Opinion: Recent Successes Reimburse Taxpayers for State-Funded Hazardous Waste Cleanups

Michael Catania | September 13, 2012 | Energy & Environment
Current cost-recovery efforts were initiated by earlier administrations, will we carry on that tradition?

Kudos to the Christie administration, especially to the environmental enforcement attorneys in the Division of Law and to the DEP enforcement staff, who recently announced that almost $30 million has been recovered in four separate lawsuits against responsible parties.

Apparently, this was the largest amount ever recovered in one year by the DEP. Not a bad haul.

In all four cases, state funds were used to clean up past contamination. Then the agencies chased down the guilty parties and held them responsible for recovering those funds.

The recovery required some painstaking but effective old-fashioned detective work by the DEP staff, as well as an impressive legal effort by public attorneys who are almost always overworked, underpaid, and outmanned by the legions of high-priced lawyers who represent the responsible parties.

These lawsuits are not only complex, but they take many years — and often decades — to wend their way through the courts or reach a settlement. Invariably, the administration that launches these efforts is no longer in office when the time comes to announce success. That is why the continued commitment to vigorous enforcement and cost recovery of each successive administration is critical to eventual success. It will also help unearth future cases to prosecute.

Further, each administration, in turn, gets to enjoy the credit for efforts launched by its predecessors, and launching or continuing its own efforts that will make their successors look good someday. That’s just the nature of the beast.

These recovery efforts are a perfect example of how New Jersey’s tough environmental laws. Making polluters pay by imposing strict liability on folks who discharge hazardous waste onto our land and into our water and air, protects the public health and welfare, as well as the pocketbooks of taxpayers, and the vast majority of honest businesses.

These far-sighted laws also allow the DEP to order those responsible to clean up or face triple damages .They also enable the agency to use public funds to clean up the mess left by recalcitrant parties. That provides not only a powerful incentive for privately funded cleanups, but also a bit of coverage for “orphan” sites, where the responsible parties are long gone or bankrupt.

But most of all, these efforts underscore the need to stay the course on environmental policy in general, and on vigorous enforcement in particular.

The cost recovery unit that worked on these actions was created by the Kean administration as a “priority package,” a promising program to invest in when the state actually had budget surpluses and was debating how best to spend them. But it was nurtured by every governor, DEP commissioner and attorney general since then –at least until recently.

Over the past few years, I’ve wondered if reductions in the DEP staff, as well as the worrisome vacancy rate for public attorneys, have seriously affected the pipeline for filing and pursuing claims that will drive future recovery actions.

That’s not good for anyone: not beleaguered taxpayers; not the elderly or the very young; not the chronically ill, who are most at risk by exposure to toxic chemicals; and not the vast majority of responsible businesses that play by the rules and must compete with unscrupulous companies and individuals who violate those rules with impunity.

And don’t even get me started on what easing up on enforcement does to morale at the DEP or the Attorney General’s Office. It would seem obvious that the only ones that benefit from reducing enforcement actions are the dishonest few who break the rules and leave the rest of us to clean up their mess.

There are other troublesome trends as well, including the state’s reticence to join with other states and the federal EPA on major litigation to protect the public health. Almost as troubling is the rhetoric about running DEP like a business and treating the regulated community (rather than the public at large), as the agency’s principal client.

And while we do not hear much about enforcement numbers these days, the general sense of most people in both the environmental community and the business community — as well as the DEP staff — is that enforcement is now a lower priority: fewer violations are being written up, fewer new lawsuits are being filed. When the initiatives of past administrations are eventually brought to fruition, we should wonder what our legacy will be — and what unfortunate signals are being sent to the irresponsible few who despoil our air, water, and land for profit.

Vigorous environmental enforcement ought to be a motherhood and apple pie issue, tailor-made for any tough-talking politician. But so far, our governor seems much more concerned with taking the credit for the hard work done by his predecessors than in making his own investments to protect both our environment and our economy.

So just what is the Christie environmental legacy?

So let’s give credit where credit is due, both to past administrations and to the current one. We should offer our congratulations on the recent cost recovery efforts. And we should give our sincere thanks to the dedicated professionals who made this happen after many years of effort.

But let’s also keep a watchful eye on whether or not we are taking the steps today that will lead to similar cost-recovery actions in the years to come.