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New Jersey Department of Environmental Protection v. Amerada Hess Corp.

United States District Court, D. New Jersey

November 1, 2017

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al., Plaintiffs,
v.
AMERADA HESS CORPORATION, et al., Defendants.

          OPINION

          Honorable Freda L. Wolfson United States District Judge

         Before the Court is the motion in limine of Defendants Exxon Mobil Corporation and ExxonMobil Oil Corporation, on behalf of all Defendants (“Defendants”), for leave to file a motion for partial summary judgment on the claims of the New Jersey Department of Environmental Protection (“NJDEP”), the Commissioner of the New Jersey Department of Environmental Protection, the Administrator of the New Jersey Spill Compensation Fund, and Michael Axline (collectively “Plaintiffs”) for primary restoration natural resource damages under the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. (the “Spill Act”).[1] Plaintiffs seek recovery for groundwater contaminated with Methyl Tertiary Butyl Ether (“MTBE”) at a Bakers Gulf Service Station in Waldwick Borough, Bergen County, NJ; an Exxon Service Station in Livingston Township, Essex County, NJ; a Getty Service Station in West Windsor Township, Mercer County, NJ; an HP Delta Service Station in Woodbridge Township, Middlesex County, NJ; and a Valero/APCO Service Station in Manalapan Township, Monmouth County, N.J. (collectively the “Trial Sites”).[2] Defendants contend that because it is undisputed that, once Defendants' existing, NJDEP-approved remediation plans are completed, the contaminated groundwater at and around the Trial Sites will, eventually, through the process of natural attenuation, reach pre-discharge concentrations of MTBE, Plaintiffs' claims for primary restoration damages should be interpreted as seeking “expedited remediation.” Defendants argue that under “controlling” New Jersey state case law, Plaintiffs may recover primary restoration damages for such expedited remediation efforts only where the groundwater contamination at issue gives rise to “an injury or threat to human health, flora, or fauna.” Defendants contend that because Plaintiffs cannot meet this burden on the undisputed facts, Defendants should be granted leave to move for summary judgment on Plaintiffs' claims for primary restoration damages. Plaintiffs oppose Defendants' motion in limine, rejecting Defendants' suggested standard for Plaintiffs' burden of proof, and instead argue that, under motion also does not dispute the availability of damages under Plaintiffs' common law and New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-2 et seq., claims. N.J.S.A. 58:10-23.11u.b. (4), Plaintiffs are entitled to damages for any primary restoration plan that is “practicable, ” meaning, as Plaintiffs interpret the statute, “available, ” “capable of being done, ” or “not impossible, ” without any further limitation. Accordingly, Plaintiffs argue that the issue of whether their claimed primary restoration plan is “practicable” is a question of fact that cannot be resolved on summary judgment.

         For the reasons set forth below, the Court finds that Plaintiffs' burden of proof at trial on their claims for primary restoration damages will be to establish by a preponderance of the evidence that Plaintiffs' primary restoration plan is “practicable, ” meaning “reasonably capable of being done” or “feasible” in light of “site-specific realities, ” including but not limited to the estimated length of time required to complete the restoration plan, the cost of the restoration plan, the extent to which the restoration plan is concrete, nonabstract and readily implementable rather than abstract or conceptual, the regulatory approvals required for the restoration plan from authorities other than NJDEP, and any other legal obstacles or barriers to the implementation of the restoration plan, including, for example, the current ownership of contaminated sites and the legal authority of the responsible parties to conduct restoration work at the sites. Because this standard involves a detailed factual inquiry, likely, if not necessarily, requiring documentary evidence as well as the testimony of fact witnesses and experts, and because this Court rejects Defendants' proposed alternative standard of “an injury or threat to human health, flora, or fauna, ” a pretrial motion for partial summary judgment by Defendants on Plaintiffs' claims for primary restoration damages is not appropriate at this time. Defendants' motion in limine for leave to file such a motion is therefore DENIED.

         I. BACKGROUND & PROCEDURAL HISTORY

         In this matter, NJDEP seeks to recover natural resource damages from Defendants for the discharge of MTBE into groundwater at the Trial Sites. “MTBE is an organic chemical compound derived from methanol and isobutylene.” In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 725 F.3d 65, 80 (2d Cir. 2013).[3] Until the mid-2000s, MTBE was widely used in certain regions of the United States, including in New Jersey “as a fuel oxygenate, i.e., an additive that reduces harmful tailpipe emissions by increasing the octane level in gasoline. By virtue of its chemical properties, however, spilled MTBE spreads easily into groundwater supplies.” Ibid. The Second Circuit, on an appeal from the MDL Court, succinctly set forth the risks to groundwater associated with MTBE that have been identified by the United States Environmental Protection Agency (“EPA”).

