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TRENTON
-- A Superior Court Judge has rejected ExxonMobil’s
latest attempt to limit its exposure in connection
with natural resources it damaged or destroyed
during nearly a century of the company’s
refinery and petrochemical operations in northern
New Jersey.
In
a recent written opinion, Superior Court Judge
Ross Anzaldi denied ExxonMobil’s attempt
to prevent the State from recovering damages
associated with natural resources that ExxonMobil
argued were privately owned and therefore
no longer part of the public trust. The natural
resources at issue are located on or adjacent
to former ExxonMobil property. However, Judge
Anzaldi ruled that the State has a right,
as a public trustee, to seek damages regardless
of a lack of property ownership.
The
judge reaffirmed both the breadth of New Jersey’s
Spill Compensation and Control Act and the
use of discretion by the Department of Environmental
Protection (DEP) in seeking damages from ExxonMobil.
He ruled that “any lands that have been
contaminated as a result of actions by Exxon
or its predecessors” could be subject
to damages as outlined by the Appellate Division
under the Spill Act.
“This
is an important decision for the people of
New Jersey, and for our environment,”
said First Assistant Attorney General Ricardo
Solano Jr. “Through this ruling, the
court has upheld and strengthened our ability
to go after polluters who damage or destroy
precious natural resources, regardless of
whether those resources are publicly held
or privately owned.”
“I applaud the court for strengthening
the state's ability to pursue Natural Resource
Damage claims against corporate polluters
on behalf of the public," DEP Acting
Commissioner Mark N. Mauriello said. “The
DEP remains committed to fighting for compensation
for ecological damages and to restoring our
natural resources for the benefit and enjoyment
of all.”
In
September 2008, the court found ExxonMobil
had caused a public nuisance by polluting
waterways, wetlands and marshes on and near
its former refinery sites in Bayonne and Linden.
Subsequently, ExxonMobil filed a motion arguing
that DEP’s claims for damages linked
to the Bayonne and Linden refineries were
a “radical, far-reaching extension”
of its powers and authority.
In rejecting that argument, Judge Anzaldi
noted that the Appellate Division made plain
-- in a prior ruling in the same ExxonMobil
case -- that the “Legislature intended
to expand, not contract” DEP’s
ability to recover compensatory damages from
polluters.
ExxonMobil and its corporate predecessors
operated petroleum refineries and petrochemical
manufacturing and storage facilities at the
1,300-acre Linden site (Exxon Bayway) and
the 288-acre Bayonne location (Exxon Bayonne)
since the early 1900s. Between 1909 and 1972,
the two refineries were interconnected by
pipeline and typically operated as a single,
integrated refinery and petrochemical facility.
Throughout decades of operation, the two facilities
discharged hazardous substances – including
petroleum products – into the soil and
groundwater both on and underneath the Linden
and Bayonne properties.
The Exxon Bayway property, located at 1400
Park Avenue in Linden, is contaminated with
benzene and other petroleum hydrocarbons.
Hazardous substances from the Bayway plant
are also present in surface water and wetlands
on and adjacent to the site. The Exxon Bayonne
facility, located on East 22nd Street in Bayonne,
operated through 1972 as a site for petroleum
refining. Since then, it has been used principally
as a storage location for petroleum products,
a wholesale distribution facility, and as
a manufacturing site for oil additives. Contamination
at the property includes a variety of petroleum-product-related
pollutants.
Both the Linden and Bayonne refinery properties
are subject to Administrative Consent Orders
(ACOs) for site remediation entered into between
ExxonMobil and DEP in 1991, and clean-up work
continues at both properties today. The ACOs
did not, however, limit or preclude the state
from pursuing legal claims for natural resource
damages.
The
State filed its current lawsuit against ExxonMobil
after being unable to reach agreement with
the company as to what constituted adequate
restoration of the Linden and Bayonne sites
to “pre-discharge” condition,
and what was adequate compensation to the
State for its lost natural resources.
Deputy Attorney General Richard Engel, of
the Division of Law, handled the ExxonMobil
matter on behalf of the State along with Special
Counsel Allan Kanner of the New Orleans law
firm of Kanner & Whiteley LLC.
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