SANDRA DORRELL VS. WOODRUFF ENERGY, INC. (L-0343-11, SALEM COUNTY AND STATEWIDE)

S
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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3144-17

SANDRA DORRELL and
SANDRA DORRELL t/a OLD
ALLOWAY MERCHANDISE,

          Plaintiffs-Appellants/
          Cross-Respondents,

v.

WOODRUFF ENERGY, INC.,

          Defendant-Respondent,

and

GULF OIL LIMITED
PARTNERSHIP and CHEVRON
U.S.A.,

          Defendants-Respondents/
          Cross-Appellants,

and

HARLEYSVILLE GROUP, INC.,
HARLEYSVILLE INSURANCE
COMPANY, and FARMERS
MUTUAL FIRE INSURANCE
CO. OF SALEM COUNTY,

     Defendants.
____________________________

           Argued January 27, 2020 – Decided March 11, 2021

           Before Judges Messano, Ostrer and Vernoia.

           On appeal from the Superior Court of New Jersey, Law
           Division, Salem County, Docket No. L-0343-11.

           Louis Giansante argued the cause for appellants/cross-
           respondents (Giansante & Associates, LLC, attorneys;
           Louis Giansante, of counsel and on the briefs).

           Matthew S. Slowinski argued the cause for
           respondent/cross-appellant Chevron U.S.A. Inc. as
           successor to Gulf Oil Limited Partnership (Slowinski
           Atkins, LLP, attorneys; Matthew S. Slowinski, on the
           briefs).

           Mitchell H. Kizner argued the cause for respondent
           Woodruff Energy, Inc. (Flaster Greenberg, PC,
           attorneys; Mitchell H. Kizner, on the brief).

           Cristina Stummer argued the cause for amicus curiae
           The Fuel Merchants Association of New Jersey (Saul
           Ewing Arnstein & Lehr LLP, attorneys; M. Paige
           Berry, Cristina Stummer and Ryan L. DiClemente, of
           counsel and on the brief).

     The opinion of the court was delivered by

OSTRER, J.A.D.




                                                                    A-3144-17
                                     2
      This case, which returns to us after our remand and a bench trial, involves

claims for private contribution under the New Jersey Spill Compensation and

Control Act (Spill Act or Act), N.J.S.A. 58:10-23.11 to -23.11z.1 Plaintiff

Sandra Dorrell once operated a general store on a property she has owned since

1984 in Alloway Township. In preparing to sell her property, she learned that

petroleum products had contaminated the soil and groundwater. It was

undisputed that kerosene or fuel oil was present. However, according to one

plaintiff's expert, gasoline was present, too.      Dorrell claimed defendants

Woodruff Energy, Inc. and Chevron U.S.A. Inc. (improperly named Chevron

Corp.) were persons "in any way responsible for [the] . . . hazardous substance"

found on her property and were "strictly liable, jointly and several ly, without

regard to fault, for all cleanup and removal costs." N.J.S.A. 58:10-23.11g(c)(1).

      Woodruff regularly delivered fuel oil to a 1000-gallon above-ground

storage tank (AST) in the store's dirt-floored basement. Sometime in the 1990s,

gallons of oil spilled onto the dirt floor. Despite clean-up efforts, oil evidently

seeped into the ground. The court found that Woodruff did not own or control

the tank, nor did Woodruff over-fill the tank as Dorrell alleged. The spill


1
  We previously reversed the trial's court grant of summary judgment dismissal
on statute of limitations grounds. Dorrell v. Woodruff Energy, No. A-3585-13
(App. Div. Sep. 30, 2015).
                                                                             A-3144-17
                                        3
evidently resulted from a tank rupture. And there was an insufficient nexus

between Woodruff and the spill to find that Woodruff was a person "in any way

responsible" for the oil in the ground.

      In appealing the no-cause verdict on her claim against Woodruff, Dorrell

contends the court misapplied the Spill Act by requiring her to show Woodruff

was at fault for the tank spill. She contends that Woodruff, by delivering the

fuel oil that spilled, was a party in any way responsible for the contamination.

With the support of amicus, Fuel Merchants Association, Woodruff argues that

its sale was not sufficient to trigger responsibility under the Spill Act. We agree,

and affirm the court's verdict dismissing Dorrell's claims against Woodruff.

      Woodruff was not the only firm that delivered petroleum products to

Dorrell's property. For many years, long before Dorrell owned the general store,

the store sold gasoline from curbside pumps, and kerosene from inside the store.

Dorrell alleged that Chevron's predecessor, Gulf Oil Corp., delivered gasoline

to three underground storage tanks (USTs), including a 1000-gallon tank that

Gulf installed in the late 1950s and then abandoned, and two older 550 -gallon

tanks that were removed. Dorrell alleged that Gulf also delivered kerosene to




                                                                              A-3144-17
                                          4
the AST that later failed.2 After the 1950s, Gulf ceased its deliveries, and

Woodruff took its place. Gasoline sales evidently stopped altogether in the early

1960s after the store's previous owner died.

      The trial court held that neither Chevron nor Woodruff were liable for any

fuel oil or kerosene contamination. However, the court held that Chevron was

likely the owner and responsible party for the 1000-gallon UST, and it likely

once contained gasoline, which it discharged into the ground. Therefore, the

court held that Chevron was liable under the Spill Act to investigate the tank,

and if it confirmed that the tank once contained gasoline, then Chevron would

be "responsible . . . for discharges and to remediate, if necessary under the

applicable regulations, the gasoline contamination" on and off the site. But, if

Chevron could demonstrate, after a remedial investigation, that the tank did not

contain gasoline, its "responsibility would end." After the trial judge retired,

another judge denied Chevron's motion for a judgment notwithstanding the

verdict, or a new trial.

      Chevron cross-appeals on several grounds.       It contends there was no

competent evidence of gasoline in the ground or groundwater; and the court



2
  Thus, two 1000-gallon tanks are involved in this case: an AST in the basement
that was removed in the 1990s; and a UST extant beneath the sidewalk.
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relied on the net opinion of an expert unqualified to identify petroleum

contaminants, or to opine about causation of contamination. Chevron also

contends it is not liable because it does not own the 1000-gallon UST. We are

constrained to agree that the trial court never found Hopkins qualified to render

the opinions he offered at trial, nor did he demonstrate that his methodology was

reliable. We therefore remand for a finding on the admissibility of his opinion.