MTBE is capable of traveling through soil rapidly, is very soluble in water . . . and is highly resistant to biodegradation. . . . MTBE that enters groundwater moves at nearly the same velocity as the groundwater itself. As a result, it often travels farther than other gasoline constituents, making it more likely to impact public and private drinking water wells. Due to its affinity for water and its tendency to form large contamination plumes in groundwater, and because MTBE is highly resistant to biodegradation and remediation, gasoline releases with MTBE can be substantially more difficult and costly to remediate than gasoline releases that do not contain MTBE.

Id. at 80 (quoting Methyl Tertiary Butyl Ether (MTBE), Advance Notice of Intent to Initiate Rulemaking Under the Toxic Substances Control Act to Eliminate or Limit the Use of MTBE as a Fuel Additive in Gasoline, 65 Fed. Reg. 16094, 16097 (proposed Mar. 24, 2000) (to be codified at 40 C.F.R. Part 755)).

         “Contamination of groundwater supplies by MTBE is undesirable because MTBE has a very unpleasant turpentine-like taste and odor that at low levels of contamination can render drinking water unacceptable for consumption. Further, although MTBE has not been classified as a human carcinogen by either the EPA or the National Toxicology Program, . . ., some toxicological studies show [that MTBE] can cause [DNA] mutations, . . ., which can possibly lead to cancer.” Ibid. (quotations omitted). Accordingly, at least 25 states, including New Jersey, have banned the use of MTBE in gasoline because of the threat posed to groundwater. See N.J.S.A. 26:2C-8.22; Axline Cert. Ex. B, EPA Pub. A420-B-07-13, State Actions Banning MTBE (Statewide) (August 2007) (listing other state bans).

         Because MTBE is a pollutant of groundwater that potentially poses a risk to human health, it is regulated by the New Jersey Safe Drinking Water Act, N.J.S.A. 58:12A-1 et seq. (“NJSDWA”). NJSDWA sets maximum contaminant levels (“MCL”) for various groundwater pollutants based on the threat posed to human health (i.e., the safe drinking water standard). The current MCL for MTBE established under the NJSDWA is 70 ppb. New Jersey's health-based groundwater remediation standard for MTBE - known as the Ground Water Quality Standard (“GWQS”) - is also 70 ppb, based on the MCL. See N.J.A.C. 7:26D-2.2; N.J.A.C. 7:9C-1.7(c)3.i; N.J.A.C. 7:9C, Appendix Table 1, Specific Groundwater Quality Criteria.

         Plaintiffs' claims in this case concern discharges of MTBE at each of the Trial Sites, and the resulting contamination of the groundwater both at[4] and around[5] the sites with MTBE in concentrations exceeding the GWQS. Plaintiffs further contend, however, that at each Trial Site there is an off-site MTBE plume that is continuing to migrate through the groundwater, and that the off-site MTBE plumes have not been delineated, either horizontally or vertically, to pre-discharge conditions, meaning that it has not been determined how far the MTBE plumes have traveled away from the sites or how deep the plumes have spread into the underground aquifers. See Axline Cert., Exh. F, Aquilogic CFI Report at 50, 51; Exh. G, Aquilogic Exxon Report at 59, 60; Exh. H, Aquilogic Getty Report at 47; Exh. I, Aquilogic HP Delta Report, at 46; Exh. J, Revised Aquilogic HP Delta Report at 46 and Exh. K, Aquilogic Mobil Report at 43.

