1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized).

Magic Petroleum Corporation v. Exxon Mobil Corporation (A-46-12) (069083)

Argued November 6, 2013 -- Decided July 28, 2014

FERNANDEZ-VINA, J., writing for a unanimous Court.

In this appeal, the Court considers whether a property owner’s claims for contribution under the Spill 

Compensation and Control Act (Spill Act or Act), N.J.S.A. 58:10-23.11 to -23.24, must be deferred under the 

doctrine of primary jurisdiction until after the conclusion of New Jersey Department of Environmental Protection 

(DEP) remediation enforcement actions, or whether a property owner may proceed against responsible parties to 

recover sums expended to remediate the site before the DEP concludes its involvement in the site.

In a proceeding before the Office of Administrative Law (OAL), the DEP sued Magic Petroleum, Inc. 

(Magic) for expenses incurred during the remediation of hazardous material on land owned and operated by the 

company. Although Magic asserted that other parties were responsible, Magic bore the entire cost of cleanup 

pursuant to the DEP’s determination that Magic was a discharger.

On August 12, 2003, while the DEP proceedings were ongoing, Magic filed a claim for contribution in the 

Superior Court under the Spill Act, alleging that Exxon Mobil Corporation (ExxonMobil) and several other parties 

were responsible for a portion of the costs associated with the cleanup. The trial court dismissed Magic’s claim 

without prejudice, reasoning that, under the doctrine of primary jurisdiction, the contribution claim could only be 

filed following complete remediation of the site. The court adduced that deferring the case to the DEP would afford 

the Department time to employ its expertise in evaluating the full extent of the contamination and total costs of the 

cleanup, components essential to awarding the final allocation of costs following completion of the remediation.

Magic moved for reconsideration, which was denied. 

Magic appealed, and the Appellate Division affirmed the trial court’s orders dismissing the complaint and 

affirming the denial of Magic’s request for reconsideration. The panel reasoned that while the Superior Court and 

the DEP have concurrent jurisdiction to determine whether ExxonMobil is a discharger, only the DEP could identify 

the contamination, analyze the extent of the discharge, and devise a cleanup strategy. Those findings, the panel 

continued, needed to be made prior to the Superior Court’s allocation of liability. Furthermore, the panel held that a 

party must first obtain written approval of the remediation plan from the DEP before commencing a contribution 

claim under the Spill Act. The Court granted Magic’s petition for certification. 213 N.J. 387 (2013).

HELD: Plaintiff property owners or other responsible parties may file contribution claims in Superior Court, and a 

court may allocate liability before the final resolution of a site remediation plan by the DEP. The trial court may assign 

liability based on evidence presented at trial, but may not be able to issue a final damages award. In addition, a party 

need not obtain written approval of the remediation plan prior to filing a claim for contribution.

1. The New Jersey Legislature enacted the Spill Act in 1976 to “stem the threat to the economy and environment of 

the State posed by the discharge of petroleum products and other hazardous substances.” Marsh v. N.J. Dep’t. of 

Envtl. Prot., 152 N.J. 137, 144 (1997) (internal quotation omitted). The Act prohibits the “discharge” of “hazardous 

substances” into the environment and provides for the cleanup of that discharge. N.J.S.A. 58:10-23.11c. (pp. 11-12)

2. The DEP is charged with managing public funds to quickly and efficiently restore lands spoiled with 

environmental contamination. N.J.S.A. 58:10-23.11f(a)(1) (authorizing the DEP to “act to clean up and remove or 

arrange for cleanup and removal of such discharge” or to “direct the discharger to clean up and remove or arrange 

for the cleanup and removal of the discharge”). The Legislature established strict liability for causing environmental 

contamination and mandated that dischargers are jointly and severally liable. N.J.S.A. 58:10-23.11g(c)(1). Thus, 

the DEP may collect the entire amount of cleanup costs from one discharger, even when that party was only partially 

responsible for the spill. (pp. 12-13). 
2

3. In 1992, the Legislature amended the Spill Act to clarify that dischargers ordered by the DEP to pay for the 

entirety of cleanup costs were entitled to seek contribution from other responsible parties, based in part, on “the 

normal course of tort law.” L. 1991, c. 372, § 14. At the time of the amendment’s passage, the “normal course of 

tort law” included the already-existing right of contribution, codified in the Joint Tortfeasors Contribution Law, 

N.J.S.A. 2A:53A-1, as modified by the Comparative Negligence Act, N.J.S.A. 2A:15-5.1. In pertinent part, the Spill 

Act provides that “[w]henever one or more dischargers or persons cleans up and removes a discharge of a hazardous 

substance, those dischargers and persons shall have a right of contribution against all other dischargers and persons 

in any way responsible for a discharged hazardous substance or other persons who are liable for the cost of the 

cleanup and removal of that discharge of a hazardous substance.” N.J.S.A. 58:10-23.11f(a)(2)(a). (pp. 13-15)

4. Importantly, the Legislature directed that contribution plaintiffs seek relief before a court. The Legislature 

bestowed upon the courts liberal discretion to “allocate the costs of cleanup and removal among liable parties using 

such equitable factors as the court determines are appropriate.” N.J.S.A. 58:10-23.11f(a)(2)(a). The Legislature 

went further to ensure private entity dischargers were not prevented from seeking recourse in the courts, dictating 

that “[n]othing in [N.J.S.A. 58:10-23.11f(a)(2)(a)] shall affect the right of any party to seek contribution pursuant to 

any other statute or under common law.” Thus, the Legislature established a private right of action in contribution 

so that dischargers designated by the DEP could share the cost of remediation with additional potentially responsible 

dischargers not initially designated by the DEP. The Legislature focused on the courts as the venue to allocate 

liability percentages, while the DEP continued to apply its expertise in the remediation of the site. (pp. 15-17)

