Trenton — The State of New Jersey is forfeiting hundreds of millions of dollars in damages from polluters in contaminated groundwater cases, according to Public Employees for Environmental Responsibility (PEER), which has asked for a review of the program by the state Comptroller. The state’s failure to adopt regulations governing how to calculate “natural resources damages” (NRD) for polluted drinking water has contributed to its inability sustain assessments against polluters.
The state’s most recent setback occurred in the case of New Jersey Department of Environmental Protection, et al. v. Essex Chemical Corporation in which the Appellate Division chastised DEP for failure to make a cogent claim for millions of gallons of groundwater contaminated during 8 years of leaking underground storage tanks. This latest rebuke follows earlier decisions striking down DEP recovery attempts due to not establishing, by regulation, a reliable formula for calculating natural resources damages. In the absence of regulation, courts have found DEP lacked adequate scientific support to proceed on a case-by-case basis, as in the Essex Chemical case.
The absence of a regulatory undergirding for NRD has been known as a serious vulnerability inside DEP for a decade. Even the Christie Transition Report on DEP in January 2010 recognized the problem:
“With respect to the State’s efforts to seek compensation for damages to natural resources (NRD), we recommend that…rules be adopted to provide transparency, certainty and consistency in the assessment of those damages.”
“This is a triple rip-off of taxpayers: First, the public gets stuck with the enormous bill for treatment of tainted groundwater, replacement lines and new wells. Second, the public pays for DEP to play endless rounds of fruitless enforcement tag with corporate polluters. Third, government lawyers waste years in losing litigation,” stated New Jersey PEER Director Bill Wolfe, noting that the Christie DEP also failed to follow through on regulations as urged in its Transition Report. “Is it any wonder that so much of New Jersey’s drinking water is contaminated?”
The state already missed the statute of limitations for pursuing natural resource recoveries in more than 4,600 contaminated sites prioritized by DEP. In 2007, as time was running out, the state filed 120 lawsuits seeking NRD assessments. Those lawsuits, however, appear to be foundering on the lack of regulation and focus. Prospects for any future litigation and ongoing NRD settlement negotiations in an unknown number of groundwater pollution cases also remain clouded.
“This mess was wholly preventable but even now the state is not taking the measures everyone agrees are needed,” Wolfe added. “It appears that we have utterly lost the capacity for enlightened environmental leadership in New Jersey.”
PEER is asking the Comptroller to review the performance of the NRD, determine the extent to which taxpayers are not attaining full NRD recoveries and make recommendations for putting the program back on track in a more transparent and accountable fashion.
Read the PEER call for a Comptroller review
Look at latest court decision striking down state NRD assessment
Examine high contamination rates in New Jersey’s groundwater
View Christie DEP transition report (NRD recommendation on page 15)