         The Fourth Amended Complaint (“FAC”) now before the Court presents six theories of liability for the MTBE groundwater contamination: strict product liability based on defective design (Count I), common law public nuisance (Count II), strict liability under the Spill Act (Count III), strict liability under the Water Pollution Control Act, N.J.S.A. 58:10A-1 to 35 (Count IV), common law trespass (Count V), and common law negligence (Count VI). As part of their Count III Spill Act claim, Plaintiffs seek, inter alia, “all damages in an amount at least equal to the full cost of restoring the waters of the State to their original condition prior to the contamination of such waters with MTBE.” FAC, Count III, Prayer for Relief, ¶ 141(d). The parties came before this Court for a pretrial conference on March 30, 2017. Defendants represented that a dispute existed between the parties concerning the damages to which Plaintiffs might be entitled should the factfinder find in Plaintiffs' favor on their strict liability Spill Act claim.[6] Defendants stated that, in their understanding, Plaintiffs' Count III Spill Act claim sought primary restoration damages for the cost of restoring contaminated groundwater at the Trial Sites to its condition before contact with human civilization. Defendants argued that Plaintiffs were not entitled to recover such primary restoration damages, under controlling New Jersey law, where Defendants were already remediating the groundwater under NJDEP-approved remediation plans. Plaintiffs countered that they sought only to restore groundwater to its pre-discharge condition, and that under the plain language of the Spill Act, they would clearly be entitled to primary restoration damages over and above Defendants' existing remediation efforts should the factfinder find in Plaintiffs' favor. After hearing from the parties, the Court granted Defendants leave to file a “Restoration v. Remediation Motion” in limine, (i) setting forth the legal basis for their proposed standard of Plaintiffs' burden of proof for primary restoration damages and (ii) requesting a declaration from the Court of the applicable standard to assist the parties in preparing for or otherwise expeditiously resolving the present dispute.

         The parties filed the completed briefing on the Restoration v. Remediation Motion on May 5, 2017. After reviewing the parties' submissions, the Court noted that neither Plaintiffs nor Defendants had addressed the case of New Jersey Dep't of Envtl. Prot. v. Exxon Mobil Corp., No. UNN-L-3026-04, slip op. ( N.J.Super., Law Div. Aug. 25, 2015) (the “Bayway Decision”), the most recent New Jersey state court decision discussing primary restoration damages under the Spill Act, and the only decision purporting to address directly the burden of proof for establishing such damages at trial. The Court requested supplementary briefing from the parties concerning the Bayway Decision on August 23, 2017. The parties filed their supplementary briefs on September 5, 2017. II. STANDARD OF REVIEW The MDL Court set the deadline for the filing of dispositive motions at August 30, 2013. June 11, 2013 MDL Status Conference, Tr. at 81:23-82:7. At the June 11, 2013 MDL Status conference, the MDL Judge specifically clarified that all summary judgment motions, including case-specific summary judgment motions, should be filed in the MDL Court by that date. Id. at 78:23-79:7. See generally discussion id. at 77:13-79:7. The Court therefore interprets Defendants' motion seeking leave to file a motion for partial summary judgment as a request for modification of the existing dispositive motion schedule in this case under Fed.R.Civ.P. 16.

         Federal Rule of Civil Procedure 16 governs pretrial management and scheduling orders. Under Rule 16(b)(4), a scheduling order “may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). The burden is on the moving party to “demonstrate good cause and due diligence.” Race Tires America, Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3d Cir. 2010). “‘Good cause' is understood to mean ‘[a] legally sufficient reason, ' and it reflects ‘the burden placed on a litigant (usu[ally] by court rule or order) to show why a request should be granted or an action excused.'” Joseph v. Hess Oil Virgin Islands Corp., 651 F.3d 348, 351 (3d Cir. 2011), as amended (Oct. 10, 2012) (quoting Black's Law Dictionary 251 (9th ed. 2009)). “[D]etermining whether the showing made will justify granting the relief sought can be accomplished only by considering the specific nature and purpose of the rule at issue.” Id. at 352.

         In its considerations, the Court should remain cognizant that “scheduling orders are at the heart of case management. If they can be disregarded without a specific showing of good cause, their utility will be severely impaired.” Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir. 1986). In any event, however, the Court retains authority to modify case schedules to entertain motions resolving questions of law concerning which the facts are undisputed in order to “secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1.

         III. ANALYSIS

         In their Restoration v. Remediation Motion, Defendants contend that

[u]nder controlling law, where the responsible party is already remediating groundwater in accordance with NJDEP regulations and where such remediation has, or will, satisfy the NJDEP's applicable GWQS and return the water to “pre-discharge conditions, ” primary restoration damages are only potentially available where Plaintiffs can establish a need to accelerate the process. Specifically, Plaintiffs, as trustee of the State's natural resources, may only seek such damages where there is an injury or threat to human health, flora, or fauna that provides a reasonable basis or justification for an expedited (and thus more expensive) remediation strategy.