5. This appeal requires the Court to address the doctrine of primary jurisdiction. Primary jurisdiction is applicable 

when a case is properly filed in the Superior Court but the court declines original jurisdiction, referring specific 

issues to the appropriate administrative body. The court gives deference to the administrative body’s interpretation 

of its own regulations and findings of fact on particular issues that are within the special competence of the agency 

pursuant to applicable statutes. Essentially, the court retains jurisdiction but defers action until the agency has 

reviewed the case and employed its expertise. In instances where the court and the agency have concurrent 

jurisdiction, disputed factual issues should be evaluated by the agency because of its expertise, but legal issues 

should be left to the court to decide. Although no formula exists to evaluate the applicability of primary jurisdiction, 

our courts have been guided by a four-part test, which considers (1) whether the matter is within the conventional 

experience of judges; (2) whether the matter is peculiarly within the agency’s discretion, or requires expertise; (3) 

whether inconsistent rulings might disrupt the statutory scheme; and (4) whether prior application has been made to 

the agency. (pp. 17-20)

6. Primary jurisdiction is not applicable in this contribution claim. First, dischargers statutorily are afforded the 

same right as the DEP to sue other potentially responsible parties in order to recover contribution costs for 

contamination where other parties caused a portion of the discharge. Additionally, the Spill Act gives the court, not 

the DEP, jurisdiction over contribution claims. N.J.S.A. 58:10-23.11f(a)(2)(a). Indeed, here, the DEP implicitly 

conceded that a claim for contribution, and specifically the allocation of liability, is a form of recourse not within the 

DEP’s jurisdiction. Moreover, contribution claims do not necessitate the expertise of the DEP because allocating 

liability and considering expert testimony are matters within the conventional experience of judges. Therefore, the 

DEP and the courts share concurrent jurisdiction over the recovery of cleanup costs. (pp. 20-24)

7. Finally, a contribution plaintiff need not obtain the DEP’s written approval of the investigation and remediation 

plan prior to filing a claim for contribution. The Court reaches this conclusion based upon the plain language of the 

statute and the clear Legislative intent to amend the Spill Act to clarify and permit a private claim for contribution. 

The issue of allocation of liability is independent from the issue of the total amount of the costs. While dischargers 

are required to have written approval for the actual expenses that they incur for the purpose of remediation in order 

to seek contribution for those expenses, that is not a prerequisite to allocation of responsibility for the costs 

associated with the approved remediation. (pp. 25-27)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court 

for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and ALBIN, and JUDGES RODRÍGUEZ

and CUFF (both temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion. JUSTICE 

PATTERSON did not participate.
1

SUPREME COURT OF NEW JERSEY

A-46 September Term 2012

069083

MAGIC PETROLEUM CORPORATION,

Plaintiff-Appellant,

v.

EXXON MOBIL CORPORATION and 

MARIE TIRICO,

Defendants-Respondents,

and

TRENTON OIL COMPANY and M.M. 

WERTHEIM CORPORATION,

Defendants

and

EXXON MOBIL CORPORATION,

Defendant/Third-Party

Plaintiff-Respondent

v.

LINKING RING PETROLEUM,

Third-Party Defendant.

Argued April 1, 2014 – Decided July 28, 2014

On certification to the Superior Court, 

Appellate Division.

Michael G. Sinkevich, Jr., argued the cause 

for appellant (Lieberman & Blecher, 

attorneys; Stuart J. Lieberman, of counsel).

Robert T. Lehman argued the cause for 

respondent Exxon Mobil Corporation (Archer &
2

Greiner, attorneys; Mr. Lehman, Adam P. 

Baas, and Sarah A. Gribbin, on the briefs).

Lance J. Kalik submitted a letter in lieu of 

brief on behalf of respondent Marie Tirico 

(Riker Danzig Scherer Hyland & Perretti, 

attorneys).

Martha N. Donovan argued the cause for 

amicus curiae New Jersey Apartment 

Association (Norris McLaughlin & Marcus, 

attorneys; Ms. Donovan and Edward A. Hogan, 

on the brief).

Martha N. Donovan submitted a brief on 

behalf of amicus curiae Ironstate 

Development Co., Ltd. (Norris McLaughlin & 

Marcus, attorneys; Ms. Donovan and Edward A. 

Hogan, on the brief).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

When environmental contamination occurs, the Spill 

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

to -23.24, makes all dischargers jointly and severally liable 

for the entire cost of cleanup. The New Jersey Department of 

Environmental Protection (DEP or Department) is involved in a 

spill cleanup either by affirmatively compelling a “discharger” 

to remediate the site or by managing remediation accomplished by 

parties. Remediation expenses are the responsibility of the 

party or parties who are “in any way responsible” for the 

pollution. N.J.S.A. 58:10-23.11g. The Spill Act specifically 

authorizes a private right of action, thus allowing parties to 

seek contribution totaling an amount equal to the party’s share 
3

of liability for the remediation costs from other responsible 

parties. See N.J.S.A. 58:10-23.11f(a)(2)(a). 

In this appeal, we consider whether a property owner’s 

claims for contribution under the Spill Act must be deferred

under the doctrine of primary jurisdiction until after the 

conclusion of DEP remediation enforcement actions or whether a 

property owner may proceed against responsible parties to 

recover sums expended to remediate the site before the DEP 

concludes its involvement in the site.

The facts in this case led to two separate legal actions. 

