Dirty Dirt or Clean Fill – Absent Proof It’s Dirty, New Jersey Court Says No Liability for Disposal of Clean Fill

Riker Danzig Scherer Hyland & Perretti LLP
Alexa Richman-La Londe

Reprinted with permission.  © 2016 Riker Danzig Scherer Hyland & Perretti LLP.

December 7, 2016

In recent years, the New Jersey Department of Environmental Protection (“NJDEP”) has focused on addressing the improper disposal of contaminated soil, which can result in soil piles that create environmental and health risks from polluted run-off. To address one such site, in 2011 the NJDEP filed suit alleging that an approximately 60-foot high contaminated soil stockpile in Woodbridge, New Jersey had been operated as an illegal landfill for over 11 years. NJDEP filed suit against the property owner and the business operator, seeking to hold them responsible for violating environmental laws and for the cleanup of the site. NJDEP also sought the same relief against several companies that brought material, usually from utility line or roadway projects, to the site for disposal (the “Contractor Defendants”). In a recent decision, the Court granted the Contractor Defendants’ motion for summary judgment finding there is no liability resulting from the disposal of “clean fill” at the site. New Jersey Department of Environmental Protection v. LWS Spector-Woodbridge Company, LLC et al., Docket No. C-107-11 (Ch. Div. Sept. 15, 2016).

The Court disagreed with NJDEP’s assertion that the Contractor Defendants were subject to the New Jersey Solid Waste Management Act (“SWMA”) when bringing “clean fill” to the site. The Court looked at the solid waste regulations and found that the term “clean fill” is defined as uncontaminated “inert solid such as rock, soil, gravel, concrete, glass and/or clay or ceramic products.” N.J.A.C. 7:26-1.4. The Court went on to note, however, that the term “clean fill” is not used anywhere else in the regulations and concluded that is because “clean fill” is not solid waste and, thus, is not regulated by the SWMA. Accordingly, the Contractor Defendants had no liability under the SWMA for the disposal of “clean fill.”

Applying the New Jersey Supreme Court holding in New Jersey Department of Environmental Protection v. Dimant, 212 N.J. 153 (2012) to the SWMA, the Court found that to prevail on its claim, the NJDEP was required to establish a nexus or that it was more likely than not that some solid waste found at the site had been brought there by the Contractor Defendants. Through discovery, however, the Contractor Defendants established that any materials that would not qualify as “clean fill,” such as asphalt and concrete with rebar, were separated out at the point of generation and transported to another facility for disposal. Only the remaining soil, which may have contained pieces of brick or concrete, was brought to the Woodbridge site as “clean fill.” The operator of the site corroborated the Contractor Defendants’ account, testifying that he inspected every load and the only material accepted from the Contractor Defendants was “clean fill.” In addition, the evidence established that the Contractor Defendants contributed approximately 71% of the material found at the site, with many other parties contributing the remainder.

The Court found that, despite having had years to collect evidence, including by conducting inspections while the site was operating, the NJDEP did “not have an ounce of proof” that the Contractor Defendants brought anything other than “clean fill” to the site. The Court went on to hold that NJDEP cannot use circumstantial evidence (or res ipsa loquitur) to establish a nexus between the Contractor Defendants and the solid waste at the site, stating that “[j]ust because the dirt pile at the. . . site contains solid waste does not as a matter of law lead to liability for the Contractor Defendants.”

Similarly, the Court found that the cross-claims brought against the Contractor Defendants by the property owners under the New Jersey Spill Compensation and Control Act (the “Spill Act”) were similarly defective because there was no proof that the “clean fill” brought to the site by the Contractor Defendants contained hazardous substances. Thus, absent a nexus between the Contractor Defendants and any contaminated material at the site, the owners were unable to sustain a Spill Act claim.

This decision expands Dimant beyond the Spill Act and opens a new avenue of defense because it requires NJDEP to show a reasonable nexus or connection when pursuing violations of the SWMA. Dimant has had and will continue to have a significant impact on litigation strategy for NJDEP as well as defendants.

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Ms. Richman-La Londe and may not reflect the opinions of Synergy Environmental, Inc., Riker Danzig Scherer Hyland & Perretti LLP or either of those firms’ clients.

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