Law Would Make It Tougher for Polluters to Walk Away from Contaminated Sites

Tom Johnson | October 17, 2012 | Energy & Environment
Owners and operators of industrial facilities would have to certify that site is free of pollutants

The Legislature is moving to close a loophole involving the cleanup of contaminated industrial properties, which some fear may have allowed owners of the property to potentially avoid liability for pollution at the site.

By a unanimous vote, the Assembly Environment and Solid Waste Committee this week approved a bill (A-3367) that would require the owner or operator of an industrial establishment to certify there is no contamination on the property.

The certification requirement previously existed under regulations adopted by the New Jersey Department of Environmental Protection, but was struck down by a state appeals court this past summer.

In ruling the state agency had overstepped its authority in ordering an industrial outfit to certify that is property was not contaminated, however, the three-judge panel invited the Legislature to clear up any ambiguities.

The issue revolves around regulations dealing with the Industrial Site Recovery Act (ISRA), a 1993 law that overhauled a program designed to ensure polluted industrial properties were cleaned up before being sold or shut down.

The law exempted the owner if the facility’s use of hazardous substances never exceeded “de minimis’’ levels. In adopting regulations to enforce the law, the DEP required the owner to certify the property was not contaminated.

In a 36-page decision, the appeals court held that the requirement for such certification was without sufficient legislative authorization and therefore invalid. Under the bill approved by the panel, to qualify for the exemption, an owner or operator would be required to certify they have no actual contamination at the industrial establishment above cleanup standard.

In its ruling, the court said legislators could require the DEP to require certification.

“In particular, nothing in this opinion precludes the passage of amended legislation that would explicitly and unambiguously require a[n] . . . applicant to certify that its property is now ‘clean’ before closure or sale, or, at the very least, make clear that the department is authorized to adopt and enforce regulations imposing such significant obligations.’’

The case stemmed from an appeal brought by Des Champs Laboratories, Inc. in Essex County, which obtained a “no further action’’ letter from the DEP when it sought to sell the facility. The letter asserted there had been no discharge of hazardous substances from the facility, but eight years later investigating groundwater pollution in the area, the DEP traced it back to Des Champs.

The bill won praise from environmentalists.

“This bill goes a long way to closing a loophole, which was never the intention of the Legislature,’’ said Jeff Tittel, director of the New Jersey Sierra Club.

The original law governing industrial facilities was passed in 1983, approved after dioxin was discovered at a former manufacturer of Agent Orange in Newark. The contamination, which seeped into the Passaic River, has not yet been cleaned up.