In the first case, the DEP sued Magic Petroleum, Inc. (Magic) 

for expenses incurred during the remediation of hazardous 

material on land owned and operated by the company. Although 

Magic asserted that other parties were responsible, Magic bore 

the entire cost of cleanup pursuant to the DEP’s determination 

that Magic was a discharger. Magic then sought contribution 

from Exxon Mobil Corporation (ExxonMobil), the owner of 

neighboring land, to defray the cost of the cleanup. That 

action started the pending case. Magic’s claim was dismissed 

without prejudice by the trial court, which reasoned that, under 

the doctrine of primary jurisdiction, the contribution claim 

could only be filed following complete remediation of the site. 

The court adduced that deferring the case to the DEP would 

afford the Department time to employ its expertise in evaluating 

the full extent of the contamination and total costs of the 
4

cleanup, components essential to awarding the final allocation 

of costs following completion of the remediation. 

The Appellate Division affirmed the trial court’s decision. 

The appellate panel recognized that the Superior Court and the 

DEP have concurrent jurisdiction to determine whether ExxonMobil 

is a discharger, but the DEP has sole jurisdiction over 

identifying contaminants on the land and assessing the extent of 

the discharge in order to formulate the proper remediation plan. 

Furthermore, the panel held that a party must first obtain 

written approval of the remediation plan from the DEP before 

commencing a contribution claim under the Spill Act. 

While the extent of the cleanup has yet to be ascertained, 

we agree that the trial court may determine, subject to proofs, 

whether ExxonMobil is also responsible for the contamination. 

Moreover, we conclude that the trial court may assign liability 

to responsible parties, based on evidence presented at trial, 

but we note that the court may not be able to issue a final 

damages award. Further, we determine that a party need not 

obtain written approval of the remediation plan prior to filing 

a claim for contribution. Therefore, we reverse the judgment of 

the Appellate Division and remand to the trial court. 

I.

A.

In the early 1990s, Magic purchased Lot 19.01 in the 

Clarksburg area of Millstone Township. On that lot, Magic owned 
5

and operated a gasoline refueling and service station, which was 

subsequently discovered to be the source of ground and water 

contamination on the land. Across the street, ExxonMobil owned 

a parcel of land, designated as Lot 11,1 where it operated

another gasoline refueling station, rife with its own 

contamination issues. 

At the time of purchase, Magic was aware that its property

contained several underground storage tanks (USTs), that were 

leaking petroleum hydrocarbons into the soil and ground water. 

In fact, the DEP became involved with Lot 19.01 in 1989, years 

before Magic purchased the land, after the DEP detected strong 

petroleum odors and ionization on the land. Those contaminants 

were later determined to be a “discharge” pursuant to the Spill 

Act, N.J.S.A. 58:10-23.11b. As a result, two USTs were removed 

in 1991. 

In 1995, the DEP issued a Field Directive notifying Magic 

of the need to investigate and remediate the hazardous 

substances discharged on Lot 19.01. In 1997, Magic had three 

more USTs removed from the property. In 1999, Magic entered 

into an Administrative Consent Order (ACO) with the DEP, whereby 

Magic agreed to remediate the property under DEP oversight. The 

DEP issued an Administrative Order and Notice of Civil 

 

1 Defendant Marie Tirico purchased Lot 11 from ExxonMobil in 

1988. Tirico then sold Lot 11 to defendant Trenton Oil Company. 

Later, Magic’s principal, Avinash Vashisht, acquired Lot 11 and

transferred it to another corporation, Linking Ring Petroleum, 

also owned by Vashisht. 
6

Administrative Penalty Assessment on May 9, 2003, when, 

according to the DEP, Magic failed to comply with the ACO. 

Magic requested an administrative hearing and the case was 

transferred to the Office of Administrative Law (OAL). Magic 

asserted that the proceeding should be stayed to admit

ExxonMobil as a party so that liability could be allocated to 

each potentially responsible party accordingly. 

Magic also sent letters to the DEP requesting that the 

agency join ExxonMobil in the remediation plan. The DEP 

responded by letter dated August 21, 2003, directing that “the 

assessment of a percentage of the responsibility is best 

addressed in negotiation with ExxonMobil or before the [c]ourt.” 

An administrative hearing was held, and on November 1, 

2006, an Administrative Law Judge (ALJ) concluded that the 

contamination of Lot 19.01 was properly attributed to a 

discharge for which Magic was “in any way responsible” under 

N.J.S.A. 58:10-23.11g. The ALJ also found that Magic was in 

violation of the ACO. The DEP adopted the ALJ’s decision on 

December 18, 2006. 

Before completion of the OAL proceeding, Magic filed a 

complaint in Superior Court, Law Division in which it alleged 

that the 1999 ACO was a contract, that DEP breached the contract 

and that DEP breached the duty of good faith and fair dealing. 

A Law Division judge dismissed the case on October 4, 2006. 

Magic then appealed the dismissal of the case and the final 
7

decision of the DEP to the Appellate Division, which 

consolidated the cases and affirmed both judgments. We denied 

certification. Vashisht v. N.J. Dep’t. of Envtl. Prot., 198 

N.J. 473 (2009). 

B. 

On August 12, 2003, while the DEP proceedings were ongoing, 

Magic filed a claim for contribution in the Superior Court under 

the Spill Act, alleging that ExxonMobil and several other 

parties were responsible for a portion of the costs associated 

with the cleanup of the contamination on Lot 19.01. That claim 

gave rise to this appeal. Both Magic and ExxonMobil engaged in 

extensive discovery efforts, including serving and answering 

interrogatories, hiring experts, and obtaining reports regarding 

which party was responsible for the contamination of Lot 19.01. 