                                        I.

      It is unchallenged on appeal that Dorrell's property is contaminated with

fuel oil or kerosene from the failure of the basement AST. Experts for Dorrell,

Woodruff, and Chevron all chemically analyzed samples drawn from soil

borings and wells near the tank, and north of it, in the direction that groundwater

flowed. A hydrocarbon fingerprinting expert for Dorrell, Bruce Torkelson,

identified the contaminant as a "weathered m[iddle] distillate" which was "19

[years old] plus or minus two years." Torkelson said it was probably kerosene,

but fuel oil was also a middle distillate; gasoline was not. Woodruff's expert in

contaminant identification and age dating, William Silverstein, P.E., agreed with

Torkelson's opinion that the soil and water samples contained kerosene.

Chevron's sole witness, Dr. Joseph Lifrieri, was qualified as an expert in

geological environmental engineering, fingerprinting, and age dating.           Dr.


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                                        6
Lifrieri concluded the samples showed a "fuel oil, diesel-type of contamination"

of the site.

         It is also undisputed on appeal that Dorrell owned the 1000-gallon AST

that leaked petroleum product onto the ground. After Dorrell and her late

husband purchased the property, they installed an oil-fed furnace (replacing a

coal-fed one) and utilized the pre-existing 1000-gallon tank for the fuel oil,

which they purchased from Woodruff. In the mid-1990s, Dorrell installed a new

275-gallon fuel-oil AST. Woodruff was not responsible for maintaining either

tank.3

         The genuine factual controversy on appeal pertains to the court's finding

that Dorrell's property was also contaminated with gasoline from the 1000-

gallon UST. The trial court relied on Dorrell's sole expert witness on gasoline

contamination — Craig Hopkins, a licensed site remediation professional who

holds a bachelor's degree in Earth Sciences.


3
     A significant part of trial testimony pertained to Dorrell's claim that
contamination also came from Woodruff's overfilling the 275-gallon tank that
she installed to replace the old tank in the late 1990s. Woodruff denied the over-
fill allegation, and presented evidence that it never employed the two persons
Dorrell identified by name as being involved in the alleged overfill and its
cleanup. A Woodruff witness testified instead that Dorrell called Woodruff for
help after she discovered a pool of oil in her basement, which emanated from a
failure of the 1000-gallon tank. On appeal, Dorrell does not challenge the court's
fact-finding that the basement spill resulted from the rupture and not an overfill.
                                                                             A-3144-17
                                         7
      Unlike the other experts who testified, Hopkins was not qualified to

identify petroleum products based on chromatographic studies or hydrocarbon

fingerprinting. He held a degree in earth science. He was a licensed site

remediation professional (LSRP). See N.J.S.A. 58:10C-1 to -29. He had been

involved in as many as 1000 site investigations, most involving petroleum

hydrocarbons. However, he had never testified as an expert.

      He admitted he was not an expert in age dating. He also admitted that he

"sent out samples to determine the type of contaminant" because that was not

his "expertise." He relied on laboratories to identify contaminants. He also

stated he had never testified about the cause of a release.

      Dorrell's counsel offered Hopkins "as an expert in subsurface

investigation, particularly of petroleum hydrocarbons." Counsel explained that

would include identifying contaminants and their source. He asserted that

LSRPs typically determine whether contamination originated on or off site.

      The court qualified Hopkins as an expert in investigating subsurface

conditions. But, responding to Chevron's motion in limine, the court held

Hopkins was not qualified to identify a specific contaminant, because he

"indicated that he can't identify the specific contaminant . . . [and] has to send

that out for testing."   Also, absent "more foundation," the court withheld


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                                        8
qualifying him as an expert on proximate cause, although the court left open the

possibility he could be qualified later. But, the court did not expressly revisit

the issue of Hopkins's qualifications to opine about causation.

      Nonetheless, over Chevron's objection, the court permitted Hopkins to

opine, based on what amounted to circumstantial evidence, that gasoline was

present on the site, gasoline contamination was caused by discharges from the

UST, and the UST was installed by Gulf.

      In reaching his opinion, Hopkins relied in part on his understanding of

how the prior owners used the property, and where they located gasoline

dispensers, pumps, and USTs. Hopkins based that understanding in part on

documents and contracts between Gulf and the prior owner, which Dorrell found

in the store's basement; on multiple historic maps; and on his surveys of the

present site, including technology to locate USTs.       He also relied on his

interpretation of chemical analyses of samples from wells and soil-borings,

although none of those analyses included opinions that the samples contained

gasoline.4



4
   The historic maps were "Sanborn maps." The Sanborn Map Company
prepared detailed maps of municipalities for use by fire insurers. As gasoline
USTs would be a hazard of interest to fire insurers, Sanborn usually noted them
on its maps. One witness testified the same was not true of fuel oil USTs.
                                                                           A-3144-17
                                       9
      The site is located on the northwest corner of West Main Street, runni ng

east-west, and Greenwich Street, running north-south. Hopkins stated that the

old general store sold gasoline from two curbside dispensers in front of the store,

along West Main Street. Two underground tanks were once located on the same

side of the property, near the dispensers. An old lease between Gulf and the

prior owner referred to two 550-gallon USTs and pumps. Sales receipts referred

to Gulf's delivery of two brands of gasoline. Hopkins concluded the two 550-

gallon USTs and pumps were later removed, as his survey could not locate them,

but they were not removed at the same time. There was also no sign of the

above-ground dispensers, which Dorrell said did not exist when she purchased

the property.

      But, Hopkins's survey located a 1000-gallon UST under the sidewalk

along Greenwich Street, on the east side of the property.         He also located

underground piping connecting the tank to the house, as opposed to the area of

the old dispensers. Yet, Hopkins ultimately opined that the large UST stored

gasoline. He relied in part on a 1958 contract in which Gulf agreed to install

and lease to the prior owner a 1080-gallon UST. That was around the same time

that a document referred to one of the 550-gallon tanks as "leaky." He concluded

that the referenced 1080-gallon tank must be the 1000-gallon tank he located


                                                                             A-3144-17
                                       10
along Greenwich Street. A 1955 agreement between Gulf and the store's prior

operator included a hand-written notation, "1 - 1000 gal Tank - installed 1958"

among the list of equipment that Gulf loaned and installed on the premises. 5

      Chevron's expert, Lifrieri, opined that the piping indicated that the tank

did not store gasoline; rather, it stored a petroleum product that was either used

or sold inside the store. Besides, Lifrieri stated, if the tank were intended for

gasoline, it would have been located much closer to the dispensers on West Main

Street. Noting that a relatively new 1080-gallon tank retained significant value,

Lifrieri suggested that Gulf installed its 1080-gallon UST close to the

dispensers, and then removed it after the store ceased gasoline sales in the early

1960s.

