NATURAL RESOURCE DAMAGE CLAIMS IN NEW JERSEY
By: Governor James J. Florio, Esquire

Over the past several years, the New Jersey Department of Environmental Protection ("NJDEP") has been increasingly and more aggressively pursuing claims for natural resource damages ("NRD"). Most recently, the NJDEP and the New Jersey Attorney General's Office filed approximately 120 lawsuits against hundreds of defendants seeking to recover compensation or alternative remedies to address damages allegedly caused to New Jersey's natural resources. According to the press release issued by the NJDEP and the Attorney General's Office, the State seeks "compensation above and beyond cleanup costs and fines that DEP levies". NJDEP seems particularly focused on damages to both groundwater and surface water.

Natural resources of the State have been defined by statue as "all land, fish, shellfish, wildlife, biota, air, water and other such resources owned, managed, held in trust or otherwise controlled by the State" N.J.S.A. 58:10-23.11b. The waters of the State include the ocean and its estuaries, all springs, and bodies of surface or groundwater, whether natural or artificial, within the boundaries of the State or subject to its jurisdiction. N.J.S.A. 58:10A-3t.

Under the New Jersey Spill Compensation and Control Act, (the "Spill Act") the State has been designated as the Trustee, for the benefit of its citizens, of all natural resources within its jurisdiction. The Spill Act provides for joint and several liability and authorizes, among other things, the NJDEP to pursue a civil action for the cost of restoration or replacement of any natural resource damaged by a discharge. N.J.S.A. 58:10-23.11g.c.(1). NJDEP has also relied on the common law public nuisance theory and the "Public Trust Doctrine" in support of its pursuit of NRD claims. The Spill Act also holds any entity that has discharged hazardous substances onto the land or into the waters of the State liable for cleanup and removal costs. In June 2007, in a case entitled NJDEP v. Exxon Mobil Corporation, the New Jersey Appellate Division concluded that an entity is strictly liable under the Spill Act for damages for the loss and use of natural resources adversely affected by its discharge of hazardous substances.

NJDEP increased its focus on NRD claims in September, 2003 with the issuance of its Natural Resource Damage Policy Directive. The Directive was designed to address NRD claims at 4,000 of the State's estimated 12,000 contaminated sites. Pursuant to the Directive, NJDEP began analyzing and screening known contaminate sites and sites with leaking underground storage tanks. The State retained outside legal counsel and experts to assist in the screening process. NJDEP also developed methodologies to be utilized in estimating damages to groundwater.

In the early stages, NJDEP emphasized a desire for voluntary restoration efforts and settlement of NRD claims in lieu of litigation. According to NJDEP, the natural resource damage program has recovered more than $51 million and preserved approximately 6,000 acres of open space as wildlife habitat and groundwater recharge areas as compensation for pollution resulting from 1,500 contaminated sites and oil spills.

Under NJDEP's technical rules, a party responsible for polluting a site must conduct a thorough investigation to determine the nature and extent of any pollution. Upon completion of this remedial investigation, the responsible party may either voluntarily undertake restoration efforts or face the potential risk of a lawsuit. NJDEP has a statutory limitation period of 5 ½ years within which to file its lawsuit. The clock on this limitation period commences at the completion of the remedial investigation.

With the recent filing of approximately 120 lawsuits, it is clear that NJDEP is determined to aggressively pursue NRD claims. Those parties that are currently undertaking remediation at a contaminated site or those who may be a potential responsible party for a discharge would be well advised to closely analyze the potential impact to natural resources. A proactive approach from the outset of the investigation and early discussions with NJDEP toward an amicable resolution of NRD claims appears to be an advisable approach.

Paul Fader Named to Politics NJ
Most Influential New Jerseyans List
Paul T. Fader has been named one of New Jersey's most politically influential people by PoliticsNJ.com. According to PoliticsNJ.com, the list was developed by looking at policy makers, party leaders, fundraisers, lobbyists, labor union members, businesses men and women, and association leaders. The website terms the group of 100 as "the ultimate list of New Jerseyans with clout, with an impact on politics and government in the Garden State." Paul has long been involved in the national, state and local Democratic party. He served on then-Congressman Robert Torricelli's staff in the 1980s for the U.S. House of Representatives, as a delegate for President Clinton to the 1996 Democratic National Convention, as a member of the Federal Judicial Nominating Committee for the Federal District Court of the State of New Jersey and as a transition team member for New Jersey Governors James J. McGreevey and Richard J. Codey. Paul served two successful terms as Mayor of the City of Englewood. Prior to joining Florio Perrucci Steinhardt & Fader, Paul was Chief Counsel to New Jersey Governors James J. McGreevey and Richard J. Codey.

