New Jersey to seek damages for pollution

State's decision could create steep costs for businesses

November 06, 2003|By Ken Stier | Ken Stier,NEW YORK TIMES NEWS SERVICE

After months of threatening imminent action, New Jersey officials say they will soon begin broadly enforcing a law that requires polluters to pay the total costs of restoring water sources and other natural resources damaged by contaminants, not just clean up the mess left behind.

The state's decision to pursue aggressively what are known as natural resource damages could create hundreds of millions of dollars in additional costs for New Jersey businesses, especially any heavily polluting chemical and petrochemical companies.

Such damages have been collected in the past, but generally only in cases related to catastrophic ecological events, like major oil spills. New Jersey's program, which is being closely watched by other states, would be the first systematic attempt to seek restoration and compensation for damage to natural resources in cases involving more routine pollution.

"Like in other states, our natural resources have been diminished far more by the accretion of smaller environmental insults from various sources of contamination," said Bradley M. Campbell, the state's commissioner of environmental protection, "and it would shortchange the public interest if we write off these claims instead of pursuing them."

In particular, Campbell said, the state must be a better steward of its water resources, since the strains of pollution and overuse are making them the most significant roadblock to the state's growth. New Jersey expects its population to increase by 1 million by 2020.

Demand for water is expected to outstrip supply in a number of areas of the state within a few years. Camden, the economically depressed city on the Delaware River in South Jersey, is expected to exhaust its water supply within a decade, environmentalists and state officials say.

Jeff Tittel, director of the New Jersey Sierra Club, pointed out that Camden could not afford the expense of finding an alternative water source.

That kind of talk makes industry nervous. Many companies already regard themselves as scapegoats for the pollution created during the days when environmental controls were virtually nonexistent, and they fear that they are now being asked to shoulder a range of environmental burdens that are the price of the state's prosperity, including looming infrastructure expenses.

Critics of the state's plan say aggressive enforcement could scare businesses off in a struggling economy and undermine cooperation on current cleanup programs.

The state will initially focus on areas where there has been significant contamination of ground water. There are more than 3,000 known sites of such contamination, according to the Department of Environmental Protection.

States are the sole trustees of ground water, whereas oversight for other natural resources -- surface water, plants, birds and fish -- is shared with federal authorities.

For the last few months, state environmental officials have been negotiating with companies responsible for contaminated sites, and the state had set several deadlines -- the last one was Labor Day -- for the enforcement crackdown. But Campbell said last Wednesday that the negotiations and the preparation of legal claims against uncooperative companies were taking longer than expected.

"There will be a series of announcements later this month on claims against responsible parties that have liabilities at one or multiple sites," he said.

The state first developed regulations for enforcing natural resource damage claims under the administration of former Gov. Christine Todd Whitman. They have been rarely enforced since the state won an appeals court ruling in April 2000 thwarting a legal challenge by industry giants including Chevron, Exxon, Mobil, Public Service Electric and Gas and DuPont.

Shortly after the ruling, the industry won passage of a law forcing the state to assert claims of damage to natural resources by 2005, a factor that is encouraging the state to take action, said Tom Borden, director of the Rutgers Environmental Law Clinic. Businesses have long tried to undermine this pending liability.

"Gee whiz, let me think," said John Maxwell of the New Jersey chapter of the American Petroleum Council, which opposes the program. "It's my property, I had a spill, I cleaned it up. Now I have to pay natural resources claims. That doesn't seem appropriate."

In cases where the costs of restoring a natural resource are prohibitively expensive, the state says it will consider a compromise. For example, the state may forgo a claim for damages if a polluter restores nearby wetlands or provides a substitute recreational area.

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