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.
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