On June 14, 2010, ExxonMobil filed a notice to stay the 

case or to dismiss the complaint without prejudice. In support 

of its motions, ExxonMobil asserted that the DEP’s determination 

of necessary remediation projects must precede any court 

allocation of liability under the Spill Act. 

The court dismissed the case without prejudice, reasoning that, 

since the DEP was already on Magic’s property collecting data 

about the discharge contaminants, the allocation of liability 

would be more accurate if adjudged after the DEP had detailed 

information about the extent of the contamination and necessary 

remediation. The court focused on the DEP’s current role in the 
8

remediation on Lot 19.01 and the DEP’s function in the 

evaluation of the type of cleanup that would be required. That

assessment would substantially affect the dollar amount of 

cleanup costs to be paid by the responsible parties. Magic 

moved for reconsideration, which was denied. 

Magic appealed to the Appellate Division. In an 

unpublished opinion, the Appellate Division affirmed the trial 

court’s order dismissing the complaint without prejudice and 

affirming the denial of Magic’s request for reconsideration. 

The appellate panel reasoned that, while the Superior Court had 

sole jurisdiction to allocate the costs of remediation among 

liable parties, several other issues needed to be addressed 

before reaching the allocation of liability. 

Specifically, the Appellate Division stated that, although 

the court and the DEP had concurrent jurisdiction over whether

ExxonMobil was a “party in any way responsible,” only the DEP 

could identify the contamination, analyze the extent of the 

discharge, and devise a cleanup strategy. Those findings, the 

panel continued, needed to be made prior to the Superior Court’s 

allocation of liability. Relying on the doctrine of primary 

jurisdiction, the Appellate Division found that the unsettled 

issues would be best decided by the expertise of the DEP so as 

to avoid inconsistent rulings. The Appellate Division also 

declared that Magic, and any other party seeking contribution 
9

under the Spill Act, must obtain written approval from the DEP 

for the remediation plan prior to filing a contribution claim. 

Magic petitioned this Court, and we granted certification. 

213 N.J. 387 (2013).

II. 

Magic argues that the trial court’s dismissal of its 

contribution claim was improper because primary jurisdiction is 

not applicable. Relying on N.J.S.A. 58:10-23.11f, Magic asserts

that the Legislature did not include any language either 

limiting a party’s recourse in the courts or requiring that a 

party wait until after the environmental investigation is 

complete and the remedial action plan is approved before filing 

a contribution claim. Magic maintains that the plain language 

of the statute bestows upon the court broad powers to allocate 

liability in contribution claims, permitting the court to use 

“such equitable factors as the court determines are 

appropriate.” N.J.S.A. 58:10-23.11f(a)(2)(a). 

As a corollary, Magic contends that written approval by the 

DEP for the investigation and proposed remediation plan is not 

required prior to filing a claim for contribution, contrary to 

the Appellate Division’s decision. In support of this argument, 

Magic relies on the new regulatory scheme for site cleanup 

governed by the Site Remediation Reform Act, N.J.S.A. 58:10C-1 

to -29. That statute changed the mechanism for remediation 

projects by placing the bulk of oversight duties in the hands of 
10

licensed site remediation professionals2 (LSRPs) and retaining 

only minimal oversight responsibilities for the DEP. See

N.J.S.A. 58:10C-1.3; see also N.J.S.A. 58:10C-27. Magic argues 

that demanding written approval prior to the filing of a 

contribution claim is impractical and impossible in light of 

this legislation because the DEP no longer oversees remediation 

projects or provides approval for remediation plans. 

ExxonMobil argues that the trial court appropriately 

applied the doctrine of primary jurisdiction in dismissing the 

case without prejudice because only the DEP has the authority to 

determine the scope and nature of a party’s discharge liability. 

Further, ExxonMobil contends that the DEP should be allowed to 

ascertain specific facts within its expertise before the 

contribution claim can proceed, particularly because the DEP is 

required to verify the extent of discharge and evaluate the 

remediation plan on Magic’s property, in accordance with the 

ACO. 

Furthermore, ExxonMobil contends that in order for a party 

to recover in a contribution claim, the expenses for which the 

party seeks contribution must meet the definition of “cleanup 

 

2 Licensed site remediation professionals are individuals who 

independently oversee the cleanup of contaminated sites, 

ensuring that the process is conducted effectively and in 

compliance with New Jersey statutes and regulations. See

N.J.S.A. 58:10C-14. The Site Remediation Professional Licensing 

Board issues licenses for LSRPs based on strict criteria, 

including a particular level of education and experience in the 

environmental field. See N.J.S.A. 58:10C-3, -5.
11

and removal costs.” ExxonMobil contends that the Spill Act 

dictates that “cleanup and removal costs” are only those for 

which the party has obtained prior “written approval from the 

[D]epartment.” N.J.S.A. 58:10-23.11b. Accordingly, ExxonMobil 

insists that a party seeking contribution must have written 

approval for the remediation plan prior to filing a claim for 

contribution. 

The New Jersey Apartment Association and Ironstate 

Development Co. Ltd., appearing as amici curiae, join in Magic’s 

assertion that written approval from the DEP is not required 

prior to filing a claim for contribution. Amici reason that 

such a prerequisite would cause an exceptionally burdensome 

backlog of remediation cases for the DEP. 

III. 

A.

In 1976, New Jersey Legislature enacted the Spill Act in an 

effort to “stem the ‘threat to the economy and environment of 

the State’ posed by the ‘discharge of petroleum products and 

other hazardous substances.’” Marsh v. N.J. Dep’t. of Envtl. 