Governor Florio Address
Lehigh Valley Chamber on Urban Revitalization
Governor James J. Florio will deliver the keynote address to the Greater Lehigh Valley Chamber of Commerce on November 6 at Stabler Arena in Bethlehem, Pa. His remarks will focus on the revitalization of America's cities and growth trends in New Jersey and New York that will continue to impact eastern Pennsylvania. The event usually sells out with more than 1,000 people in attendance.

Education Law Added to Practice Groups
Florio Perrucci Steinhardt & Fader is pleased to announce the addition of education law to its practice areas. The practice includes Donald E. Souders, Jr. who is serving as the lead attorney for the firm's work with the Phillipsburg, N.J., school board. Working closely with Don is Lester Taylor who has significant experience in representing school boards for general as well as labor and employment matters for the Boards of Education in Asbury Park, Irvington, East Orange and Pleasantville, N.J. The firm also serves as counsel to Warren County Community College and Bergen County Community College.

Woodbury Open House
Scheduled for October 11
You are invited to attend the official opening of the Woodbury office of Florio Perrucci Steinhardt & Fader on Thursday, October 11 from 5:30 to 8 p.m. The office is located at 108 Euclid Street, perpendicular to the Gloucester County Court House. Invitations will be mailed soon. To RSVP for an evening of stimulating conversation and refreshments, contact Bette Kovach, firm marketing, at 908-454-8300 or bkovach@ florioperrucci.com

Save the Date!
For Firm's Party at the New Jersey State League of Muncipalities
Florio Perrucci Steinhardt & Fader will again host a cocktail party during the New Jersey State League of Municipalities' annual conference in Atlantic City. Mark your calendars for Tuesday, November 13 at 6:30 until 9 p.m. at the Trump Plaza. An invitation will be sent closer to the event, and RSVPs will be appreciated.

Governor James J. Florio is a founding partner of Florio Perrucci Steinhardt and Fader. In that capacity, he is the chair of the firm's Environmental Group as well as the Government and Regulatory Affairs Group.

Governor Florio has been a University Professor for Public Policy and Administration at the Edward J. Bloustein School at Rutgers, The State University of New Jersey. He also served as Chairman of the Board of Directors of the Federal Home Loan Bank of New York and as Chairman of The Pinelands Commission in New Jersey. Governor Florio currently serves on the Board of Directors of the New Jersey Health Care Quality Institute.

As the Governor of New Jersey from 1990 through 1994, he was responsible for signing into law the Clean Water Enforcement Act (1990), one of the strongest Environmental laws of its type in the nation. He also signed the Quality Education Act, which provided greater equity in New Jersey's school finance system, a landmark welfare reform package, a health care cost-reduction program and the nation's toughest assault weapons ban.

While in Congress from 1974 through 1990, representing the lst District of New Jersey in the U.S. House of Representatives, Governor Florio authored the Comprehensive Environmental Response Compensation and Liability Act, known as the "Superfund" law, our nation's primary program for cleaning up hazardous waste sites. As Chairman of the House Subcommittee with jurisdiction over environmental matters, he was involved in the drafting or passage of virtually every major piece of federal environmental legislation. Governor Florio also wrote the legislation that privatized Conrail and served on the U. S. Secretary of Energy's Advisory Board.

Governor Florio entered public service in 1969, serving three terms in the New Jersey General Assembly. Previously, he was an attorney in private practice in Camden County. Governor Florio received his Juris Doctorate from Rutgers University Law School in Camden. He graduated magna cum laude from Trenton State College and attended graduate school at Columbia University, where he received a prestigious Woodrow Wilson Fellowship.

Governor Florio holds numerous honorary degrees and was the 1993 recipient of the Profile in Courage Award by the John F. Kennedy Library Foundation.

About Our People

Lester Taylor Joins Firm's
Rochelle Park Office

Lester E. Taylor III has joined Florio Perrucci Steinhardt & Fader as an associate in the firm's Rochelle Park office where he works in the practice areas of litigation defense, labor and employment, municipal, including representing school boards, and construction and public contracting law. He received a bachelor of arts degree in political science from Montclair State University and a Juris Doctorate from Howard University School of Law. While in law school, Lester served as a legislative associate for Dominion, a Virginia-based electric utility, in its Washington, D.C. office. Following graduation from law school, Lester served as a law clerk to the Honorable Zinora M. Mitchell-Rankin, Associate Judge, Superior Court of the District of Columbia. He then worked as an associate engaged in all phases of litigation with Hunt, Hamlin & Ridley in Newark, N.J., before joining Florio Perrucci Steinhardt & Fader, L.L.C. Lester is admitted to practice law in New Jersey and Maryland.