NL INDUSTRIES, INC v. STATE OF NEW JERSEY

 

(NOTE: The status of this decision is Published.)

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0869-14T3

NL INDUSTRIES, INC.,

         Plaintiff-Respondent,

    v.
                                         APPROVED FOR PUBLICATION

STATE OF NEW JERSEY,                        SEPTEMBER 23, 2015

         Defendant-Appellant.               APPELLATE DIVISION

______________________________________

         Argued March 18, 2015 – Decided August 26, 2015

         Before Judges Fuentes, Ashrafi and Kennedy.

         On appeal from the Superior Court of New
         Jersey, Law Division, Middlesex County, L-
         1296-14 whose opinion is published at ____
         N.J.Super. ____ (Law Div. 2015).

         David S. Frankel, Deputy Attorney General,
         argued the cause for appellant (John J.
         Hoffman, Acting Attorney General, attorney;
         Melissa   H.   Raksa,   Assistant  Attorney
         General, of counsel and on the brief; Mr.
         Frankel, on the brief).

         Christopher R. Gibson argued the cause for
         respondent (Archer & Greiner, attorneys;
         Mr. Gibson, of counsel and on the brief;
         Patrick M. Flynn and Erin R. Carroll, on the
         brief).



    The opinion of the court was delivered by

KENNEDY, J.A.D.
      By leave granted, defendant State of New Jersey (State)

appeals   an   order    of   the     Law    Division      denying    its   motion       to

dismiss the complaint for failure to state a claim upon which

relief may be granted pursuant to R. 4:6-2(e).                    The State argues

that the Law Division erred in rejecting "three separate legal

defenses . . . each of which would be dispositive of all counts

of the complaint[.]"

      We have considered the arguments of the State in light of

the facts and the law, and we affirm the order of the motion

court substantially for the reasons set forth by Judge Douglas K.

Wolfson   in   his    thoughtful      and       erudite   seventeen-page         written

opinion which accompanied the order denying the motion.                           We add

only the following by way of context.

      NL Industries filed a complaint against the State and other

"public     polluters"       seeking        contribution      under        the      Spill

Compensation and Control Act (Spill Act), 
N.J.S.A. 58:10-23.11

to   -23.24,    for    the    cost    to     remediate      the     Laurence      Harbor

shoreline      in     Old    Bridge        Township.        The      United       States

Environmental Protection Agency (EPA) issued an order requiring

NL Industries to remediate the site, at an estimated cost of $79

million, alleging it produced the lead and other heavy metals

contained in slag used by private developer Sea-Land in 1968 to

build a seawall as a substitute for the beach fill structure




                                            2                                    A-0869-14T3
that was previously constructed as part of a Shore Protection

Project created by the State and local officials.

       NL Industries averred in its complaint that the State owned

the    land    on     which       the   seawall       was     built,       and   was     actively

involved      in     the    planning,          approval       and    construction         of   the

seawall using the "slag."                  At this point in the litigation, of

course,       we    must    accept        as    true     the     facts      alleged       in   the

complaint.          See Teamsters Local 97 v. State, 
434 N.J. Super.
 393,    413    (App.       Div.    2014)       ("When    we     review      a    trial    court's

decision to dismiss a complaint under Rule 4:6-2(e), we apply

the same standard but our review is de novo."); see also Donato

v. Moldow, 
374 N.J. Super. 475, 483 (App. Div. 2005).

       The State argued that the complaint against it must be

dismissed because: (1) the Tort Claims Act, 
N.J.S.A. 59:1-1 to

12-3,     immunizes         the     State;       (2)      the       Spill       Act    does    not

retroactively abrogate the State's "sovereign immunity[;]" and

(3) the complaint fails to state a claim for relief.                                  The latter

argument is based upon the State's averment that it is not "in

any    way    responsible"          under       the     Spill       Act,    N.J.S.A.       58:10-

23.11g(c)(1), for the condition of the site.                                     Judge Wolfson

correctly          rejected       these    arguments          and    denied       the     State's

motion.

       Affirmed.




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