Prot., 152 N.J. 137, 144 (1997) (quoting N.J.S.A. 58:10-23.11a); 

see also Buonviaggio v. Hillsborough Twp. Comm., 122 N.J. 5, 8 

(1991). The stated purpose of the Spill Act is 

to exercise the powers of this State to 

control the transfer and storage of 

hazardous substances and to provide 

liability for damage sustained within this 

State as a result of any discharge of said 
12

substances, by requiring the prompt 

containment and removal of such pollution 

and substances, and to provide a fund for 

swift and adequate compensation to resort 

businesses and other persons damaged by such 

discharges.

[N.J.S.A. 58:10-23.11a.]

Importantly, the Spill Act prohibits the “discharge” of 

“hazardous substances” into the environment and provides for the 

cleanup of that discharge. N.J.S.A. 58:10-23.11c; accord

Buonviaggio, supra, 122 N.J. at 8. In keeping with the 

Legislature’s intent that the Spill Act be liberally construed,3

“discharge” is defined broadly as 

any intentional or unintentional action or 

omission resulting in the releasing, 

spilling, leaking, pumping, pouring, 

emitting, emptying or dumping of hazardous 

substances into the waters or onto the lands 

of the State, or into waters outside the

jurisdiction of the State when damage may 

result to the lands, waters, or natural 

resources within the jurisdiction of the 

State.

[N.J.S.A. 58:10-23.11b.]

Moreover, under provisions of the Spill Act, the DEP is 

charged with managing public funds to quickly and efficiently 

restore lands spoiled with environmental contamination. Marsh, 

supra, 152 N.J. at 145. Accordingly, the DEP also is authorized 

to “act to clean up and remove or arrange for cleanup and 

removal of such discharge or may direct the discharger to clean 

 

3 “The Spill Act being necessary for the general health, safety, 

and welfare of the people of this State, shall be liberally 

construed to effect its purposes.” N.J.S.A. 58:10-23.11x. 
13

up and remove or arrange for the cleanup and removal of the 

discharge.” N.J.S.A. 58:10-23.11f(a)(1). The Legislature 

established strict liability for causing environmental 

contamination: 

[A]ny person who has discharged a hazardous 

substance, or is in any way responsible for 

any hazardous substance, shall be strictly 

liable, jointly and severally, without 

regard to fault, for all cleanup and removal 

costs no matter by whom incurred.

[N.J.S.A. 58:10-23.11g(c)(1).] 

Therein, the Legislature also mandated that dischargers are 

jointly and severally liable. Ibid. Thus, the DEP may collect 

the entire amount of cleanup costs from one discharger, even 

when that party was only partially responsible for the spill. 

However, the DEP is not the only entity entitled to recover 

cleanup costs. In 1992, the Legislature amended the Spill Act

to clarify that dischargers ordered by the DEP to pay for the 

entirety of cleanup costs were entitled to seek contribution 

from other responsible parties, based in part, on “the normal 

course of tort law.” L. 1991, c. 372, § 14; see Statement to S.

2657, A. 3659 at 6 (June 11, 1990). 

At the time of the amendment’s passage, the “normal course 

of tort law” included the already-existing right of 

contribution, codified in the Joint Tortfeasors Contribution 

Law, N.J.S.A. 2A:53A-1, as modified by the Comparative 

Negligence Act, N.J.S.A. 2A:15-5.1. See Young v. Latta, 123 
14

N.J. 584, 592 (1991). The right of contribution is a statutory 

construction. See N.J.S.A. 2A:53A-3; Young, supra, 123 N.J. at 

588. The basic purpose in creating the right of contribution 

was to achieve “a sharing of the common responsibility [among 

tortfeasors] according to equity and natural justice.” 

Sattelberger v. Telep, 14 N.J. 353, 367-368 (1954). Therein, 

the general right of contribution invokes several liability by 

intending that the defendant-in-contribution shall pay no more 

than the party’s percentage of liability. N.J.S.A. 2A:15-

5.3(e). 

The purpose of the contribution amendment to the Spill Act 

was to encourage prompt and effective remediation by those 

parties responsible for contamination who might otherwise be 

reluctant to cooperate in the remediation efforts for fear of 

bearing the entire cost of cleanup when other parties were also

responsible for the creation and continuation of the discharge. 

S. Envtl. Quality Comm., Statement to S. Comm. Substitute for S.

No. 2657 and Assemb. No. 3659, 204 Leg. at 1-2 (Dec. 10, 1990)

[hereinafter Statement to S. Substitute S. No. 2657]. In 

pertinent part, the Spill Act provides that

[w]henever one or more dischargers or 

persons cleans up and removes a discharge of 

a hazardous substance, those dischargers and 

persons shall have a right of contribution 

against all other dischargers and persons in 

any way responsible for a discharged 

hazardous substance or other persons who are 

liable for the cost of the cleanup and 
15

removal of that discharge of a hazardous 

substance.

[N.J.S.A. 58:10-23.11f(a)(2)(a).] 

The amendment expressly created a separate contribution 

cause of action for private parties seeking to recover a portion 

of the cleanup costs. See Hous. Auth. v. Suydam Investors, 

L.L.C., 177 N.J. 2, 18 (2003). “In order to accomplish a fair 

and equitable ultimate sharing of the remediation burden among 

all responsible parties and thereby to promote contamination 

cleanup, N.J.S.A. 58:10-23.11f(a)(2)(a) casts a broad net 

encompassing ‘all other dischargers and persons in any way 

responsible for a discharged hazardous substance . . . .’” 

Pitney Bowes, Inc. v. Baker Indus., Inc., 277 N.J. Super. 484, 

487-88 (App. Div. 1994); see also Cyktor v. Aspen Manor Condo. 

