Innocent Purchasers May Still Be Liable Under the Spill Act

Previously Published in "New Jersey Law Journal" - July 15, 2013

In N.J. Schools Dev. Auth. v. Marcantuone, 428 N.J. Super. 546 (2012), certif. denied, 2013 N.J. Lexis 509 (2013), the Appellate Division ruled that a 2001 amendment to the New Jersey Spill Act had essentially nullified a long line of cases which had found that persons who (prior to 1993) had purchased already-contaminated land were not liable for cleanup costs under the Spill Act. What makes this ruling interesting is that the amendment in question, which the Marcantuone court found had wrought this change, only purported to create a defense to Spill Act liability and was not itself a liability clause.

In fact, the Appellate Division conceded its ruling was somewhat novel and noted that: "Although it may seem counterintuitive to infer liability from legislation establishing an affirmative defense, logic dictates that this is the case." 428 N.J. Super. at 549.