      Evidently, a 1959 Sanborn map did not indicate there was a 1000-gallon

tank along Greenwich Street. At trial, Hopkins acknowledged that he explained



5
   The 1955 agreement between Gulf and the store's prior owner governed the
retail sale of petroleum products and loaned and installed certain identified
equipment, included "2 - 550 Gal. Tanks." The form was pre-printed and
included type-written inserts dating it and identifying the leased equipment. The
court ruled that the handwritten words, "One Leaking Tank Taken out" with an
arrow pointing to the type-written entry "2- 550 Gal. Tanks" was inadmissible
hearsay, and not admissible for the truth of the matter asserted; but the experts
could rely on it. However, the court found as fact that a 1000-gallon tank was
installed in 1958. Around 1958, the store turned from selling two brands of Gulf
gasoline to one, resulting in the need for just one gasoline storage tank.
                                                                            A-3144-17
                                       11
the omission in a pre-trial report by noting that Sanborn maps did not show

private fuel oil tanks. In other words, Hopkins had previously inferred that the

1000-gallon UST was a fuel oil tank, not a gasoline tank. 6

      Although the court had previously barred Hopkins from identifying the

particular petroleum product found on site, the court allowed him to opine that

gasoline was found in soil and water samples just north of the Greenwich Street

UST. Hopkins asserted that a forensic lab analysis of the sort performed on the

samples near the AST and north of the building — where the experts identified

the particular type of petroleum product based on analysis of chromatograms

and other methodologies — was unnecessary when analyzing what he called

"dissolved phase samples" — by which he meant, petroleum products that had

dissolved in groundwater. Instead, Hopkins stated he could base his opinion on

the constituent chemicals found in the samples, such as total lead and four other

chemicals — benzene, toluene, ethyl benzene and xylene — known collectively




6
  The 1959 Sanborn map is not in the record before us. Therefore, we cannot
ascertain if it included the 1080-gallon gasoline tank that Gulf evidently
installed in 1958. And, neither party presented documentary evidence regarding
the installation of the Greenwich Street UST. Particularly because the tank is
located under the public sidewalk, public records conceivably may have
referenced the tank's installation.
                                                                           A-3144-17
                                      12
as BTEX. He said the four chemicals are "markers in a volatile run that's being

done when you're targeting gasoline."

      Chevron's counsel objected that Hopkins was not qualified to identify

gasoline, and that BTEX is found in "all petroleum hydrocarbons." In particular,

Lifrieri testified that fuel oil also contains BTEX.7 Notwithstanding the court's

earlier ruling, the court allowed Hopkins to offer his opinion, stating "I can reject

it later if it turns out I shouldn't have it in evidence."

      Based on the contamination near the 1000-gallon UST, Hopkins opined

"there . . . was a release of petroleum hydrocarbons. There were some signatures

in the analysis that could indicate fuel oil, could indicate[] gasoline, could

indicate kerosene. The total lead indicated that it was likely that there was a

leaded gasoline release." He stated that based on "all the results, the soil, the

field readings, the soil results, the groundwater results, [and] the groundwater

flow direction . . . that the source of the release is from . . . either one or both of

the tanks that were present in the southeast corner of the property." He opined

the release occurred sometime between the 1920s and the 1970s.




7
   He explained that gasoline would present differently from fuel oil in a
chromatogram. However, no one analyzed chromatograms of the samples taken
close to the 1000-gallon UST.
                                                                                 A-3144-17
                                         13
      Hopkins contended that lead concentrations increased "as you go across

the site." The highest lead readings were found in test wells in the northern end

of the property, beyond the north side of the building, but Hopkins asserted that

the groundwater generally flowed in the direction of that well. 8 He also noted

that a test well near the northwest corner of the 1000-gallon UST had elevated

concentrations of volatile, tentatively identified compounds (TICs), total

alkanes, and total lead. Hopkins stated that his conclusion was also supported

by field readings he took near the UST. The results of his soil borings and field

tests led him to rule out "a near surface release," such as from the dispensers.

      Hopkins acknowledged that samples from the test well along the curb on

West Main Street, near where gasoline was once dispensed, did not indicate

elevated levels of lead. That finding, he opined, indicated that the contamination

on the site did not come from off-site sources to the south. 9 Samples from soil

borings near the old 550-gallon tanks were also below regulatory standards or




8
  However, the forensic lab that fingerprinted a sample from that test well
opined that the contaminant was weathered diesel fuel, not gasoline.
9
   Samples from another test well about forty feet to the west and near the
southern property line had lead readings almost as high as those near the 1000 -
gallon UST.
                                                                            A-3144-17
                                       14
non-detectable. Over objection, Hopkins asserted that contaminated soil may

have been removed along with the tanks, which would explain the low readings.

      Hopkins also conceded that he did not "actually know" what was stored in

the Greenwich Street UST; he never inspected the tank and had no evidence of

any holes or leaks. He also conceded that "total lead" is a common metal found

in soil and groundwater; "organic lead" by contrast is the type of lead found in

old leaded gasoline; yet, Hopkins did not test for organic lead. Hopkins asked

a forensic lab to search for multiple components of leaded gasoline when testing

samples from the north side of the building — which turned out to be negative

for gasoline — but did not request such testing of the samples near the alleged

gasoline tank.10 Hopkins also acknowledged that soil borings next to the test



10
   In particular, an expert for plaintiff, Alan Jeffrey, Ph.D., testified in a de bene
esse deposition introduced at trial that someone searching for leaded gasoline
would test for six compounds found in "certain leaded gasolines" — tetramethyl
lead (TML), trimethylethyl lead (TMEL), dimethyldiethyl lead (DMDEL),
methyltriethyl lead (MTEL), tetraethyl lead (TEL), and methylcyclopentadienyl
manganese tricarbonyl (MMK). In particular, TEL was used as an anti-knock
agent in leaded gasoline before 1960. Jeffrey testified that Pace tested for the
six chemicals in the samples from the AST and from a well on the north of the
property and concluded no gasoline was present. He was not asked to perform
similar tests of samples taken closest to the Greenwich Street UST. The trial
court ultimately barred Jeffrey's ultimate identification that the petroleum
product in the samples he analyzed was weathered diesel— because he provided
insufficient explanation. However, the court did not bar Jeffrey's general
comments on the chemicals identified with leaded gasoline.
                                                                               A-3144-17
                                         15
well near the northwest corner of the Greenwich Street UST showed no lead or

BTEX levels above regulatory standards.