Ass’n, 359 N.J. Super. 459, 476 (App. Div. 2003) (internal 

citations omitted) (stating that contribution provision was 

enacted to “provide a right of contribution to ‘accomplish a 

fair and equitable . . . sharing of the remediation burden among 

all responsible parties’”) (alteration in original) (quoting 

Pitney Bowes, supra, 277 N.J. Super. at 488). 

Importantly, the Legislature directed that contribution 

plaintiffs seek relief before a court. The Legislature bestowed 

upon the courts liberal discretion to “allocate the costs of 

cleanup and removal among liable parties using such equitable 

factors as the court determines are appropriate.” N.J.S.A.
16

58:10-23.11f(a)(2)(a). The Legislature went further to ensure 

private entity dischargers were not prevented from seeking 

recourse in the courts, dictating that “[n]othing in [N.J.S.A.

58:10-23.11f(a)(2)(a)] shall affect the right of any party to 

seek contribution pursuant to any other statute or under common 

law.” Ibid. 

Federal courts interpreting the Spill Act have set out 

several factors, which may provide guidance to New Jersey courts 

allocating contribution costs for remediation of hazardous 

substances. The Federal District Court in New Jersey suggests 

the following considerations, better known as the “Gore factors” 

(1) the ability of the parties to 

demonstrate that their contribution to a 

discharge, release or disposal of a 

hazardous waste can be distinguished; 

(2) the amount of the hazardous waste 

involved; 

(3) the degree of toxicity of the hazardous 

waste involved; 

(4) the degree of involvement by the parties 

in the generation, transportation, 

treatment, storage, or disposal of the 

hazardous waste; 

(5) the degree of care exercised by the 

parties with respect to the hazardous waste 

concerned, taking into account the 

characteristics of such hazardous waste; and 

(6) the degree of cooperation by the parties 

with the federal, state or local officials 

to prevent any harm to the public health or 

the environment.
17

[Lenox Inc. v. Reuben Smith Rubbish Removal, 

91 F. Supp. 2d 743, 747 (D.N.J. 2000).

(citation omitted).]

Additionally, courts may look to any other “equitable factors as 

the court determines are appropriate” to allocate liability. 

N.J.S.A. 58:10-23.11f(a)(2)(a). 

Thus, under the Spill Act, the Legislature established a 

private right of action in contribution so that dischargers 

designated by the DEP could share the cost of remediation with 

additional potentially responsible dischargers not initially 

designated by the DEP. The Legislature focused on the courts as 

the venue to allocate liability percentages for such recourse, 

while the DEP continued to apply its expertise in the 

remediation of the site. 

B.

This appeal also requires us to address the doctrine of 

primary jurisdiction. The doctrine of primary jurisdiction is 

applicable when a case is properly filed in the Superior Court 

but the court declines original jurisdiction, referring specific 

issues to the appropriate administrative body. Daaleman v. 

Elizabethtown Gas Co., 77 N.J. 267, 269 n.1 (1978). The court 

gives deference to the administrative body’s interpretation of 

its own regulations and findings of fact on particular issues 

that are within the special competence of the agency pursuant to 

applicable statutes. See ibid. Essentially, the court retains 

jurisdiction but defers action until the agency has reviewed the 
18

case and employed its expertise. See Campione v. Adamar, Inc., 

155 N.J. 245, 264 (1998). 

This doctrine is especially important for “‘promoting 

proper relationships between the courts and administrative 

agencies charged with particular regulatory duties.’” Boss v. 

Rockland Elec. Co., 95 N.J. 33, 40 (1983) (quoting United States 

v. W. Pac. R.R. Co., 352 U.S. 59, 63-64, 77 S. Ct. 161, 164-65, 

1 L. Ed. 2d 126, 132 (1956)).

In instances where the court and the agency have concurrent 

jurisdiction, disputed factual issues should be evaluated by the 

agency because of its expertise, but legal issues should be left 

to the court to decide. See ibid. (“[W]here the resolution of a 

contested legal issue properly brought before a court 

necessarily turns on factual issues within the special province 

of an administrative agency, the court should refer the factual 

issues to that agency.”). On the other hand, “[w]hen the legal 

rights of parties are clear, it is unjust and unfair to burden 

them with an administrative proceeding to vindicate their 

rights.” Ibid. (citing N.J. Civil Serv. Ass’n v. State, 88 N.J.

605, 613 (1982)). 

In Boss, a utility company sought to cut down trees on a 

residential property rather than trim and prune them under a 

long-standing easement. Id. at 36-37. This Court concluded 

that a provision in the easement needed to be interpreted in 

accordance with regulations of the Board of Public Utilities
19

(BPU) prior to any judicial action, reasoning that “when the 

determination of the legal issue must be preceded by ‘the taking 

of the necessary evidence and the making of necessary factual 

findings,’ it is best done by the administrative agency 

specifically equipped to inquire into the facts.” Id. at 39-40 

(quoting Roadway Express, Inc. v. Kingsley, 37 N.J. 136, 140 

(1962)). Thus, the Court remanded the case, instructing that 

the BPU Commissioners make factual findings, which would then be 

submitted to the trial court for a decision on the legal issue. 

Id. at 42.

By contrast, this Court found that, in the interest of 

justice and an expeditious remedy, a taxpayer need not pursue a 

formal appeal to an agency for a refund of over-assessed taxes 

paid because of clerical errors on the part of the municipality. 

Farmingdale Realty Co. v. Borough of Farmingdale, 55 N.J. 103, 

110-11 (1969). Focusing on administrative exhaustion, this 

Court reasoned that, although the taxpayer might have appealed 

to the agency, the trial court appropriately could enter a 

judgment because the case involved only legal questions. Id. at 

112-13.

