The Appellate Division recently reversed a trial court decision dismissing as time-barred a New Jersey Department of Environmental Protection (“DEP”) complaint seeking to compel remediation of a former industrial site. The Appellate Division’s ruling in DEP v. Desai makes clear that if any portion of the remediation of a contaminated site is not completed, the DEP’s claims – with respect to any civil action concerning the remediation of a contaminated site commenced by the State pursuant to any of the State’s environmental laws – will be timely.

The defendants in Desai owned a solvent repackaging company, which operated an industrial property in Camden. Closing the business in 1987 triggered defendants’ cleanup obligations under the Industrial Site Recovery Act (“ISRA,” formerly ECRA). Defendants and the DEP entered into two Memorandums of Agreement regarding the required cleanup, but the site was not fully remediated. By January 1, 2002, all remediation efforts had ceased. In 2010, with the enactment of the Site Remediation Reform Act, the DEP informed defendants of their obligation to hire a Licensed Site Remediation Professional to oversee the remediation. Defendants did not complete the remediation.

The State filed an action in April 2023 to compel defendants to remediate the site and recover costs. Defendants moved to dismiss the complaint, claiming the DEP’s claims were untimely for failing to bring the action within the three-year limitations period. Defendants argued that the cause of action accrued when they ceased the remediation process prior to January 1, 2002, 21 years before the DEP filed its complaint. In its opposition, the DEP argued that a cause of action accrues when remediation is complete.

N.J.S.A. 58:10B-17.1(a)(2) states that, for purposes of determining whether an action was timely commenced, civil actions commenced by the State for remediation of a contaminated site shall not be deemed to have accrued until either (1) the contaminated site is remediated, or (2) January 1, 2002, whichever is later. The Appellate Division found that the three-year statute of limitations relating to DEP’s cause of action will not begin to accrue until the contaminated site is remediated in its entirety. The Appellate Division further clarified that a cause of action does not accrue the day remediation starts, while remediation is ongoing, or when a defendant abandons remediation before its conclusion.

The trial court made a common sense ruling that would avoid the prejudicial effects arising from the DEP sitting on complaints for decades, whereas the Appellate Division simply applied the plain language of the controlling statute to preserve the DEP’s claims for three years after the completion of remediation. Given this bright line decision, companies and individuals remediating contaminated sites should be particularly careful to memorialize their completion of DEP remediation requirements.