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TRENTON --
Attorney General Anne Milgram announced today
that a Superior Court judge has upheld the
state’s claims seeking damages from
ExxonMobil for harm to the environment and
loss of natural resources caused by two of
its refinery operations before New Jersey’s
Spill Act took effect in 1977.
According to Milgram, Superior
Court Judge Ross R. Anzaldi has rejected a
motion by ExxonMobil to dismiss the state’s
claims on grounds that the state should only
be able to seek restoration of, and compensation
for, natural resources damaged after enactment
of the Spill Act in 1977.
In ruling in favor of the
state, Judge Anzaldi held that the New Jersey
legislature’s intention has been “to
expand, not contract” the ability of
the Department of Environmental Protection
(DEP) to recover compensatory damages from
polluters, and that ExxonMobil’s interpretation
of the law would leave the public “less
than whole for its loss.”
“This is a significant
ruling, because it affirms the state’s
position that polluters who have damaged natural
resources prior to passage of the Spill Act
cannot simply walk away -- they have an obligation
to restore those natural resources, and to
compensate the people of New Jersey for losses
while the resources were polluted,”
said Milgram.
”The court's decision
to uphold the DEP's claims is an important
victory for the people of New Jersey, not
only because it strengthens our ability to
protect our precious resources on their behalf,
but also because it holds the polluter accountable
for environmental damages,” Acting DEP
Commissioner Mark Mauriello said.
In September 2008, Judge Anzaldi
ruled that ExxonMobil is liable for causing
a public nuisance by polluting the waterways,
wetlands and marshes on and near its former
refinery sites in Bayonne and Linden.
In ruling on part of a natural
resource damages lawsuit filed on behalf of
the DEP, the judge found that ExxonMobil contaminated
both sites through active disposal and accidental
spilling of hazardous substances causing great
damage.
Specifically
Judge Anzaldi, who presides in Union County,
found that soil and groundwater under the
Bayonne site was heavily contaminated with
approximately seven million gallons of oil
-- ranging in thickness from 7-to-17-feet
-- before cleanup operations began there in
1991. Oil refinery operations at Bayonne lasted
from 1879 through 1972.
The judge also found that
a formerly-ExxonMobil-owned refinery in Linden
known as Bayway discharged hazardous materials
into Morses Creek for years under ExxonMobil’s
stewardship. The discharges resulted in extensive
hydrocarbon contamination of both Morses Creek
and the Arthur Kill, into which the creek
flows. The court also found that former wetlands
areas on and near the Linden site were contaminated
with petroleum distillate residues. (Bayway
refinery is currently owned and operated by
Conoco Phillips.)
Although ExxonMobil is involved
in remediating the Bayonne and Linden sites
under a 1991 Administrative Consent Order,
the DEP filed its current lawsuit to require
ExxonMobil to restore some of the on-site
natural resources it damaged and destroyed,
and to compensate the public for loss of the
natural resources from the time pollution
began until those resources are restored.
The specific amount of money
owed by ExxonMobil will be determined at trial.
In denying ExxonMobil’s
motion to dismiss the state’s claims,
Judge Anzaldi held that the state’s
argument that ExxonMobil should be held accountable
for pre-Spill-Act damage to natural resources
was a “logical analysis and continuation”
of a related Appellate Division ruling in
the same case in 2007. The judge ruled that
retroactive application of the Spill Act should
apply to all cleanup and removal costs involving
ExxonMobil’s Bayonne and Linden sites,
including natural resource damages.
The state is represented in
the ExxonMobil matter by: Special Counsel
Allan Kanner and Elizabeth Petersen of the
New Orleans law firm of Kanner & Whitely;
Bruce Nagel and Wayne Greenstone of the Nagel
Rice law firm in Roseland, New Jersey, and
Deputy Attorney General Richard Engel of the
Division of Law.
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