Moreover, where the Legislature did not provide an adequate 

remedy for relief before the agency and did not intend to 

prevent persons from seeking such recourse before the courts, we

held that individuals may bring common-law claims in the 

Superior Court, even when the subject matter of the claims is 
20

related to the agency’s purview. Campione, supra, 155 N.J. at 

260. In Campione, the plaintiff sought to recover money damages 

for malicious prosecution, breach of contract, and 

discrimination based on the defendant casino’s enforcement of 

gaming regulations against plaintiff for card counting. Id. at 

249. When analyzing the Casino Control Act (CCA), N.J.S.A.

5:12-1 to -142, this Court found that the Legislature did not 

create a forum for private individuals to bring grievances 

before the Casino Control Commission (CCC), and the Court 

therefore held that the plaintiff had properly filed his claims 

in the Superior Court. Id. at 262. On the other hand, the 

Court determined that primary jurisdiction was applicable to the 

extent that the claim depended on interpretation of the CCA or 

agency regulations, and ordered that the case should be referred 

to the CCC for consideration of those matters alone. Id. at 

264. 

Although no formula exists to evaluate the applicability of 

primary jurisdiction, our courts have been guided by a four-part 

test, basing primary jurisdiction decisions on 

1) whether the matter at issue is within the 

conventional experience of judges; 2) 

whether the matter is peculiarly within the 

agency’s discretion, or requires agency 

expertise; 3) whether inconsistent rulings 

might pose a danger of disrupting the 

statutory scheme; and 4) whether prior 

application has been made to the agency. 

[Boldt v. Correspondence Mgmt., Inc., 320 

N.J. Super. 74, 85 (App. Div. 1999).]
21

IV. 

Applying these principles to this appeal, we conclude first 

that primary jurisdiction is not applicable in the setting of 

this contribution claim. We hold that plaintiff property owners 

or other responsible parties are permitted to file contribution 

claims in Superior Court, and a court may allocate liability 

before the final resolution of a site remediation plan by the 

DEP. 

First, dischargers statutorily are afforded the same right 

as the DEP to sue other potentially responsible parties in order 

to recover contribution costs for contamination where other 

parties caused a portion of the discharge. There is no question 

that the DEP has the authority to sue “any party responsible” 

for cleanup costs following the DEP’s remediation of a site. 

See N.J. Dep’t. of Envtl. Prot. v. Dimant, 212 N.J. 153, 159 

(2012) (finding that to recover costs from responsible party, 

DEP must show reasonable nexus between discharge, discharger 

and contamination at the damaged site). At the time of filing, 

and anytime as permitted by Rule 4:29-1, the DEP may join as 

defendants in the suit as many or as few potentially responsible 

parties as the agency deems necessary. N.J.S.A. 58:10-

23.11g(c). Because the DEP may join a party at the onset of a 

claim, prior to determining the full extent of the 

contamination, it follows that a private entity is granted that 
22

same right to hold a responsible party accountable through a 

contribution claim. To deny this right would be fundamentally 

unfair, especially where the contribution plaintiff could be 

liable for a substantial amount of cleanup costs, even when not 

entirely -- or even substantially -- responsible for the 

contamination. 

Additionally, the Spill Act gives the court, not the DEP, 

jurisdiction over contribution claims. N.J.S.A. 58:10-

23.11f(a)(2)(a). For example, if the DEP initiates 

administrative proceedings against a discharger for 

contamination of land, a discharger is permitted to file a 

contribution claim so that the court can assign liability among 

the potentially responsible parties. In such situations, 

because the Legislature did not intend for private parties to 

use the DEP as a forum to bring contribution claims, the only 

recourse private-party dischargers have to obtain contribution 

from other responsible parties is in the Superior Court. Just 

as the CCC was not an appropriate place to bring common-law 

claims against casinos, Campione, supra, 155 N.J. at 262, here, 

the DEP is not the proper venue for dischargers to bring 

contribution claims. Through the Spill Act, the Legislature 

instructed that contribution claims should be filed in the 

Superior Court. See N.J.S.A. 58:10-23.11f(a)(2)(a). 

In its August 21, 2003 letter to Magic, the DEP implicitly 

conceded that a claim for contribution, and specifically the 
23

allocation of liability, is a form of recourse not within the 

DEP’s jurisdiction. In that letter, the DEP expressly directed 

that the determination of the percentage of liability is best 

resolved either between the parties or “before the [c]ourt.” 

Thus, the DEP clarified that the agency was not the proper forum 

in which to debate or distribute liability among potentially 

responsible parties. 

Moreover, contribution claims do not necessitate the 

expertise of the DEP. A contribution claim allocates liability. 

Assigning liability is a matter within the conventional 

experience of judges. Judges are tasked with assigning 

liability in related Spill Act cases where the DEP sues a party 

responsible for contamination of a site to recover cleanup 

costs. Both in contribution cases and in general Spill Act 

litigation, there is no question that the trial court may engage 

in allocating a percentage of liability based on the factual and 

expert proofs regarding the presence and volume of contaminants 

on the land and the origin of those contaminants.

Additionally, the testimony of expert witnesses is both a 

necessary aspect of the contribution case, integral to proving 

liability, and a trial component with which judges are 

intimately familiar. Thus, although the contribution claim 

contains factors within the purview of the DEP, DEP expertise is 

not essential in reaching a final decision on liability 

allocation. 
24

Therefore, it follows that the DEP and the courts share 

concurrent jurisdiction over the recovery of cleanup costs. 

