– First Assistant Attorney General
Anne Milgram announced today that the state
has prevailed in its appeal of a trial court
ruling that found the Department of Environmental
Protection (DEP) could only seek clean-up
and restoration costs -- not compensatory
damages related to destruction of a natural
resource – from Exxon Mobil in the
aftermath of contamination at two Exxon
In a written opinion issued today, the Appellate
Division ruled that DEP’s claim for
compensatory restoration or “loss
of use” damages related to ground
water and other pollution caused by Exxon
refineries in Linden and Bayonne is consistent
with the language and intent of the New
Jersey Spill Compensation and Control Act.
A trial court ruled otherwise in July 2006.
It found Exxon Mobil liable for costs related
directly to clean-up and restoration of
the properties at issue, but dismissed claims
in a state lawsuit seeking compensation
for lost use of a natural resource as beyond
the Spill Act’s statutory reach. Today’s
Appellate decision reverses that finding
and returns the case to the trial court
level for argument on whether DEP’s
claim for loss of use damages against Exxon
Mobil is supported by the evidence.
Appellate ruling is significant because
it recognizes not only the state’s
authority under the Spill Act to require
polluters to clean up and restore properties
they’ve contaminated, but to seek
compensation on behalf of New Jersey’s
citizens for natural resources lost to pollution.
We look forward to presenting our proofs
at the trial level,” said First Assistant
Attorney General Milgram.
is an important victory for our environment
and the people of New Jersey,” said
Department of Environmental Protection Commissioner
Lisa P. Jackson. “The Appellate court's
decision removes all doubt that responsible
parties must compensate the public for the
value, use and benefits lost because of
injuries to the natural resources that rightfully
belong to the people.”
Exxon Mobil 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
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 Exxon Mobil and DEP in 1991, and
clean-up work continues at both properties
The ACOs did not, however, limit or preclude
the state from pursuing legal claims for
natural resource damages.
In August 2004, the state filed its current
lawsuit against Exxon Mobil after being
unable to reach agreement with the firm
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.
In its lawsuit, the state contended that
discharges related to decades of oil refining,
petrochemical manufacturing and petroleum
product distribution had polluted the groundwater
and surface water. In addition, the suit
charged that wetlands and indigenous plants
and animals had been harmed and vital wetlands
functions had been compromised, such as
improving water quality, trapping sediment,
recharging groundwater and protecting shorelines
Deputy Attorney General Richard Engel handled
the matter for the state along with outside
counsel. Outside counsel included Allen
Kanner and Elizabeth Peterson from the firm
of Kanner & Whiteley LLC of New Orleans,
and attorneys Bruce Nagel and Wayne Greenstone
of Nagel Rice LLP of Roseland.