N.J. AG's office picks up win against Exxon

John O'Brien Jun. 6, 2007, 2:00pm

TRENTON, N.J. - Exxon has to pay compensatory damages related to the alleged destruction of a natural resource, the New Jersey Appellate Division decided Wednesday.

The ruling reversed a trial court decision that stated the Department of Environmental Protection could only seek clean-up and restoration costs regarding the aftermath of contamination at two Exxon refinery sites.

First Assistant Attorney General Anne Milgram, who was nominated by Gov. Jon Corzine to become the state's next attorney general after he nominated Stuart Rabner for Chief Justice of the Supreme Court, said the ruling clears up the statutory reach of the state's Spill Act.

"Today's Appellate ruling is significant because it recognizes not only the state's authority under the Spill Act to require polluters to clean up and restore properties they've contaminated, but to seek compensation on behalf of New Jersey's citizens for natural resources lost to pollution. We look forward to presenting our proofs at the trial level," Milgram said.

Exxon operated petroleum refineries and petrochemical manufacturing and storage facilities at a Linden site and Bayonne site. Those sites were connected by a pipeline from 1909-1972.

Meanwhile, it is alleged that the facilities discharged hazardous waste like benzene into the soil and groundwater near the properties.

An Administrative Consent Order between the DEP and Exxon was entered into in 1991, and Exxon is still cleaning up the properties. The State filed a lawsuit in Aug. 2004, partly alleging that wetlands and indigenous plants and animals had been harmed and vital wetlands functions had been compromised.

In July 2006, a trial court dismissed the loss of use claim because it was beyond the Spill Act's reach. The Appellate Division did not agree.

"If, as defendant contends, only damages for physical restoration of a resource is permitted under the Act, the 'compensation for damage to or loss of' language contained in the amendatory provisions would be unnecessary and meaningless. Clearly, it is not proper statutory construction to reach a result that would render a provision completely meaningless," the opinion says.

"Stated another way, after a responsible party is ordered to pay primary restoration damages, the only residual uncompensated aspect of the injury and, therefore, what the Legislature intended to address by adopting 'compensation for damage to, or loss of' language, may reasonably be regarded as the compensatory restoration damages that the DEP now seeks."

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