      Woodruff's and Chevron's counsel repeatedly objected to Hopkins's

qualifications to opine as to the cause of the contamination. Dorrell's counsel

responded that Dorrell was not obliged to prove that the gasoline "came from

the tank versus the appurtenances" so long as he opined that it came from the

"closed system" including the tank, the pump, the dispenser, or human spills.

Defense counsel insisted that Hopkins was not qualified to render even that

opinion. The court allowed Hopkins to offer his opinion, stating he would

"figure out" later if Hopkins had "the qualification to be able to say it's Gulf."

                                        II.

      Over four separate days, the trial judge orally reviewed the testimony and

provided his findings of fact and conclusions of law on the record. The court

found that a 1955 agreement between Gulf and the old store operator, established

that Gulf owned the two 550-gallon tanks; they did not become part of the real

estate; and the operator was obliged to maintain them. A handwritten addendum

indicated a "leaky tank" was removed, and a 1,000-gallon tank installed in its

place in 1958. The court found that the second 550-gallon tank was also

removed, but the date was uncertain.


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                                       16
      Based on the various sales documents, the court found that the two 550-

gallon tanks stored two different brands of gasoline, not kerosene or fuel oil.

Nonetheless, the court noted that Gulf delivered large quantities of kerosene in

1949. And in 1960, Woodruff delivered hundreds of gallons of kerosene and

hundreds of gallons of a single brand of gasoline — leading the court to conclude

that at that time, two tanks must have been in use to store those products.

      The court was unable to reconcile the discrepancy between the references

to a 1,000-gallon tank and a 1,080-gallon tank in the Gulf documents. The court

acknowledged the possibility there were two separate tanks installed on the

premises around the same time.

      The court reviewed the testimony from Lifrieri and Torkelson, noting they

found fuel oil or kerosene, but neither one found evidence of gasoline in the

samples they analyzed. The court found that "a very significant finding in the

case as it relates to Gulf's exposure." The court found there was insufficient

evidence in the record to connect defendants with fuel oil or kerosene

contamination.

      Regarding fuel oil, the court did not hold Gulf liable, as there was nothing

in the record to show it owned fuel oil tanks on the site. The court also declined




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                                       17
to find Woodruff liable. The court concluded there was no nexus between

Woodruff's filling of the tank and the discharge from the tank leak.

      As for kerosene, the court acknowledged that Gulf and then Woodruff,

delivered kerosene to the site before Dorrell bought it. The court found it

reasonably likely the kerosene was delivered to the AST in the basement.

However, there was simply no evidence "that necessarily links Gulf or Woodruff

to the discharge, to the contamination" that was found "in the ground." 11

      The court then turned to gasoline.     The court analogized the task of

determining the nature and source of the contamination to a differential medical

diagnosis. The court observed, "we just don't know what was stored" in the

Greenwich Street tank; and no one tested its contents. The court acknowledged

evidence tending to show that the tank was not used for gasoline, including that

pipes from the tank led to the house. However, the court concluded that "if that

tank was used for gasoline," then Gulf likely owned it based on the gasoline

sales, and retained ownership to the present day.




11
     The court also found no connection between defendants and coal
contamination. Two experts had mentioned coal as a source of the lead found
in the samples. However, plaintiff had not advanced that theory of liability, and
thus provided no evidence upon which a court could rely.
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                                      18
      Having established ownership, the court turned to the question of

contamination. It examined the chemical analyses of the samples taken from

various soil borings and test wells. The court concluded, as did Hopkins (and

only Hopkins), that gasoline contamination was present, and the contamination

demonstrated that the Greenwich Street tank contained gasoline. Although the

court noted that no one had excluded off-site sources, he relied on the following

findings: the soil boring samples just north of the Greenwich Street UST showed

the presence of ethylbenzene, xylene (total), total TIC Volatile and total alkanes,

although only the ethylbenzene level exceeded regulatory standards; samples

from the test well about twenty feet north of the UST had xylene, total TICs and

total alkanes above standards; and test well samples near the northwest corner

of the UST included levels of TICs, alkanes and lead above standards. 12 The

court found that the presence of lead meant the presence of gasoline, stating

"look, lead gasoline, got lead being shown." The court added, "persuasive on

[the court's] differential diagnosis is the fact of gasoline that was stored on this

site and the fact that somebody owned a tank that that lead would have been

stored in that's other than Ms. Dorrell."



12
  The court cited Silverstein's testimony for the proposition that the total TICs
and lead from this well's samples indicated potential leaking from the UST.
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                                        19
      The court acknowledged that at the well at the north end of the property,

far from the UST, there were also high levels of lead, benzene and TICs. The

court stated, "TIC's are . . . relevant to gasoline." 13 The court recognized that

"lead isn't exclusive to gasoline"; "there's potential for it to be in the ground";

and it could come from paint or coal ashes (coal was used at the site).

      Nonetheless, the court concluded that Gulf, more likely than not, "owns

the existing thousand UST that is next to Greenwich Street . . . [and] it would

have contained gasoline . . . ." The court acknowledged there remained some

uncertainty. But, it concluded, "I've got readings that demonstrate probable

contamination of gasoline on the site," and, "we've got readings that are

attributable to gasoline that raised the concern that it is from, on the differential

diagnosis scale, from, the most likely source, the tank that was storing it." "I'm

satisfied . . . that I can find that there's [a] reasonable probability on the proofs



13
   Only Hopkins associated TIC levels with gasoline. However, by definition,
TICs would appear to exclude a pollutant like gasoline, which can be detected
by chemical analysis. Regulations define "TIC" to mean "a non-targeted
compound detected in a sample . . . which has been tentatively identified using
a mass spectral library search." N.J.A.C. 7:26E-1.8. A "non-targeted
compound" is "a compound detected in a sample using a specific analytical
method that is not a targeted compound . . . ."

