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Publications
Hard to See Environmental Problems Through Closed Eyes
William J. Friedman
When an obvious high-priority toxic site goes unremediated and is reused in a manner that exposes young children to its hazards, who should be responsible for fixing the problem? And what can we learn about governmental inattention and inefficiency that allowed the situation to occur in the first place? A decision involving a Franklin Township, Gloucester County, property where the Kiddie Kollege day care center had operated in a space that previously housed Accutherm, a thermometer manufacturer, raises these issues and sorts out liability issues, but also exposes defects in the regulation of contaminated former industrial facilities.
This site had already gained notoriety in 2006 upon the discovery that Accutherm had left behind mercury contamination, and children and day care center employees had elevated levels of mercury in their systems. These revelations prompted the state Legislature to hastily pass a law requiring a new regime of testing and approvals for any location proposed for the care of children.
Kiddie Kollege returned to the public eye in May when the Superior Court, invoking a provision in the Industrial Site Recovery Act, or ISRA, transferred ownership of the site from the Navillus Group, which had acquired it through a tax lien foreclosure, back to Accutherm, which had ignored its cleanup responsibilities years before, despite finding that Navillus had been negligent in purchasing the tax lien and arguably did not conduct proper due diligence.
The protection provided when the court took contaminated property off Navillus’ hands starkly contrasts with the treatment facing other purchasers of contaminated property not subject to ISRA. ISRA confines liability to owners and operators, but only of sites where manufacturing was conducted after 1983. However, purchasers of contaminated brownfields properties from New Jersey’s long-ago industrial past, or purchasers of contaminated non-ISRA property (such as gas stations) cannot afford themselves of ISRA’s right to void a sale. Instead, they find themselves on the opposite side of the liability spectrum, merely by virtue of owning a contaminated property, because the New Jersey Spill Act considers purchasers to be persons “in any way responsible” for the contamination, and thus strictly liable, without considering fault or causation, for all cleanup and removal costs, unless they have performed extensive due diligence and qualify as “innocent purchasers.”
For any contaminated site, the New Jersey Department of Environmental Protection wants as many potential liable parties as possible available to fund or conduct a cleanup. Consequently, DEP intends to appeal the Navillus decision. But while neither the thermometer manufacturer/seller that left mercury behind, nor the less-than-diligent buyer demonstrated responsibility or good judgment, DEP and Franklin Township also share considerable blame, as they are the watchdogs that kept their eyes shut.
DEP apparently took the site off its contaminated sites list without any remediation taking place. DEP also had no mechanism to track the closing and future use of a factory employing mercury, despite the obvious ISRA applicability and the department’s horrific past experience with apartments being built in a former manufacturing building in Hoboken that oozed mercury from its floors and ceilings. DEP has never developed a system to prioritize former industrial sites or to keep track of those posing the highest risks, despite numerous legislative mandates to do so.
As for Franklin Township, not only did it ignore ISRA notice requirements to prospective purchasers and to DEP, but it also could have consulted municipal records showing that a thermometer factory operated on the site. But the township seemed more interested in making a few extra dollars by selling its tax lien certificate to Navillus than in pinpointing a potentially hazardous site. And it certainly gave no consideration to prior uses in allowing a day care facility to open.
The court claimed that DEP and Franklin are in no worse position than before, but apparently did not consider whether the day care center users are worse off, or whether the apparently assetless Accutherm is likely to conduct an effective cleanup. Clearly, DEP has the database tools to identify high-risk sites when they are closed, and enforcement muscle to push cleanups before corporate assets are dissipated. Municipalities can best serve their citizens by tracking dangerous sites in their backyard. Such initiatives will go a long way toward avoiding future catastrophes.
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© COPYRIGHT 2012 .
BRACH EICHLER L.L.C.
101 EISENHOWER PARKWAY,
ROSELAND, NJ 07068
(973) 228-5700
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