Manko Gold Katcher & Fox
John F. Gullace and Nicole R. Moshang
August 6, 2018
It has been a decade since the State of New Jersey filed a lawsuit to recover natural resource damages (NRDs) for harm to environmental resources that arose from the contamination of soil or water. On August 1, 2018, the state filed three NRD lawsuits and initiated several cost recovery actions to recover funds incurred by the New Jersey Department of Environmental Protection (NJDEP) at several sites. In a press release and at two press events Commissioner McCabe and Attorney General Grewal described the six new lawsuits as the beginning of a new era of environmental enforcement in New Jersey. According to Attorney General Grewal: “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. … Today, we’re back in the environmental enforcement business.”
The six lawsuits involve the Pohatcong Valley Superfund Site in Warren County, the Ronson Metals site in Newark, the Ruggiero Seafood site in Newark, a former Hess petroleum refinery in Middlesex County, a former Mobil gas station in Middlesex County, and the Deull Fuel Company property in Atlantic City. The Pohatcong Valley Superfund Site, the former Hess site and the Atlantic City property each involve NRD claims. Lieutenant Governor Oliver added that “Today we are sending a clear message that we will do everything in our power to hold these companies accountable and protect New Jerseyans.” The clear message from these three senior Murphy Administration officials is that this is just the beginning of a larger enforcement initiative. For more information, see the state’s website.
The notion of pursuing recoveries for NRDs first gained momentum in New Jersey under former NJDEP Commissioner Bradley Campbell in 2003 when he issued a policy directive on the subject that led to the filing of multiple NRD lawsuits and a settlement strategy that relied upon a controversial and much maligned formula for monetizing damage to groundwater. Subsequent to the development of that policy, it became common for remediating parties in New Jersey to seek NRD settlements whenever groundwater contamination was implicated in the remediation in order to avoid a later lawsuit by the state – at one point, as a matter of policy, NJDEP refused to issue No Further Action letters for groundwater cases until NRDs had been resolved. The NJDEP also developed a robust website that purported to address all things relevant to NRDs and the restoration of damaged natural resources, but that website now seems out-of-date. Moreover, throughout the tenure of Commissioner Martin (2010 – 2018), the common practice of attempting to settle claims for NRDs with the state as part of the completion of a site remediation, became much less customary in light of the paucity of NRD lawsuits brought during that period. Whether the new initiative will now lead to more careful consideration of settling NRD claims by parties conducting remediations remains to be seen, however, of particular interest in that regard is that the statute of limitations for bringing NRD claims was extended to five years and six months from the completion of a remediation at the time of the passage of the Site Remediation Reform Act in 2009, meaning that some claims that accrued during Martin’s tenure may have lapsed, but many claims still survive.
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Gullace and Ms. Moshang and may not reflect the opinions of Synergy Environmental, Inc., Manko Gold Katcher & Fox or either of those firms’ clients.