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New Jersey Department of Environmental Protection v. Amerada Hess Corp.

ELR Citation: 47 ELR 20142
Nos. 15-6468 , (D.N.J. , 11/01/2017) (Wolfson, J.)

A district court held that gas companies will have to face monetary compensation claims under the the New Jersey Spill Act for releases at five sites. The case concerns releases of Methyl Tertiary Butyl Ether (MTBE) at five gas stations in the state of New Jersey. The New Jersey Department of Environmental Protection (DEP) sought recovery for groundwater contamination. The gas companies filed a motion in limine contending that once they completed DEP's previously approved remediation plans, the contaminated groundwater at and around the sites will, eventually, through the process of natural attenuation, reach pre-discharge concentrations of MTBE. They argued that the restoration damages must be interpreted as "expedited remediation," giving rise to a higher burden of proof that there must be an injury or threat to human health, flora, or fauna. DEP rejected this interpretation, stating that the Spill Act entitled the agency to damages for any primary restoration plan that is “practicable,” meaning “available,” “capable of being done,” or “not impossible,” without any further limitation. The court held that DEP was not seeking expedited remediation, but seeking separate, primary restoration to cover the process of returning MTBE levels in groundwater to pre-discharge levels. Further, the companies cited no authority suggesting that the inevitability of a contaminant reaching pre-discharge levels through no action is equivalent to the active conduct of bringing about such a reduction through an approved remediation plan. The motion was denied.