New Jersey Environmental Enforcement Actions Seek Natural Resource Damages
September 6, 2018
For the First Time in a Decade, the State has Filed Lawsuits Seeking to Recover Natural Resource Damages
The Murphy Administration is taking an aggressive approach to environmental enforcement actions involving contamination. For the first time in a decade, the state has filed lawsuits seeking to recover natural resource damages.
Natural Resource Damage Lawsuits
Natural Resource Damages are intended to compensate the public for the injury to, destruction of, or loss of natural resources. Natural resources are broadly defined to include “land, fish, wildlife, biota, air, water, ground water, drinking water supplies and other such resources.” New Jersey is authorized to recover the “cost of restoration and replacement of any natural resource…” under the New Jersey Spill Compensation Act (Spill Act). Several other state and federal statutes also provide the New Jersey Department of Environmental Protection’s (NJDEP)with additional authority to require the investigation and restoration of injured natural resources. These federal statutes include the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, and the Oil Pollution Act.
The process for pursuing natural resource injuries is incorporated in the NJDEP’s existing remedial investigation activities required for remediation, which utilize the Technical Requirements for Site Remediation. The characterization is completed during the remedial investigation, which is overseen by the Site Remediation Program. Natural resource injuries generally fall into two categories: ecological injury and groundwater injury.
Under the NJDEP’s existing NRD policy directive, which dates back to 2007, the following classes of sites are deemed inappropriate for developing an NRD claim:
- Sites or claims for which the only responsible parties are residential homeowners residing at the site at which the claim arises.
- Sites or claims for which the only responsible parties are small businesses with a limited ability to pay.
- Sites that meet the qualifying criteria for DEP’s “Cleanup Star” Program.
New Jersey Stepping Up NRD Enforcement
Until this month, the State had not initiated a new NRD case since 2008. The latest cases involve the following three contaminated sites:
- The Pohatcong Valley Superfund Site in Warren County: Trichloroethylene (TCE) from the plant allegedly seeped into an aquifer, which created a stretch of groundwater contamination up to 9 miles long;
- The former Hess petroleum refinery in the Port Reading section of Woodbridge: Numerous spills have allegedly resulted in groundwater and surface water contamination; and
- The former site of a manufactured gas plant, now owned by Deull Fuel Company, near the Beach Thorofare waterway in Atlantic City: The sediment along the intracoastal waterway is allegedly contaminated.
“This is the largest single-day environmental enforcement action in New Jersey in at least a decade,” Attorney General Gurbir Grewal said in a press statement. “Today is just the beginning. We are going to hold polluters accountable – no matter how big, no matter how powerful, no matter how long they’ve been getting away with it. And we’re sending a message to every company across the state: if you pollute our natural resources, we are going to make you pay.”
He added: “The truth is that environmental pollution affects us all, North and South, rural and urban, rich and poor. That’s why it matters to everyone that we are going after the polluters who damaged New Jersey’s precious natural resources and failed to properly clean up their mess. In the coming months my Office will aggressively bring even more Natural Resource Damage cases throughout the State, taking to task polluters who have harmed our environment.”
Separately, New Jersey lawmakers are working to create a legal standard that would allow the State to more readily quantify the value of New Jersey’s natural resources in NRD suits. Sen. Bob Smith, the chairman of the Senate Environment and Energy Committee, is currently organizing a stakeholder process to devise a workable mechanism that would establish such standards.
Key Takeaway for New Jersey Businesses
The NRD lawsuits, and the accompanying statements by Attorney General Grewal, signal that the Murphy Administration plans to aggressively pursue natural resource damages. Given that such damages can often outweigh the costs of remediation, businesses should closely monitor the state’s new NRD initiative and contact an experienced environmental law attorney with any concerns.
If you have any questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, at 201-806-3364.