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, 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, 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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