Ibid. By contrast, a

"targeted
compound" is "a hazardous substance, hazardous waste, or pollutant for which
a specific analytical method is designed and/or used to detect that potential
contaminant both qualitatively and quantitatively."

Ibid. A-3144-17 20 that

Gulf is a responsible party for the gasoline contamination" and can order

them to "conduct further studies to further develop the extent of th[e]

contamination, but also to further develop whether, in fact, that is or [is] not

their tank." The court held that Gulf is "deemed the responsible party . . . to the

extent that now they have to conduct further remedial investigation to further

develop the record as to what's in that tank" and "until such time as they're able

to demonstrate that [the] UST is not a gasoline storage facility, if that occurs,

then their responsibility would end."

      As the trial judge retired shortly after rendering his decision, a different

judge considered and denied Chevron's motion for judgment notwithstanding

the verdict or, alternatively, a new trial. Chevron argued that the trial court erred

in relying on Hopkins's opinion, because it had not qualified him to identify the

contaminant at the scene, and reserved on whether Hopkins was qualified to

opine about causation, but never rendered a final decision. Chevron also argued

that Hopkins offered a net opinion about the contents of the Greenwich Street

UST, because he never examined it.

      The motion court disagreed. The motion court held that Hopkins properly

relied on the laboratories' results, and, "as an LSRP, [was] qualified to testify as

to both his charting the laboratory results and the NJDEP standards." Although


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                                        21
the motion court reiterated that Hopkins "is not qualified to analyze samples," it

found that Hopkins, "[a]s an LSRP . . . with . . . experience investigating sites

with petroleum hydrocarbons" was qualified to testify that BTEX was a

"signature of gasoline." The motion court also rejected Chevron's argument that

Hopkins offered a net opinion about gasoline contamination. The motion court

reasoned that Hopkins "relied on the analytic results that he received" from the

laboratories, "[h]e did horizontal and cross-sectional mapping," and "he created

visual summaries of his investigation." The motion court held that Hopkins's

opinion was "based on his investigation, including review of the history of the

site, the contracts between Gulf and [the store], his field screenings, and the

laboratory results."

      The motion court also upheld the trial court's finding of gasoline

contamination, noting it was "based on the historic use of the area," the

"contracts for the USTs" between Gulf and the store, "the gasoline delivery

records, and the groundwater analytical results summarized on" a trial court

exhibit. The motion court noted that the exhibit listed levels of benzene, xylene,

total TIC Volatile, and alkanes. The motion court asserted that "[a]ll of the

experts agreed that BTEX . . . are considered to be a signature of gasoline."




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                                       22
      The motion court also found the court reasonably found Chevron, as the

successor to Gulf, owned the tank, and it was thus appropriate to order it to

participate in further investigation of the site with plaintiff.

      Dorrell's appeal, and Chevron's cross-appeal followed. We consider them

in turn.

                                         III.

      Dorrell contends the court imposed on her a higher burden of proof than

the Spill Act and case law requires. Rather than ascertain if there was a nexus

between defendants and the contamination, she asserts the court required her to

prove defendants were at fault for the damage. Dorrell's appeal turns entirely

on interpreting the Court's language in New Jersey Department of

Environmental Protection v. Dimant, 

212 N.J. 153

(2012).

      In Dimant, the New Jersey Department of Environmental Protection

(DEP) filed an enforcement action against a dry cleaner and others under the

Spill Act. By the time of trial, the dry cleaner was the only direct defendant that

remained.    In a bench trial, the court found "DEP failed to prove by a

preponderance of the evidence that any discharge by [the dry cleaner] caused

the groundwater contamination in issue."

Id. at 159.

This failure thus precluded




                                                                             A-3144-17
                                        23
DEP from compelling contribution from defendant for investigation and cleanup

costs.

Ibid. The Supreme Court

affirmed the trial court's ruling, but slightly modified

and clarified the standard a plaintiff must satisfy in a Spill Act claim for

contribution. The Court held that in order to hold a defendant responsible, "[a]

reasonable nexus or connection must be demonstrated by a preponderance of the

evidence." 

Dimant, 212 N.J. at 182

. "[A] plaintiff need not 'trace the cause of

the response costs' to each defendant in a multi-defendant case involving a

contaminated site . . ."

Ibid. (quoting N.J. Tpk.

Auth. v. PPG Indus., Inc., 

197 F.3d 96

, 105 n.9 (3d Cir. 1999)). However, a plaintiff must do more than

"simply prove that a defendant produced a hazardous substance and that the

substance was found at the contaminated site and 'ask the trier of fact to supply

the link.'"

Ibid. (quoting N.J. Tpk.


Auth., 197 F.3d at 105

n.9). The Court

reaffirmed this view in Magic Petroleum Corp. v. Exxon Mobil Corp., 

218 N.J. 390

, 408 (2014), where it noted Dimant found "that to recover costs from [a]

responsible party, [a plaintiff] must show [a] reasonable nexus between

discharge, discharger and contamination at the damaged site."

      N.J.S.A. 58:10-23.11g(c)(1) provides that

               any person who has discharged a hazardous substance,
               or is in any way responsible for any hazardous

                                                                           A-3144-17
                                       24
            substance, shall be strictly liable, jointly and severally,
            without regard to fault, for all cleanup and removal
            costs no matter by whom incurred. Such person shall
            also be strictly liable, jointly and severally, without
            regard to fault, for all cleanup and removal costs
            incurred by the department or a local unit . . . .

The operative language in plaintiff's appeal thus concerns "any person who . . .

is in any way responsible for any hazardous substance . . . ." N.J.S.A. 58:10-

23.11g(c)(1).      We have previously recognized the phrase "in any way

responsible" is to be "broadly construed to encompass either ownership or

control over the property at the time of the damaging discharge, or control over

the hazardous substance that caused the contamination." N.J. Sch. Dev. Auth.

v. Marcantuone, 

428 N.J. Super. 546

, 559 (App. Div. 2012) (citing 

Dimant, 212 N.J. at 177-78

).