Mot. Br. 3. The “controlling law” upon which Defendants rely comprises three unpublished decisions: (1) “Essex” - N.J. Dep't of Envtl. Prot. v. Essex Chem. Corp., No. MID-L-5685-07, slip op. at 9 (Law Div. 2010) (trial court opinion), New Jersey Dep't of Envtl. Prot. v. Essex Chem. Corp., No. A-0367-10T4, 2012 WL 913042 ( N.J.Super.Ct.App.Div. Mar. 20, 2012) (affirming the trial court on appeal); (2) “Union Carbide” - N.J. Dep't of Envtl. Prot. v. Union Carbide Corp., No. MID-L-5632-07, slip op. ( N.J.Super. Ct., Law Div. Mar. 29, 2011); and (3) “In re MTBE” - In re Methyl Tertiary Butyl Ether ("MTBE") Prod. Liab. Litig., No. 1:00-1898, 2014 WL 630636 (S.D.N.Y. Feb. 18, 2014). Defendants contend that, under the heightened burden of “an injury or threat to human health, flora, or fauna” found in these cases, Plaintiffs cannot prove, on the undisputed facts, that that they are entitled to primary restoration damages in this case. According to Defendants, it is undisputed (i) that the responsible parties are already remediating MTBE in groundwater at the Trial Sites down to the GWQS under the supervision of NJDEP and in accordance with NJDEP's regulations; (ii) that MTBE levels in the groundwater at the Trial Sites will continue to decline through natural attenuation even after the responsible parties satisfy the 70 ppb GWQS and meet all other regulatory requirements for site remediation at each of the Trial Sites; (iii) that Groundwater at the Trial Sites remediated to the GWQS for MTBE will, as a result of natural attenuation, reach pre-discharge concentrations of MTBE at some point in the future;[7] and (iv) that there is no evidence in the record of a present injury done or threat posed to human health or the environment by MTBE-contaminated groundwater at the Trial Sites. Defendants therefore seek leave to file a motion for partial summary judgment in order to foreclose Plaintiffs from seeking primary restoration damages under the Spill Act.

         In opposition, Plaintiffs contend that Defendants' proposed heightened legal standard for primary restoration damages is not found in the Spill Act, or the regulations promulgated thereunder, and argue that the only burden of proof imposed by the statute for the award of primary restoration damages is that any proposed primary restoration plan be “practicable, ” as set forth in N.J.S.A. 58:10-23.11u.b(4). The term practicable is not defined in the Spill Act, and so Plaintiffs argue that, under well-established New Jersey principles of statutory interpretation, it should be given its plain, ordinary, dictionary meaning of “available, ” “capable of being done, ” or “not impossible.” Plaintiffs further argue that Essex, Union Carbide, and In re MTBE are distinguishable, and dispute Defendants' “undisputed facts.” A. The Bayway Decision As noted above, neither Defendants' Motion, nor Plaintiffs' Opposition originally addressed the opinion of the New Jersey Superior Court in the Bayway Decision. There, the court was asked to approve a settlement between the State of New Jersey and the responsible party defendants and to enter a consent judgment awarding the State damages under the Spill Act, including primary restoration damages. In so doing, the court first found, as a matter of first impression, that “Spill Act consent judgments, whether approved judicially or administratively, should be fair, reasonable, faithful to the objectives of the Spill Act, and in the public interest.” Bayway, No. UNN-L-3026-04, N.J.Super., at 18. Under the reasonableness prong of the court's analysis, the court found that it was required to address, inter alia, whether the settlement amount appropriately reflected the relative strength of the parties' litigating positions and the attendant litigation risks were the parties to proceed to a verdict. Id. at 23; 46. This analysis required the court to set forth the State's burden of proof for each category of damages sought, including that for primary restoration damages.

         The Bayway court held that “[u]nder N.J.S.A. 58:10-23.11u.b(4), the State has the burden of demonstrating, by a preponderance of the evidence, that any restoration plan is ‘practicable.'” Id. at 50. Under this standard, the State “must take sites as it finds them when seeking to conduct primary restoration. This means that if certain site-specific realities make primary restoration non-practicable, the State may not conduct primary restoration. If this is the case, courts in turn cannot award primary restoration damages.” Id. at 50-51. Importantly for this case, the parties in Bayway reached the settlement for which they sought court approval only after having presented their proofs at trial. The court, in evaluating the parties' litigation risks in proceeding to a verdict, was, therefore, able to review the evidence[8] the parties presented concerning the “practicability” of primary restoration in the case. The State produced an expert in historical ecology to opine on the pre-discharge condition of the contaminated sites; an expert in environmental engineering and engineering cost estimation to opine on the proposed restoration project and its overall cost for the contaminated sites; and an expert in engineering, project development, conceptual design, and cost estimation to provide a supporting opinion on the practicability of the proposed restoration work. Id. at 9-10. The defendants cross-examined the State's witnesses and presented their own evidence concerning “numerous potential difficulties the State would encounter or failed to consider when seeking to restore natural resources” at the contaminated sites. Id. at 51. “These realities included, but were not limited to, the estimated length of time to complete the work, the cost of the plan, the plan's highly conceptual nature, the fact that the plan would need approval and be monitored by many regulatory authorities, which the State had not considered, and the fact that [a responsible party] no longer owns the sites.” Id. at 51.[9] The defendants also offered the testimony of their own expert in wetlands, construction and restoration of wetlands, estimation of costs of construction and restoration, ecotoxicology, and environmental toxicology to rebut the State's experts. Id. at 11, 51.

