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New Jersey Department of Environmental Protection, the Commissioner of v. Essex Chemical Corporation

March 20, 2012

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, THE COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND THE ADMINISTRATOR OF THE NEW JERSEY SPILL COMPENSATION FUND, PLAINTIFFS-APPELLANTS,
v.
ESSEX CHEMICAL CORPORATION, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5685-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 10, 2012

Before Judges Messano, Yannotti and Espinosa.

Plaintiffs, the New Jersey Department of Environmental Protection (DEP), the DEP Commissioner and the Administrator of the New Jersey Spill Compensation Fund, appeal from a judgment entered by the trial court on August 6, 2010, dismissing plaintiffs' complaint against defendant Essex Chemical Corporation (Essex). We affirm.

I.

In June 2007, plaintiffs commenced this action seeking, among other things, natural resource damages pursuant to the Spill Compensation and Control Act (Spill Act or the Act), N.J.S.A. 58:10-23.11 to -23.24. Plaintiffs sought primary restoration and compensatory restoration damages as a result of the discharge of hazardous substances on property that Essex previously owned in the Township of South Brunswick (Township). In addition, plaintiffs asserted claims based on nuisance and trespass. The court conducted a trial in the matter, sitting without a jury.

At the trial, evidence was presented which established that, from 1976 through 1984, Essex owned and operated a paper products preparation facility on an 11.4 acre site, which is designated as Block 91, Lot 14.03 on the Township's tax map. In 1985, Essex sold the property. However, before the sale, Essex identified various locations on the property where discharged hazardous, non-chlorinated and chlorinated chemicals had leaked into the soil and groundwater. Essex negotiated with the DEP's Site Remediation Program (SRP) to develop and implement a remediation plan for the contamination.

On the western side of the property, Essex had discovered that underground storage tanks had leaked non-chlorinated volatile organic compounds of benzene and toluene. From 1985 to 1992, with the SRP's approval and oversight, Essex removed the tanks, excavated the contaminated soil, and installed a pump-and-treat system to address the groundwater contamination.

Essex's efforts did not completely remediate the groundwater contamination because in 2001, the pump-and-treat system reached an "asymptotic mean," that is, the system stopped removing the contaminants when the levels of contaminants dropped to very low amounts. According to Joel S. Fradel (Fradel), the SRP's geologist who worked with Essex on the remediation of the site for about twenty years, pump-and-treat systems commonly reach an asymptotic mean.

Essex therefore proposed, and the SRP approved, the implementation of a new remediation plan involving in-situ chemical oxidation, which involves the injection of a reactive solution into the groundwater to change the contamination into non-hazardous chemical by-products. Essex began to apply this technology in 2001. By May 2003, the SRP informed Essex that it was "very pleased" and "satisfied" with the results. Fradel testified that the in-situ chemical oxidation was totally effective, and the western side of the site had been cleaned up.

On the northern and eastern sides of the site, Essex had discovered chlorinated volatile compounds of tetrachloroethylene (PCE) and trichloroethylene (TCE) in the soil and groundwater. In 1992, with the SRP's approval, Essex implemented a soil vapor extraction system, thereby "vacuuming" the soil above the water table to remove contaminated vapors. This substantially reduced but did not completely eliminate the levels of contamination. In 1994, Essex proposed, and the SRP approved, changing the remediation plan to add a pump-and-treat system to clean the groundwater.

This dual phase system reached an asymptotic mean in December 2000, and Essex discontinued it. However, in February 2002, the contamination levels rebounded and Essex restarted the system, which reached another asymptotic mean in 2004. In May 2005, Essex proposed, and the SRP approved, the addition of in-situ bioremediation, which involves the injection of a slow-release substrate, similar to vegetable oil, into the subsurface to encourage the growth of naturally occurring organisms to break down the contaminants over time.

Essex implemented this plan and the contamination in the soil and groundwater was reduced to "near or below" the pre-discharge restoration levels. Fradel testified that, although there was still minimal contamination in the bedrock, the SRP believed Essex had done what it needed to do with regard to on-site remediation. Essex had spent approximately $5 million on its remediation efforts. Fradel testified that he did not consider the length of time Essex took for remediation to be unreasonable.

Essex and the SRP thereafter focused on the PCE and TCE contamination that had migrated under the railroad tracks to Lot 14.07, an adjacent property that Essex never owned but agreed to remediate. In January 2008, Essex proposed implementing in-situ bioremediation to address any remaining contamination on its property and the contamination on Lot 14.07. Fradel testified that this system was faster, more cost effective and more reasonable at lowering and eliminating any contamination than a pump-and-treat system.

John Sacco (Sacco) is the administrator of the DEP's Office of Natural Resource Restoration (ONRR). Sacco testified that the ONRR had been established in the early 1990s. Its goals are to restore the State's contaminated natural resources to the pre-discharge conditions in "a timely fashion" and ensure that the public "is made whole" for all injuries to these resources, their services and their uses. Sacco said that the ONRR works with the SRP to develop technical requirements for remediation and restoration.

Sacco explained, however, that the SRP's goal is to address human health concerns, while the ONRR independently seeks: (1) primary restoration damages to guarantee that the injured natural resource, including any lost or impaired uses or services, will be returned to its pre-discharge condition; and

(2) compensatory resource damages to compensate the public for "the amount of time that its resource was contaminated" before it was returned to its pre-discharge condition.

To prove their claims for primary restoration damages, plaintiffs presented testimony from Dr. Charles Andrews, Ph.D. (Andrews) and Michael Rafferty (Rafferty). Andrews testified that Essex's remediation technologies had not succeeded in restoring the groundwater to its pre-discharge conditions, because low levels of contamination remained on the site and on Lot 14.07. He said that pump-and-treat systems were "one of the most commonly used remediation techniques," but both he and Rafferty opined that pump-and-treat was ineffective and never completely removed all of the contamination even after decades of use.

Andrews and Rafferty developed a plan to restore shallow groundwater on the site to pre-discharge conditions within ten years. They proposed physically removing the contaminated groundwater and associated soils by excavation within a thirteen-acre contamination plume footprint, and then flushing the remaining areas of contamination with clean groundwater by using a groundwater extraction trench and perforated pipes running parallel to the plume for about 700 feet.

Gary Elmer Hokkanen (Hokkanen) determined the footprint for the contamination plume. Hokkanen testified that in his model, he gave Essex no credit for the volume of contamination that Essex had remediated. Hokkanen also explained that his model assumed that the only discharge of hazardous substances had occurred in 1977, although he later learned that the first discharge occurred in the 1980s.

Rafferty testified that it would cost $5.7 million to implement plaintiffs' proposed primary restoration plan. Andrews admitted that soil excavation was more expensive than other remediation technologies, such as bioremediation, but he said that "it ...


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