      The trial court did not impose a higher burden of proof on plaintiff than

Dimant demands. Rather, the court held there was an insufficient connection or

nexus between defendants, and a discharge and contamination at the site. The

court cited Dimant as not requiring negligence, or fault, but instead that a

plaintiff must "demonstrate that there's a connection, a link, a nexus, between

the discharge, the ultimate injury that it's caused." The court stated that the

nexus could arise from "ownership"; actions "causing the leak, whether that's



                                                                          A-3144-17
                                       25
negligence or not"; or some other "conduct, . . . [or] act that provides . . . the

link" required.

      Applying the proper analytical framework, the court committed no error

in finding Woodruff not liable for the fuel oil leak in plaintiff's basement.

Dorrell effectively asks this court to find that mere delivery of oil, that is at some

later point in time discharged from a tank, is sufficient to establish liability. We

decline to do so where Woodruff did not own the tank, and where the record

fails to establish a contractual responsibility to maintain or inspect the tank.

      We also note that plaintiff failed to establish the state of the tank in the

basement that leaked the fuel oil. In Dimant, the Court cited favorably to

Atlantic City Mun. Utils. Auth. v. Hunt, 

210 N.J. Super. 76

, 96 (App. Div. 1986),

for the proposition that "placement of waste into non-leaking containers does

not constitute 'a 

discharge.'” 212 N.J. at 161-62

. Although the parties agree the

AST in the basement leaked fuel oil, the trial judge questioned why no

investigation was made of the tank to determine the source of the leak. Instead,

the tank was replaced without investigation. In order to hold Woodruff liable

for delivering fuel, plaintiff was thus obliged to establish when and why the tank

leaked oil. If the tank had a small leak leading to oil leaking over time, Woodruff

may have been on notice there was an issue if it was delivering more oil than


                                                                                A-3144-17
                                         26
the tank's capacity in order to fill it up. Or, the tank may have had a burst seam

leading to the leak occurring over the course of a few hours. Failure to establish

why the leak occurred doomed plaintiff's claim.

                                       IV.

      We turn next to Chevron's cross-appeal of the trial court's order that it

perform a remedial investigation on the site. Chevron challenges the court's

finding that gasoline from the Greenwich Street 1000-gallon UST contaminated

the site. Chevron contends the court erred in admitting Hopkins's o pinion.

Chevron argues Hopkins was not qualified to determine that gasoline

contaminated the site, or that Gulf caused it; and his opinion was, in any event,

a net opinion. Chevron also asserts that it does not own the 1000-gallon tank.

Finally, it argues that if it is required to undertake a remedial investigation,

Woodruff and Dorrell should be required to share in investigation costs as well.

      As a threshold matter, we briefly address Chevron's argument that it does

not own the Greenwich Street 1000-gallon UST. Even assuming Gulf installed

and loaned the tank to the prior store owner, Chevron relies on Sgro v. Getty

Petroleum Corp., 

854 F. Supp. 1164

(D.N.J. 1994) for the proposition that it was

an abandoned fixture that became part of the realty. Chevron contends that




                                                                            A-3144-17
                                       27
absent proof the alleged gasoline discharge occurred while it owned the tank,

there would be an insufficient nexus between it and the discharge under Dimant.

      We are unpersuaded. Chevron misplaces reliance on a rule of law that

vindicates the rights of a subsequent property owner or tenant to a presumably

valuable fixture that a prior owner abandoned, where the property owner has

notice of the fixture and assumes it is part of the property. As one treatise

explains, "[T]he only policy justification for forfeiture [is] the protection of

subsequent parties who have taken rightful possession of the property and

should be free from interruption by a tenant who returns to remove trade fixtures

at a later date." 8 Michael Allan Wolf, Powell on Real Property § 57.06[b]

(2021).

      By contrast, this case involves saddling a subsequent property owner with

a fixture that is a burden to the land, about which the subsequent owner had no

notice. A tenant who abandons chattels on leased property is liable under the

common law for the costs of removal, and "any other damages caused by the

abandonment." Restatement (Second) of Property: Landlord & Tenant, § 12.3,

cmt. l (Am. Law. Inst. 1977).

      However, we need not decide the scope of Dorrell's rights under the

common law. A party who abandons a container used for storing potential


                                                                           A-3144-17
                                      28
pollutants — whether it is an old drum of oil abandoned on the side of the road

or an underground tank left in place — remains a person "in any way

responsible" for discharges from the property it abandoned. N.J.S.A. 58:10-

23.11g(c)(1).

      We are also unpersuaded that equity demands that Woodruff and Dorrell

share in the remedial investigation, if one occurs. The trial court found Chevron

liable for a remedial investigation because it found it more likely than not that

gasoline was discharged into the ground from the tank that Gulf and Chevron

owned. We recognize that a court may, in exercising its equitable authority,

require that multiple potentially responsible parties bear the cost of an

investigation where the source of contamination is unclear. Matejek v. Watson,

449 N.J. Super. 179

, 181 (App. Div. 2017). However, there was no evidence

that Woodruff was responsible for a gasoline discharge, even though it delivered

gasoline to the site from 1959 to the early 1960s. Also, Dorrell's alleged failure

to discover the tank when she bought the property in 1984 is not a compelling

basis to require her to defray Chevron's cost of investigating a discharge from

Gulf and Chevron's tank.

      We turn to the more significant issue on the cross-appeal: the admissibility

of Hopkins's expert opinion. Because Dorrell offered Hopkins's expert opinion,


                                                                            A-3144-17
                                       29
she was obliged to establish its admissibility. See State v. Hyman, 451 N.J.

Super. 429, 441 (App. Div. 2017) (stating "the proponent of opinion evidence

bears the burden to establish its admissibility"). N.J.R.E. 702 and 703 frame the

analysis for admitting expert testimony. Townsend v. Pierre, 

221 N.J. 36

, 53

(2015).

      N.J.R.E. 702 states that "[i]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine

a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training or education may testify thereto in the form of an opinion or otherwise."

In other words, to satisfy N.J.R.E. 702, expert testimony must satisfy three

requirements: "(1) the intended testimony must concern a subject matter that is

beyond the ken of the average juror; (2) the field testified to must be at a state

of the art such that an expert's testimony could be sufficiently reliable; and (3)

the witness must have sufficient expertise to offer the intended testimony." State

v. Kelly, 

97 N.J. 178

, 208 (1984); see also 

Townsend, 221 N.J. at 53

.