Private parties are required to turn to the courts to seek 

contribution from other entities that caused contamination on 

the land in the form of a percentage of liability. Ultimately, 

the final determination of costs will be dictated by the 

remediation project and overseen by the DEP and the LSRPs. 

Finally, it would be contrary to the stated goals of the 

Spill Act -- which promotes prompt remediation -- to force a 

discharger to bear the burden of the entire cleanup cost until 

such time as the remediation is fully complete. The completion 

of a site’s remediation may take many years and could involve

substantial expenses. To force one party to shoulder such an 

amount could prevent remediation from proceeding promptly by 

generating a disincentive for the party to put forth the 

financial contribution. Similarly, compelling one party to pay 

all the cleanup costs would be inimical to the stated goals of 

the Spill Act, particularly when that one party was not entirely 

at fault for all of the contamination. Therefore, we hold that 

a party determined to be a discharger and held responsible for 

the cost of cleanup by the DEP is entitled to bring a 

contribution claim against other potentially responsible parties 

before the final tally of cleanup costs. Such a determination 

is consistent with the Legislature’s intent to encourage 

expeditious and efficient remediation of site contamination. 
25

V. 

We next turn our attention to whether the DEP’s written 

approval of the investigation and remediation plan is needed 

prior to filing a claim for contribution. We conclude that it 

is not. We base this decision on the plain language of the 

statute and the clear Legislative intent to amend the Spill Act 

to clarify and permit a private claim for contribution. 

ExxonMobil maintains that N.J.S.A. 58:10-23.11f(a)(2)(a)

permits parties to only recover “clean up and removal costs” in 

a contribution claim. N.J.S.A. 59:10-23.11f(a) provides that,

[w]henever one or more dischargers or 

persons cleans up and removes a discharge of 

a hazardous substance, those dischargers and 

persons shall have a right of contribution 

against all other dischargers and persons in 

any way responsible for a discharged 

hazardous substance or other persons who are 

liable for the cost of the cleanup and 

removal of that discharge of a hazardous 

substance.

[N.J.S.A. 58:10-23.11f(a) (emphasis added).]

The Legislature defines “cleanup and removal costs” as

all direct costs associated with a 

discharge, . . . incurred by the State or 

its political subdivisions or their agents 

or any person with written approval from the 

department in the: (1) removal or attempted 

removal of hazardous substances.

[N.J.S.A. 58:10-23.11b (emphasis added).]

Accordingly, ExxonMobil asserts that Magic cannot recover for 

contribution expenses until Magic has “written approval from the 

department.” We disagree. 
26

The Legislature was clear in instructing contribution 

plaintiffs on the necessary proofs to succeed on a claim for 

contribution, dictating that plaintiffs need only to prove that 

a contribution defendant is liable for a discharge under the 

Spill Act in order to prevail on a claim. N.J.S.A.

58:10-23.11f(a)(2)(a). (“In an action for contribution, the 

contribution plaintiffs need prove only that a discharge 

occurred for which the contribution defendant or defendants are 

liable pursuant to the provisions of [N.J.S.A. 58:10-23.11g(c)], 

and the contribution defendant shall have only the defenses to 

liability available to parties pursuant to [N.J.S.A. 58:10-

23.11g(d)].”).

Thus, the argument in favor of requiring written approval 

of a remediation plan is of no moment in this case. The issue 

of allocation of liability is independent from the issue of the 

total amount of the costs. N.J.S.A. 58:10-23.11f(a)(2)(a) does 

not address the final determination of costs, only the

allocation of liability. Magic is not requesting that the court 

assign a final allocation of cleanup costs. Rather, Magic is 

only seeking that the court assign a percentage of liability, a 

determination that does not require DEP approval.

According to the plain language of the statute, it is clear 

that N.J.S.A. 58:10-23.11f(a)(2)(a) limits cleanup and removal 

costs to only those costs approved by the DEP. However, the

provision does not pertain to the allocation of those costs. 
27

While dischargers are required to have written approval for the 

actual expenses that they incur for the purpose of remediation 

in order to seek contribution for those expenses, that is not a 

prerequisite to allocation of responsibility for the costs 

associated with the approved remediation. 

Mandating written approval prior to the filing of a 

contribution claim would thwart the purpose of allowing

contribution claims, which the Legislature explained was to 

encourage expeditious and efficient remediation. See Statement 

to S. Substitute S. No. 2657, supra, at 1-2. Forcing 

contribution plaintiffs to obtain written approval from the DEP 

would lengthen the cleanup process and discourage parties from 

cooperating with the DEP. 

Therefore, we hold that written approval for the 

remediation plan is not required prior to filing a contribution 

claim. 

VI.

The judgment of the Appellate Division is reversed and the 

case is remanded for proceedings consistent with this opinion. 

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, and ALBIN, and 

JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in 

JUSTICE FERNANDEZ-VINA’s opinion. JUSTICE PATTERSON did not 

participate.
1

SUPREME COURT OF NEW JERSEY

NO. A-46 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

MAGIC PETROLEUM CORPORATION,

Plaintiff-Appellant,

v.

EXXON MOBIL CORPORATION and

MARIE TIRICO,

Defendants-Respondents,

and

TRENTON OIL COMPANY and M.M.

WERTHEIM CORPORATION,

Defendants,

and

EXXON MOBIL CORPORATION,

Defendant/Third-Party

Plaintiff-Respondent,

v.

LINKING RING PETROLEUM,

Third-Party Defendant.

DECIDED July 28, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice Fernandez-Vina

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST REVERSE AND 

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON ----------------------- ---------------------

JUSTICE FERNANDEZ-VINA X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 6