In a decision issued earlier this month, Judge Wolfson of the District of New Jersey held that the New Jersey Department of Environmental Protection (“NJDEP”) could recover primary restoration natural resource damages from a responsible party as long as NJDEP demonstrated by a preponderance of the evidence that its proposed primary restoration plan is “practicable.” New Jersey Dep’t of Envtl. Prot. v. Amerada Hess Corp., No. 15-6468 (FLW)(LHG) (D.N.J. Nov. 1, 2017). In so holding, Judge Wolfson rejected an argument by the defendants, including Exxon Mobil Corporation and ExxonMobil Oil Corporation (“Defendants”), that primary restoration natural resource damages were available only upon a showing of “an injury or threat to human health, flora, or fauna.” The court found that such a standard, which was derived by Defendants from unpublished, non-controlling authority from New Jersey state courts, was inconsistent with the plain language of the Spill Act that speaks directly in terms of “practicability.”
The case relates to contaminated groundwater at and around five gas stations in New Jersey. The groundwater is contaminated by Methyl Tertiary Butyl Ether (“MTBE”), a gasoline additive, in concentrations in exceedance of New Jersey’s ground water quality standards (“GWQS”), which is 70 ppb. Defendants were remediating MTBE in groundwater at the sites down to the 70 ppb GWQS. The narrow issue before the court was whether Defendants should be afforded leave to file a partial motion for summary judgment to preclude NJDEP from seeking the recovery of primary restoration natural resource damages under the New Jersey Spill Compensation and Control Act (the “Spill Act”).
Primary restoration damages are the cost of restoring resources to their pre-discharge condition. The Spill Act authorizes NJDEP to commence a civil action for “the cost of restoration and replacement, where practicable, of any natural resource damaged or destroyed by a discharge[.]” Here, although Defendants were remediating MTBE to the 70 ppb GWQS, the natural resources would not be restored to their “pre-discharge” condition because MTBE, which is not naturally occurring, would still be present in the groundwater, albeit in smaller concentrations. Defendants contended that, because they were already remediating the MTBE contamination, NJDEP could recover primary restoration natural resource damages only if the Department demonstrated that there was “an injury or threat to human health, flora, or fauna.” As it was undisputed that there was no injury or threat to human health, flora, or fauna, Defendants argued, they should be entitled to move for partial summary judgment on the issue of primary restoration natural resource damages.
Judge Wolfson rejected the Defendants’ proposed standard, however, and denied them leave to file a motion for summary judgment. The court explained that the Spill Act explicitly stated that NJDEP could recover natural resource damages for restoration “where practicable.” While “practicable” is not defined in the Spill Act, the court relied on its plain meaning to conclude that a remedy is “practicable” if it is “reasonably capable of being accomplished; feasible in a particular situation.” There was no reason, in the courts’ view, that it should read into the statute the more onerous burden proposed by Defendants in the absence of controlling New Jersey precedent. Accordingly, the court held that the issue of the practicability of primary restoration damages was the subject of a factual dispute to be determined at trial.