Source: http://www.nj.com, September 26, 2012
By: MaryAnn Spoto/The Star-Ledger
State environmental officials can’t go after businesses for contaminating the ground unless they have ironclad proof — and not circumstantial evidence — that the firms caused the damage, the state Supreme Court ruled Wednesday.
The decision drew instant praise from business owners who say they need protection from having to pay for messes they didn’t create. Environmentalists, however, said it will make it easier for polluters to get off the hook.
Steven Picco, the attorney representing the Fuel Merchants Association of New Jersey, which participated in the case, said the Department of Environmental Protection in the past half decade swept many businesses into cleanup without knowing whether they were responsible for contamination.
“It represents a pretty strong signal by the court that the DEP has to get back to the substance of the regulation rather than create policy on the fly,” he said. “It’s basically saying you can’t just allege there’s a connection. You have to have a reasonable connection.
Hilary Semel, executive director of the Eastern Environmental Law Clinic, which sided with the DEP in the case, said the state needs legal teeth to go after polluters.
“We are definitely concerned a proven discharger got away with discharging a powerful carcinogen into the groundwater without being held liable for even an investigation of the consequences of that discharge,” said Semel.
The case grew out of a DEP action in 2005 against Sue’s Clothes Hanger in Bound Brook, a laundromat that also used dry-cleaning machines for 15 months from 1988 to 1989. The DEP wanted Sue’s owners, Chouchan and Riad Samman, to share the cost to clean up private wells contaminated with percholoroethylene (PCE), a compound used in dry cleaning and as a degreaser in automobile shops.
In 1988, a year after the Sammans bought the West Union Avenue store, a local health inspector, accompanied by DEP inspectors, found a pipe dripping liquid containing 3,000 times the allowable level of PCE onto the outside pavement.
During another investigation, in 2000, a DEP geologist concluded Sue’s and Zaccardi’s, another dry cleaner down the street, were responsible for the well and groundwater contamination. Zaccardi’s has since settled with the DEP.
George Hardin, the attorney for the Sammans, said his clients weren’t responsible because they operated the dry-cleaning machines for a short time, ending in 1989, and because there was no proof the leaking liquid even seeped into the ground.
Noting Bound Brook is bordered by two major Super Fund sites, he argued the DEP failed to investigate other potential sources of contamination, including a nearby gas station, a car dealership and other local dry cleaners. He said the DEP never pursued the former owners of the business, which had operated as a dry cleaners as far back as the 1950s.
At trial, the judge said there wasn’t enough evidence to show that one pipe was the source of the widespread pollution and dismissed the suit against the Sammans. An appeals court and the Supreme Court, in its 6-0 decision issued Wednesday, agreed.
“The DEP’s proofs were inadequate to obtain the relief it sought from Sue’s,” Justice Jaynee LaVecchia wrote for the court. “It never presented sufficient proof of a reasonable, tenable basis for how the drip of fluid containing PCE observed at Sue’s one day in 1988 resulted in the contamination of the groundwater in Bound Brook.”
Hardin Wednesday said his clients, who would have had to pay $3 million toward the cleanup “weren’t responsible and certainly shouldn’t go bankrupt.”
“What they have to prove is a ‘reasonable connection’ between the discharge and the contamination that is sought to be remediated before you can impose liability on a business for that contamination,” he said.
DEP spokesman Larry Hajna said the department had no comment Wednesday because it is reviewing the decision.
Semel said the decision does consider a release of a hazardous substance to be a discharge, which could help the DEP act against polluters. But she said the Spill and Compensation and Control Act that allows the DEP to pursue potential polluters is usually interpreted broadly so it can address releases quickly. That may be harder now, she said.
John Galandak, president of the Commerce and Industry Association of New Jersey, said DEP “was overstepping its bounds, and if left unchecked (it) would have presented unreasonable risks to those businesses considering New Jersey as a place to begin or grow their business.”