TRENTON
– Attorney General Peter C. Harvey
today filed suit against W.R. Grace &
Co. and two former company executives
for falsely certifying to the New Jersey
Department of Environmental Protection
(DEP) in 1995 that any hazardous asbestos
contamination at the company’s Hamilton
Township plant had been cleaned up in
accordance with state requirements. In
fact, more than 15,000 tons of contaminated
soil remained at the site when Grace closed
the plant. Some soil samples contained
concentrations of hazardous asbestos as
high as 40 percent of the sample.
Attorney
General Harvey filed the suit on behalf
of DEP in Superior Court in Mercer County
seeking civil monetary penalties against
the company and the two individual defendants
under the New Jersey Spill Compensation
and Control Act (“Spill Act”)
and the New Jersey Industrial Site Recovery
Act (“ISRA”).
The
Attorney General’s Office is reviewing
whether additional legal actions, including
criminal charges, can be brought against
W.R. Grace and other defendants in connection
with the Hamilton plant. The Office has
requested that the U.S.
Environmental Protection Agency (EPA)
and other federal authorities share information
from their investigation of W.R. Grace.
“We
are seeking major civil penalties against
these defendants who deliberately concealed
the extensive asbestos contamination that
W.R. Grace had caused at its Hamilton
Township plant,” said Attorney General
Harvey. “The defendants acted in
complete disregard for the health and
safety of the neighboring community and
the future occupants of this site. Going
forward, we will continue to review all
new facts and all legal options available
to the State in this matter.”
“We
have zero tolerance for companies like
Grace that, in this case, clearly failed
to note asbestos contamination when reporting
about environmental conditions at its
Hamilton site,” said DEP Commissioner
Bradley M. Campbell. “It is essential
that the Attorney General take this action
today to safeguard communities like Hamilton
from companies that ignore their environmental
responsibilities.”
The
corporate defendants named in the suit
are W.R. Grace & Co., its successor
W.R. Grace & Co.-Conn., and Grace-Conn
Successor, a fictitious successor in interest
(collectively “Grace”). The
individual defendants who allegedly made
the false certifications for Grace are
Jay H. Burrill, who was Environmental
Coordinator for Grace at the time, and
Robert J. Bettacchi, who was Vice President.
W.R.
Grace’s Concealment of Asbestos
Contamination
Grace
is under federal criminal indictment on
charges related to the operation of its
vermiculite ore mine in Libby, Montana,
where workers and residents in the surrounding
community allegedly contracted asbestos-related
diseases from the company’s milling
of ore containing hazardous concentrations
of tremolite asbestos.
Grace
shipped several hundred thousand tons
of vermiculite concentrate milled from
ore at the Libby mine to the Hamilton
plant from 1957 to 1991. Grace used the
vermiculite concentrate at the Hamilton
plant to manufacture products such as
fire-retardant insulation, material for
lightweight concrete, and fertilizer.
The
complaint alleges that defendants knew
that dust and other waste containing hazardous
concentrations of asbestos fibers were
generated by Grace’s manufacturing
operations, and that asbestos fibers had
contaminated the Hamilton plant and the
soil at the site. The complaint alleges
that although the defendants knew these
facts, they falsely certified on June
2, 1995 that any hazardous substances
discharged at the Hamilton plant had been
cleaned up in accordance with DEP regulations.
The
false representations were contained in
two documents filed with DEP to meet requirements
of ISRA triggered when Grace closed the
plant: a Preliminary Assessment/Site Investigation
and a Negative Declaration, each certified
by Burrill and Bettacchi. Burrill and
Bettacchi certified that the information
submitted was true, accurate and complete.
On the basis of those submissions, DEP
issued a No Further Action letter for
the site.
After
the severe health problems came to light
involving workers and local residents
in Libby, the U.S. Environmental Protection
Agency began testing at Grace plants around
the country that used the Libby vermiculite
ore. Soil samples taken by EPA in 2001
at the Hamilton facility showed asbestos
concentrations as high as 40 percent.
From 2003 to 2004, Amtrak and American
Premium Underwriter Inc., which allegedly
have ownership and successor liability
for the site, excavated and disposed of
9,000 tons of asbestos-contaminated soil
from the site and nearby areas under EPA
supervision. It is anticipated that they
will excavate an additional 6,000 tons
of asbestos-contaminated soil this summer.
DEP
has rescinded its No Action Letter and
is working with EPA to address contamination
concerns both on and off-site. The Department
of Health and Senior Services has issued
reports on two health consultations of
the site and is currently attempting to
locate and reach out to former employees
to evaluate health implications of past
exposure to former workers, their families,
and the surrounding community.
The
complaint seeks assessment of a civil
penalty against each defendant under ISRA
of $50,000 – $25,000 for each document
– for submission of false information,
and an additional $50,000 – for
each day the defendant failed to correct
the false information. In addition, it
seeks assessment of a civil penalty against
each defendant under the Spill Act of
$100,000 – $50,000 for each document
– for knowingly giving false testimony,
documents or information to DEP, and an
additional $100,000 for each day the defendant
failed to correct the false information.
The complaint also seeks attorney’s
fees and costs.
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