Justia Environmental Law Opinion Summaries

A civil penalty and restoration remedy was imposed on petitioners Robert and Michelle Huber, as a result of FWPA violations committed on their land, which had been developed subject to Freshwater Wetlands Protection Act (FWPA) permit conditions. A FWPA General Permit and Transition Area Waiver, issued to predecessors in title and duly recorded, controlled activities in certain areas of the Hubers' property. An administrative hearing substantiated the violations and resulted in the minimum fine and a restoration remedy for the affected property. On appeal from the final administrative action of the DEP, the Hubers raised for the first time a constitutional argument contesting the right of a DEP inspector to have entered their land without securing a warrant in advance. They argued that the inspector's testimony, based on observations made during that inspection, should not have been included in the record and, therefore, the violations had not been substantiated. The Appellate Division rejected the Hubers' constitutional challenge, in addition to all other arguments raised, and affirmed the administrative penalty. Upon review, the Supreme Court affirmed the outcome of the Appellate Division, but on different grounds as to how the FWPA inspection scheme operated consistently within constitutional parameters. The Court affirmed the judgment imposing an administrative penalty and a restoration remedy for disturbed freshwater wetlands on the Hubers' property. View "New Jersey Dept. of Env. Prot. v. Huber" on Justia Law

The issue before the Supreme Court in this case concerned the nature of the nexus that must be proven by the New Jersey Department of Environmental Protection (DEP) under the Spill Compensation and Control Act (Spill Act or Act) against Sue’s Clothes Hanger (Sue’s), the only direct defendant that remained in the case, for costs expended in the investigation and remediation of contaminated groundwater that tainted private wells in Bound Brook. The trial court dismissed the Spill Act claim, concluding that even if the building where Sue’s was located is a contamination source, the evidence was insufficient to establish that Sue’s discharged PCE that contaminated the groundwater. The court found: the groundwater and soil contamination preceded Sue’s dry cleaning operation; there was no evidence that the drip from Sue’s continued or the pavement below showed signs of contamination; the DEP took no other action regarding the drip, suggesting it was not considered to be significant; there is no evidence that PCE in the groundwater or soil came from Sue’s rather than from others who had conducted dry cleaning operations in the building; and because there are alternative sources of contamination from the building and Zaccardi’s, the DEP had not established by a preponderance of the evidence that Sue’s contributed to the groundwater contamination. Upon review of the matter, the Supreme Court affirmed the Appellate Division in holding that in order to obtain damages under the Spill Act, the DEP must demonstrate, by a preponderance of the evidence, a reasonable connection between the discharge, the discharger, and the contamination at the damaged site. The proofs failed to establish a sufficient nexus between the groundwater contamination and Sue’s discharge during its operation. View "New Jersey Dep't of Envtl. Prot. v. Dimant" on Justia Law