On September, 26, 2012, in perhaps the most significant New
Jersey environmental decision in the last 30 years, the New Jersey
Supreme Court in New Jersey Department of Environmental
Protection v. Dimant (A-2-11) (067933) dealt a major blow to
the New Jersey Department of Environmental Protection's (NJDEP)
strategy of pursuing business owners for cleanup costs under New
Jersey's Spill Compensation and Control Act, N.J.S.A.,
58:10-23.11 et seq. (Spill Act) without sufficient evidence linking
those businesses to the contamination and alleged damage at issue.
In a case of first impression, the court has made it clear that for
the NJDEP to successfully pursue a claim for damages under the
Spill Act, including claims for natural resource damages (NRD), the
NJDEP must demonstrate, by a preponderance of the evidence, a
"reasonable nexus or connection" between the alleged
discharge by the defendant and the damage forming the basis for the
NJDEP's lawsuit. The unanimous decision
