Wednesday, August 15, 2012

N.J. Court Cries Foul on Environmental Enforcement

by: Duane Craig

Polluters in New Jersey may be off the hook for cleanups if a recent court decision holds up, according to this article. This would affect sites described as having “small amounts” of contaminants.

The court’s decision was related to the appeal of a case in which a company claimed no contaminant discharges when selling the property. Later, pollution was found, and the New Jersey Department of Environmental Protection linked the contaminants to the company and then required a cleanup. The company refused and went to court over the matter.
New Jersey has 13,141 active sites with confirmed contamination as of April 12, 2012, according to NJDEP records. The state has 8,722 square miles, giving it a contamination density of 1.5 contaminated sites per square mile. There are 2,355 homeowners with known contamination and 10,785 businesses.

Opponents of the ruling claim it is the polluters who will end up deciding what is considered to be “small amounts,” and that will open the door for many to simply walk away from contaminated sites and not have to reveal the existence of the contamination to buyers.
According to a court document on the case, there was always a way for people with small discharges of pollutants to be relieved of the obligation to clean up. The court cited excerpts from the Industrial Site Recovery Act of 1993, as a result of which owners and operators of industrial establishments could walk away from pollution with simply a written notice as long as the pollution didn’t exceed 500 pounds or 55 gallons. If it was hydraulic or lubricating oil, it could not exceed 220 gallons.

The court in the end found that the NJDEP had stepped beyond its legislatively delegated powers in this instance. The court, however, went out of its way to avoid stepping on toes in the legislature and was supportive of the NJDEP role, writing, “we emphasize that we do not pass upon the wisdom of the Legislature's policy choices. Nor do we preclude the Department from pursuing appropriate enforcement action against appellant and other DQE applicants under the Spill Act or other legislatively-authorized regulations, where the facts support such enforcement action. We also do not preclude intervenor or other private parties from invoking their contractual or other legal rights to compel DQE applicants to investigate and to remediate industrial sites. Our conclusions in this appeal are instead confined to the lack of delegated statutory authority within the ambit of the DQE process -- no more and no less.”
This case no doubt points to the challenges in crafting environmental legislation and ultimately in applying it, even in places where there is so so much environmental degradation.

No comments: