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Court Decision Rolls Back Toxic Site Cleanup Standards

Date : Thu, 27 Sep 2012 11:12:49 -0400

For Immediate Release
September 26, 2012 Contact Jeff Tittel, 609-558-9100

Court Decision Rolls Back Toxic Site Cleanup Standards

Today a Supreme Court ruling makes it harder for the DEP to hold a polluter liable under the Spill Act.The Court upheld an Appellate division caseNew Jersey DEP v. Ofra Dimant where PCE was found in the groundwater under a dry cleaning business.The court ruled that even tough PCE wa sin the groundwater and the dry cleaner had a continuous leak there was not absolute evidence making that connection.Under federal regulations you just need a preponderance of evidence and under state Spill Act you need absolute evidence.This decision comes 2 months after the court ruled in *Des Champs Laboratories, INC., vs. Robert Martin* that the DEP does not have jurisdiction to require a property owner certify the site has been cleaned up or is pollution free before they sell it.Our laws regulating toxic sitesneed to be tightened to address these issues.

"This decision makes it very hard for DEP to require cleanups where there is contaminated groundwater, especially in urban areas where there are many leaks and spills.This will mean more toxics in our groundwater and make it very difficult for DEP to enforce the Spill Act in those areas and require proper clean ups,"*said Jeff Tittel, Director, NJ Sierra Club*."The Legislature needs to fix the Spill Act to address this new loophole otherwise people will end up finding themselves surrounded by contamination with no one held responsible for the clean up.It is not just the chemicals themselves but vapors from the chemicals that can enter people's homes and affect their health." The pollution was a drip of PCE that entered the groundwater under the site for numerous years.Under federal regulations the dry cleaner would be held liable, but under state regulations they are not.This decision could impact underground storage tanks and other sites where you get small seepages, leakages, and spills.Where you may not have direct evidence and polluters would be let off the hook. The court is wrong because if you can show there has been a leak at a site for a certain chemical and it enters the groundwater, unless you can show there is another source it had to be contributing.A leak can find many paths to enter the groundwater.Since it was just a drip it may be difficult to meet this overly high burden of proof. Under Des Champs Laboratories, INC., vs. Robert Martin, the property owner does not have to remove all the toxins due to the weakening of cleanup standards in the Industrial Site Recovery Act and the Site Remediation Reform Act.As long as they think there is a small amount of pollution and institutional controls work they do not have to certify the site is clean.The Legislature and Governors have weakened DEP oversight on toxic sites and clean up requirements and the Court has ruled that setting standards for final cleanup is no longer in the agency's authority.

"This is now a one two punch when it comes to keeping people safe form chemcical spills and requiring toxic clean ups," said Jeff Tittel.

 The Licensed Site Remediation Professionals (LSRP) program went into effect in May.Under the program all contaminated sites, except a select few, have their cleanup plans developed, implemented, and overseen by private contractors hired by the owners, responsible parties or people who purchase these properties.The consultants pick the cleanup plan and can waive compliance and even standards.There is virtually no DEP oversight or enforcement mechanisms.

"Between the privatization of site remediation and these court case many toxic sites in New Jersey will not get adequately cleaned up or cleaned up at all.Unless this is addressed by the Legislature we will see more people in communities impacted by chemical spills," said Jeff Tittel.

The court case can be accessed here: http:www.judiciary.state.nj.us/opinions/supreme/A211DEPvDimant.pdf<a>

-- 
Kate Millsaps
Conservation Program Coordinator
NJ Chapter of the Sierra Club
609-656-7612
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