         The Bayway court's discussion of the State's burden of proof for primary restoration damages under the Spill Act and its review of the evidence relevant to the application of that standard make it clear that, in that court's opinion, the NJDEP need only prove that its restoration plan is “practicable” as established by a factual inquiry into “site-specific realities, ” including but not limited to the estimated length of time required to complete the restoration plan, the cost of the restoration plan, the extent to which the restoration plan is concrete, nonabstract and readily implementable rather than abstract or conceptual, the regulatory approvals required for the restoration plan from authorities other than NJDEP, and any other legal obstacles or barriers to the implementation of the restoration plan, including, for example, the current ownership of contaminated sites and the legal authority of the responsible parties to conduct restoration work at the sites. The Bayway court's opinion also makes clear that these relevant facts may be established, first and foremost, through the admission of expert testimony. Notably, nowhere did the Bayway court discuss the holdings of Essex or Union Carbide, or seek to apply their purported heightened burden of “an injury or threat to human health, flora, or fauna” in evaluating the State's litigation risks. This absence of discussion cannot be attributed to the Bayway court's ignorance of the Essex and Union Carbide decisions, as the same court, in an earlier memorandum opinion, made clear that it was aware of the defendants' argument that, based on Essex and Union Carbide, primary restoration damages should be barred. P. Supp. Br. Ex. A, New Jersey Dep't of Envtl. Prot. v. Exxon Mobil Corp., No. UNN-L-3026-04, Letter Order, 4-5 ( N.J.Super., Law Div. Feb. 10, 2014) (stating of Essex and Union Carbide, “[t]hese cases are unpublished. I have read them. They are not precedential and I am not obligated to accept their holdings in either or both in applying the law to the facts in this case. I am not required to follow their path, if in my opinion, the law, as applied to the facts in this case, draws me to different conclusions. . . . This case must rise or fall on its own merits.”). The clear implication of the Bayway Decision is therefore that the Superior Court either rejected or found inapplicable the decisions in Essex and Union Carbide, because the heightened standard applied in those cases would have constituted a significant litigation risk to the State's claims for primary restoration damages.

         In response to my request for supplementary briefing on the significance to the present motion, if any, of the Bayway Decision, Plaintiffs argue that the Superior Court's holding supports Plaintiffs' position (i) that the applicable burden of proof is the practicability of Plaintiffs' proposed primary restoration plan, (ii) that “practicable” means “available, ” “capable of being done, ” or “not impossible, ” and (iii) that whether restoration is practicable is a question of fact. Defendants contend that the Bayway court's adoption of the practicability standard of N.J.S.A. 58:10-23.11u.b(4) for the award of primary restoration damages “is entirely consistent with the legal precedent and arguments” advanced in Defendants' moving briefs. D. Supp. Br. 1. Despite this assertion, Defendants concede that the Bayway Decision shows that the “practicable” standard is “a multi-faceted concept that considers economics, logistics, regulators, and ownership” and takes into account “cost, timing, and other ‘realities'” specific to the sites in question. D. Supp. Br. 2-3. Defendants also concede that the courts in Essex, Union Carbide, and In re MTBE resolved the issue of primary restoration damages without reference to the “where practicable” language appearing in the statute invoked by the Bayway Court. D. Supp. Br., 3-4. Defendants attempt to explain away this noticeable omission by arguing that, although the factual inquiry of practicability is a baseline requirement for Plaintiffs to prove primary restoration damages, the earlier unpublished decisions in Essex, Union Carbide, and In re MTBE, nevertheless impose a heighted burden on Plaintiffs to “justify” that their primary restoration plans are “necessary” in order to obtain expedited remediation where “it is an undisputed reality that impacted groundwater will reach pre-discharge conditions.” D. Supp. Br., 3 (emphasis in original). In short, Defendants argue that a heightened standard greater than mere practicability applies in the limited circumstances presented in this case.

