USA – NEW JERSEY Law and Practice Contributed by: Nicole Dory, Christina Sartorio Ku, Meredith Rubin and Camryn Goldstein, Connell Foley LLP
before transfer, while others allow automatic trans- fer upon notice if no material changes occur. Where NJDEP approval is required, the failure to obtain such approval can void a permit and expose the parties to enforcement action. 4.5 Consequences of Breaching Permits/ Approvals The violation of permit terms or conditions can result in significant administrative, civil and, in certain cas- es, criminal liability. NJDEP may issue Administrative Orders and Notices of Civil Administrative Penalty Assessment, suspend or revoke permits or approv- als, or refer matters for prosecution. Civil penalties vary by programme and can reach tens of thousands of dollars per day of violation. In addition to penal- ties, NJDEP can also require parties in violation of permits to make operational changes, conduct reme- diation, and restore affected environmental resources. In addition to regulatory enforcement actions, permit violations can expose violators to claims by private parties, including claims for nuisance, negligence, and trespass, as well as business risks. New Jersey’s ERA also allows a citizen to file a lawsuit against those who commit violations of environmental laws, including violations of permits and approvals, if those violations are not prosecuted by the governmental authorities. In New Jersey, several forms of liability may be imposed for environmental contamination or violations of environmental law, affecting operators, property owners and other responsible parties. At the regula- tory level, liability is primarily governed by statutes such as the Spill Compensation and Control Act (the “Spill Act”), the Water Pollution Control Act, and the Air Pollution Control Act, which authorise the NJDEP to pursue enforcement actions, assess penalties, and require investigation and remediation of discharges of hazardous substances or permit violations. This liability is typically strict, applying regardless of intent or negligence. While NJDEP has established and employs grace periods for certain minor regulatory violations, the failure to comply with NJDEP’s approv- als or regulations may result in NJDEP’s revocation 5. Environmental Liability 5.1 Key Types of Liability
or suspension of permits or approvals. The NJDEP may also issue compliance orders, assess administra- tive civil penalties, file civil actions, or impose criminal penalties. In addition to regulatory liability, parties may face civil liability from neighbouring owners, affected third par- ties, or the public, who assert common law claims for harm to land, water, or natural resources, such as negligence, trespass, and private or public nuisance claims, which may seek damages, resource restora- tion, and/or injunctive relief to stop violations. There is also the potential for criminal liability, which generally arises where violations are knowing, wilful, or result from reckless disregard of environmental obli- gations. Criminal enforcement is pursued by the OAG or federal authorities, depending on the nature of the statute and the conduct involved. Finally, liability may extend contractually through indemnities, access agreements, or transactional rep- resentations and warranties. 5.2 Liability for Historical Environmental Incidents or Damage Environmental liability in New Jersey extends to his- torical incidents, including past discharges or con- tamination, and does not limit liabilities for same to the original polluter. Under the Spill Act, the release of hazardous substances at any time (including historical releases) may give rise to strict liability for cleanup and cost-recovery, even to property owners who acquired the site after the release occurred. New Jersey’s ISRA is a successor liability statute that ensures the reme- diation of property upon sale or transfer or ownership interest by requiring the purchaser or current opera- tor of a regulated facility to investigate the need for remediation. If a prior owner or operator failed to com- ply with ISRA, the subsequent owner or operator of a regulated facility may become responsible for the remediation of contamination that predates current ownership. Thus, purchasers and operators in New Jersey must undertake due diligence, including his- torical site assessment, to ensure compliance with remedial obligations and state law, so that they do not unknowingly inherit liability for past contamination or ongoing remediation.
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