summary, the judge said:
During the course of operations at the Bayonne and Bayway refineries, crude oil and refined products were lost through spills and leaks. Neither party disputes that these products, which include, inter alia, monocyclic aromatics, PAHs, amines, pesticides, and various inorganics such as chromium and arsenic, are considered hazardous substances. The contamination at both of these sites is well-documented. It was estimated in 1977 that at least some seven million gallons of oil, ranging in thickness from 7 to 17 feet, are contained in the soil and groundwater underlying a portion of the former Bayonne site alone.
As of 2006, 17 non-aqueous phase liquid plumes were present in the groundwater at Bayonne. The documented level of contamination in the waters and sediment of the Platty Kill Canal in Bayonne is so high that ExxonMobil has recommended permanently closing and filling in the canal with an impermeable barrier (estimating 50,000 cubic yards of impacted sediments). Additionally, Morses Creek has been subject to years of discharges resulting in a hydrocarbon content ranging from 640 to 280,000 ppm which has subjected the area to a gelatinous, oily emulsion overlying gray silt.
Focusing on the statute of limitations, prior to 1991, statutes of limitation did not run against the State, pursuant to the common law doctrine of nullum tempus occurrit regi. N.J. Dep't of Envtl. Prot. v. Caldeira, 171 N.J. 404, 407 (2002). When the Court abolished that doctrine in 1991, "insofar as it would preclude the application of general statutes of limitations to the State," the Legislature responded by adopting the ten-year statute of limitations. N.J.S.A. 2A:14-1.2. Caldeira, supra, 171 N.J. at 408-09 (quoting N.J. Educ. Facilities Auth. v. Gruzen P'ship, 125 N.J. 66, 76 (1991)).
N.J.S.A. 2A:14-1.2(a) provides:
a. Except where a limitations provision expressly and specifically applies to actions commenced by the State or where a longer limitations period would otherwise apply, and subject to any statutory provisions or common law rules extending limitations periods, any civil action commenced by the State shall be commenced within ten years next after the cause of action shall have accrued.
In July 2001, that general statute was amended by L. 2001, c. 154, § 7, so that it referenced another new provision, the extension statute, governing environmental contamination matters:
The provisions of this section shall not apply to any civil action commenced by the State concerning the remediation of a contaminated site or the closure of a sanitary landfill facility, or the payment of compensation for damage to, or loss of, natural resources due to the discharge of a hazardous substance, and subject to the ...