         The proper burden of proof for primary restoration damages under the Spill Act is a question of New Jersey state law that has not yet been addressed by a controlling state authority, and so this Court is called upon to predict the interpretation that would be adopted by the New Jersey Supreme Court were the question before it. See discussion at III(C), infra. Reviewing the plain statutory language of the Spill Act, the unpublished decisions cited by the parties, and the persuasive opinion of the New Jersey Superior Court in the Bayway Decision, I do not adopt either of the parties' positions in their entirety. This Court rejects Defendants' proposed heightened standard of “an injury or threat to human health, flora, or fauna, ” because I find that Plaintiffs' burden of proof in seeking primary restoration damages, consistent with the plain and ordinary meaning of the uncontroverted language of the Spill Act at N.J.S.A. 58:10-23.11u.b(4), is to show that NJDEP's proposed restoration plan is “practicable.” The Court also finds that “practicability” is a factual, not legal, inquiry, accomplished through the submission of fact and expert evidence, and not generally suitable for summary disposition. Plaintiffs are mistaken, however, in seeking to define “practicability” solely as that which is “available, ” “capable of being done, ” or “not impossible.” Instead, this Court adopts the definition of “practicable” evidenced in the Bayway case, which relies upon an evaluation of site-specific realities and circumstances. As explained below, this standard is consistent with the plain and ordinary meaning of the relevant language of the Spill Act and the limited body of available New Jersey case law.

         B. Statutory Language

         “When construing a statutory provision, a court's role is to discern and give effect to the Legislature's intent.” Morristown Assocs. v. Grant Oil Co., 220 N.J. 360, 380, 106 A.3d 1176, 1188 (2015) (citing DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005)). “To do so, [courts] focus on the plain language of the statute because it is ‘the best indicator' of [that] intent.” Id. (quoting In re Plan for the Abolition of the Council on Affordable Hous., 214 N.J. 444, 467, 70 A.3d 559 (2013)). In reviewing “the statute's plain language[, ]” courts “ascrib[e] to the words used their ordinary meaning and significance.'” Farmers Mut. Fire Ins. Co. of Salem v. New Jersey Prop.-Liab. Ins. Guar. Ass'n, 215 N.J. 522, 536, 74 A.3d 860, 868 (2013) (quoting Murray, supra, 210 N.J. at 592, 46 A.3d 1262). In other words, “[s]tatutory language should be interpreted in accordance with common sense in order to effectuate the legislative purpose.” Morristown Assocs., 183 N.J. at 492 (citing N.E.R.I. Corp. v. N.J. Highway Auth., 147 N.J. 223, 236, 686 A.2d 328 (1996)).

         “Further, when discerning legislative purpose and intent, the Court can consider the entire legislative scheme of which a particular provision is but a part.” Id. (citing Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 129, 527 A.2d 1368 (1987)). “Here the Legislature expressly stated its intended general purposes upon enactment of the Spill Act. A central Spill Act purpose is ‘to provide liability for damage sustained within this State as a result of any discharge of [petroleum products and other hazardous] substances, by requiring the prompt containment and removal of such pollution and substances.'” Id. (quoting N.J.S.A. 58:10- 23.11a.). The Act further declares that the State is “the trustee, for the benefit of its citizens, of all natural resources within its jurisdiction.” N.J.S.A. 58:10-23.11a. The courts of New Jersey have consistently concluded that the Spill Act is “‘a pioneering effort by government to provide monies for a swift and sure response to environmental contamination.'” N.J. Dep't. of Envtl. Prot. v. Exxon Mobil Corp., 393 N.J.Super. 388, 398 (App. Div. 2007) (quoting Marsh v. N.J. Dep't of Envtl. Prot., 152 N.J. 137, 144 (1997)).

         The Act provides that persons who are responsible for the discharge of hazardous substances are strictly liable, without regard to fault, for all cleanup and removal costs. N.J.S.A. 58:10-23.11g(c)(1). The term “cleanup and removal costs” is defined in the Act as “all direct costs associated” with the discharge of a hazardous substance, as well as those “indirect costs” incurred in the

(1) removal or attempted removal of hazardous substances, or (2) taking of reasonable measures to prevent or mitigate damage to the public health, safety, or welfare, including, but not limited to, public and private property, shorelines, beaches, surface waters, water columns and bottom sediments, soils and ...

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