      Regarding the third factor, "an expert 'must be "suitably qualified and

possessed of sufficient specialized knowledge to be able to express [an expert

opinion] and to explain the basis of that opinion."'" Agha v. Feiner, 

198 N.J. 50

, 62 (2009) (alteration in original) (quoting State v. Moore, 

122 N.J. 420

, 458-


                                                                            A-3144-17
                                       30
59 (1991) (further citation omitted)). Once qualified, an expert witness can only

offer opinion testimony within the bounds allowed by the trial judge . See State

v. Locascio, 

425 N.J. Super. 474

, 490-91 (App. Div. 2012) (finding the trial

court erred in allowing a witness qualified to testify as a pathologist to also

testify as an expert in accident reconstruction).

      N.J.R.E. 703 addresses the foundation of the expert's opinion. It must "be

grounded in facts or data derived from (1) the expert's personal observations, or

(2) evidence admitted at the trial, or (3) data relied upon by the expert which is

not necessarily admissible in evidence but which is the type of data normally

relied upon by experts." 

Townsend, 221 N.J. at 53

(internal quotation marks

and further citations omitted). As a corollary of N.J.R.E. 703, the "net opinion

rule" "mandates that experts 'be able to identify the factual bases for their

conclusions, explain their methodology, and demonstrate that both the factual

bases and the methodology are reliable.'"

Id. at 55

(quoting Landrigan v.

Celotex Corp., 

127 N.J. 404

, 417 (1992)).

      To meet the reliability requirement in the case of scientific expert opinion,

the proponent must "demonstrate that the expert's opinion or theory was

generally accepted within the scientific community." Kemp ex rel. Wright v.




                                                                             A-3144-17
                                       31
State, 

174 N.J. 412

, 424 (2002).14 A court must "distinguish scientifically sound

reasoning from that of the self-validating expert, who uses scientific

terminology to present unsubstantiated personal beliefs." 

Landrigan, 127 N.J. at 414

.

      We generally review decisions to admit expert opinion testimony, like

other evidentiary decisions, under an abuse of discretion standard. 

Townsend, 221 N.J. at 53

. That discretion extends to the decision whether the expert

possesses the necessary qualifications. Ryan v. Renny, 

203 N.J. 37

, 50 (2010).

"[A]n abuse of discretion 'arises when a decision is "made without a rational

explanation, inexplicability departed from established policies, or rested on an


14
     Our court applied a more relaxed standard focused on the underlying
methodology in cases involving novel theories of causation in toxic tort cases.

Kemp, 174 N.J. at 424-25

(stating that "a theory of causation that had not yet
reached general acceptance in the scientific community 'may be found to be
sufficiently reliable if it is based on a sound, adequately-founded scientific
methodology involving data and information of the type reasonably relied on by
experts in the scientific field'") (quoting Rubanick v. Witco Chem. Corp., 

125 N.J. 421

, 449 (1991)). After trial in this case, the Court in In re Accutane
Litigation, 

234 N.J. 340

(2018), adopted, for scientific expert testimony in civil
cases, aspects of the test in Daubert v. Merrell Dow Pharmaceuticals, Inc., 

509 U.S. 579

(1993). The Court's approach "requires the proponent to demonstrate
that the expert applies his or her scientifically recognized methodology in the
way that others in the field practice the methodology." 

Accutane, 234 N.J. at 399-400

. The trial court should exclude expert testimony as unreliable " [w]hen
a proponent does not demonstrate the soundness of a methodology, both in terms
of its approach to reasoning and to its use of data, from the perspective of others
within the relevant scientific community."

Id. at 400.

                                                                             A-3144-17
                                       32
impermissible basis."'" State v. R.Y., 

242 N.J. 48

, 65 (2020) (quoting Flagg v.

Essex Cty. Prosecutor, 

171 N.J. 561

, 571 (2002) (further citation omitted)). In

particular, an appellate court owes no deference to an evidentiary ruling if the

trial court failed to apply the correct standard for admissibility. State v. Darby,

174 N.J. 509

, 518 (2002) (reviewing de novo admissibility of other crimes and

wrongs evidence where trial court failed to apply standard for admissibility);

Konop v. Rosen, 

425 N.J. Super. 391

, 401 (App. Div. 2012) (stating an appellate

court reviews de novo a trial court evidentiary ruling where the court failed to

apply the correct test). We also will find an abuse of discretion in the case of a

clear error of judgment, or a manifest injustice. Rodriguez v. Wal-Mart Stores,

Inc., 

237 N.J. 36

, 57 (2019).

      However, not all evidentiary rulings are subject to the abuse-of-discretion

standard of review. "Whether expert testimony is sufficiently reliable to be

admissible under N.J.R.E. 702 is a legal question" that an appellate court

reviews de novo. State v. J.L.G., 

234 N.J. 265

, 301 (2018); see also State v.

Harvey, 

151 N.J. 117

, 167-68 (1997) (stating that an appellate court "reviewing

a decision on the admission of scientific evidence . . . should scrutinize the

record and independently review the relevant authorities, including judicial

opinions and scientific literature").


                                                                             A-3144-17
                                        33
      We apply these principles first to the issue of Hopkins's qualification to

opine that the contaminant found was gasoline. The motion court recognized

that Hopkins was not qualified to "analyze" samples. But, the trial court's initial

ruling went further. The trial court held that Hopkins was not qualified to

"identify" the hydrocarbons, and instead relied on other experts to do so. The

court's decision was justified.

      However, Dorrell's counsel later elicited Hopkins's opinion, identifying

the contaminant as gasoline. Chevron objected that the opinion was outside the

scope of his qualifications the court previously determined. The court allowed

the testimony subject to what amounted to its reconsideration of its previous

decision. But, the court never returned to Hopkins's qualifications.

      As we noted, essential to the admissibility of an expert's opinion under

N.J.R.E. 702 is proof that the expert has the qualifications to offer it. We are

constrained to conclude that the trial court abused its discretion by admitting

Hopkins's opinion that the contaminant in the soil and water at the site was

gasoline, absent a finding he was qualified to give it.

      We recognize that Hopkins grounded his opinion in part on what we view

as circumstantial evidence. He found samples with elevated readings of various

contaminants near the 1000-gallon Greenwich Street tank. He considered the


                                                                             A-3144-17
                                       34
historic use of the site for gasoline storage and sales. However, an essential

element of his opinion that the contaminant was gasoline rested on Hopkins's

analysis of various chemicals, including lead and BTEX, which he opined were

"signatures" or "markers" of gasoline. Notably, Hopkins did not testify during

his voir dire that he had the training or experience to distinguish between various

petroleum products and to identify gasoline among them, based on the kind of

data he utilized. During trial, he admitted that various other chemicals are

closely associated with leaded gasoline; he obtained tests of those for samples

taken from other locations on the property; but he did not obtain those tests for

the samples he asserted contained gasoline. He also admitted that specific forms

of lead were associated with gasoline, but he relied on total lead readings as the

foundation of his opinion.

