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Kanner & Whiteley Urges State Appellate Panel on behalf of New Jersey Department of Environmental Protection to Revive Claims Over Contamination at an Oil Refinery

Kanner & Whiteley, LLC, on behalf of the New Jersey Department of Environmental Protection, urged a state appellate panel on Monday, November 4 to revive common law claims against Hess Corporation and Buckeye Partners, L.P. regarding natural resources damages caused by Defendants’ discharges of hazardous substances and pollutants from the Port Reading Terminal and related actions that have injured various natural resources at and around the site.

The five-count complaint included one count each under the New Jersey Spill Compensation and Control Act and the Water Pollution Control Act, and common law claims for trespass, strict liability and public nuisance. In a decision on December 21, 2018, Judge McCloskey dismissed the strict liability claim, concluding that it is “subsumed” within the Spill Act and that “the storage and processing of crude oil and refined petroleum products has not been found to constitute an ‘abnormally dangerous’ activity under any binding source of New Jersey legal authority.” The Law Division also dismissed the State’s claim for trespass, finding that the State lacked “exclusive possession” of the injured natural resources, and limited the State’s ability to recover the cost of abatement under its public nuisance claim.

During Monday’s argument, Allan Kanner, on behalf of the State, pointed to language in the Spill Act arguing that “liberal construction of the Spill Act does not mean eradicating or eliminating common law causes of action that state uses and has used to…protect the public trust.” Kanner also said, with regard to the trespass claim, that the state has a “superior interest” in its natural resources that “trumps the landowner who has all kinds of expectations about…what they could or couldn’t do with their property.”

This action was among six environmental suits the state launched August 1, 2018, including the first natural resource damage case to be filed by the State since 2008.

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