      Nor are we convinced that, as an LSRP, Hopkins necessarily was qualified

to identify gasoline. The motion court held that "[a]s an LSRP and with his

experience investigating sites with petroleum hydrocarbons," Hopkins was

qualified to testify that BTEX was a "signature of gasoline" and his "charting

the laboratory results." 15


15
   The motion court's conclusion that "[a]ll of the experts agreed that BTEX . . .
are considered to be a signature of gasoline" is unsupported by the record, if the


                                                                             A-3144-17
                                       35
      We are unconvinced. A discharger or a person in any way responsible for

a discharge is required to hire an LSRP to perform remediation.        N.J.S.A.

58:10B-1.3. Remediation may encompass a remedial investigation that includes

identifying the nature of contamination.        N.J.S.A. 58:10C-2 (defining

"remediation" and "remedial investigation"). However, the statute recognizes

that an LSRP may be required to rely on other professionals to perform tasks he

or she is not qualified to perform. "A licensed site remediation professional

shall not provide professional services outside the areas of professional

competency, unless the licensed site remediation professional has relied upon

the technical assistance of another professional whom the licensed site

remediation professional has reasonably determined to be qualified by

education, training, and experience."        N.J.S.A. 58:10C-16(c).       Thus,

qualification as an LSRP does not necessarily imply qualification to identify

specific petroleum contaminants based on the data Hopkins utilized.

      The trial court also never decided that Hopkins was qualified to offer an

opinion about causation. At the beginning of trial, the court stated it was "not



court meant by "signature" that BTEX was uniquely found in gasoline. Lifrieri
testified that BTEX is found in fuel oil, as well. Furthermore, as noted , the
laboratories never reported the presence of gasoline. They reported the presence
of various other chemicals. The issue is whether Hopkins was qualified to infer
that gasoline was present based on that chemical array.
                                                                          A-3144-17
                                      36
prepared . . . without more foundation, without more specifics, to be able to say

[Hopkins was] qualified . . . to give what I'll call proximate cause opinions."

The court did not foreclose Dorrell from making such a showing. But, the court

did not expressly revisit the issue.

      Even assuming Hopkins was a qualified witness, the record does not

disclose that the facts and methods he used to identify gasoline, and attribute it

to Gulf, were reliable. As noted, the "net opinion rule" required Hopkins to

"demonstrate that both the factual bases and the methodology [of his opinion]

were reliable." 

Townsend, 221 N.J. at 53

(quoting 

Landrigan, 127 N.J. at 417

).

The record contains no such demonstration. Hopkins certainly described the

basis for his opinion, including the presence of certain chemicals, the proximity

of the 1000-gallon UST, and the historic use of the site. However, Hopkins

referred to no scientific sources or evidence to demonstrate that his methodology

was reliable; or that it was generally accepted within the field of environmental

assessment and investigation.

      Rather, the evidence at trial disclosed other reliable methods of

identifying gasoline and determining its source, which Hopkins chose not to use.

Hopkins conceded that to determine whether leaded gasoline was present, one

would test for several chemicals; yet, he did not order those tests for the samples


                                                                             A-3144-17
                                       37
taken near the 1000-gallon UST.        The other experts identified particular

petroleum products through the use of chromatograms and other sophisticated

technologies. Those methods were applied to samples from the basement and

the test well north of the building; but, not applied to samples near the 1000-

gallon UST, or where gasoline was sold. 16 Hopkins also never inspected the

1000-gallon UST, to determine if it was corroded or cracked; nor did he try to

sample and test the tank's contents.

      We conclude it is appropriate to remand for an N.J.R.E. 104 hearing to

determine the admissibility of Hopkins's opinions, both based on his

qualifications, and the reliability of his methodology. We recognize that Dorrell

bore the burden to establish the admissibility of Hopkins's opinion, but the issue

was joined and the court never returned to the issue so as to put Dorrell to the

test. Furthermore, during trial, Chevron did not object to Hopkins's opinion on

the ground it was a net opinion. 17 The argument was raised in a post-trial


16
   Dorrell excuses Hopkins's decision not to utilize those tests on the samples
taken near the 1000-gallon UST, because the samples were dissolved in the
groundwater, as opposed to "product" that floated atop the groundwater.
However, Hopkins presented no evidence of the reliability of that methodology.
17
    We recognize that Chevron's counsel made a passing reference to "net
opinion" in oral argument on the motion for involuntary dismissal after Dorrell
rested. However, Chevron did not expressly challenge the reliability of
Hopkins's methodology.
                                                                            A-3144-17
                                       38
motion.    Neither party requested an N.J.R.E. 104 hearing to ascertain the

reliability of Hopkins's methodology. "[T]he sounder practice is to afford the

proponent of the expert's opinion an opportunity to prove its admissib ility at a

Rule 104 hearing." 

Kemp, 174 N.J. at 432-33

.

      At the hearing, Hopkins shall have the opportunity to demonstrate his

qualifications and the reliability of the methodology he used. Chevron shall be

entitled to offer its own expert in response to these questions. The trial court

shall assure the hearing is limited to the issues of Hopkins's qualifications at the

time he testified at trial and the reliability of the methodology, as it existed at

the time of trial, supporting the opinions concerning the identification of

gasoline and its source on the property that he offered at trial, and does not

transform into a re-trial. Whether pre-hearing exchanges are warranted is left

to the trial court's discretion.

      If the court on remand determines that Hopkins was not qualified to

identify the contaminant as gasoline or opine about causation, or that his

methodology was not reliable, then the judgment of the trial court with respect

to Chevron shall be vacated. However, if the court determines that Hopkins was

qualified to identify gasoline as a contaminant, and the factual bases and

methodology he used were reliable, then the order shall be enforced.


                                                                              A-3144-17
                                        39
      Affirmed on the appeal. Remanded on the cross-appeal. We do not retain

jurisdiction.




                                                                      A-3144-17
                                    40

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