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Mayors Too, Can
Put the Environmental
Cop on the Beat

   
By Daniel J. Reiman
Mayor, Borough of Carteret
& Bradley M. Campbell, President
Bradley M. Campbell LLC
Counselors at Law  

Like many other municipalities across New Jersey, Carteret has had to contend with a range of environmental and public health issues as we work to revitalize older industrial, commercial and residential areas for a new generation of businesses and families.

The New Jersey Department of Environmental Protection (DEP) has been a key partner, of course, in responding to these challenges. DEP’s programs and staff have helped significantly in transforming the Borough of Carteret.

Our DEP Brownfield Development Area (BDA) designation has been crucial to accelerating the cleanup and development of industrial sites. Green Acres program support has given every child in the borough improved access to recreation. And common-sense approaches to permitting have helped launch new businesses, while allowing the borough to proceed with improvements to our new public marina.

Unfortunately, DEP now has to deal with pressing statewide issues while facing the challenges of fewer staff and a shrinking budget, so it is inevitable that our local concerns sometimes do not get the priority attention that our governing bodies would like and that our residents deserve.

Recognizing this reality, the Borough of Carteret several years ago launched an innovative pollution control and environmental enforcement program to address these critical local issues—issues that might that have languished if we relied on the DEP as our only enforcement option. The borough began taking control of our environmental issues by posting a request for qualifications (RFQ) for special environmental counsel, and we received an enthusiastic bid from the firm of former EPA regional administrator and DEP Commissioner (and co-author of this article) Bradley M. Campbell.

Local streams and rivers can become dumping grounds if municipalities rely on DEP alone for environmental enforcement

Carteret recognized that federal and state laws give New Jersey municipalities a well-equipped enforcement toolbox to use at their own initiative, including provisions in many cases for fee-shifting to allow municipalities to pursue environmental claims without any out-of-pocket costs for attorneys fees.

These tools include New Jersey’s Environmental Rights Act, which provides a private right of action against lawbreaking polluters and facilities that threaten local public health and the environment. Notably, the Environmental Rights Act provides for fee-shifting (at the discretion of the court) when pursuing any environmental violation. The Environmental Rights Act also accords special status to municipalities, by exempting local governments from the requirement of giving prior notice to the Attorney General before filing suit.

Using the Environmental Rights Act, the Borough of Carteret brought an action in New Jersey Superior Court against the lawbreaking recycler and property owners responsible for creating a mountain of concrete, dirt, and stone that was more than ten times the volume allowed under the recycler’s DEP permit.

The recycling firm had been issued violation notices, cease-and-desist orders, and penalty assessments by DEP for years, but had continued to accept inbound materials and increase its waste piles despite the DEP notices and a parallel municipal court action by the borough. Dust from the unstable debris piles blanketed local streets in dry weather and would run off into the Arthur Kill in wet weather. Enough was enough.

Dupont site in Carteret
After a local recycler ignored DEP violation notices and created a mountain of debris, Carteret brough its own enforcement action in Superior Court to force a cleanup.

New Jersey’s Spill Act also enables municipalities to hold polluters accountable and to recover cleanup costs. Using the Spill Act and other statutes, the borough brought an action against polluters responsible for coating the Nicholas Minue Elementary School in a layer of dangerous dust that included arsenic, lead, and other toxins. The contamination forced the borough to spend hundreds of thousands of dollars in cleanup costs to protect our school children from exposure to unhealthy levels of hazardous substances.

Other tools successfully used by municipalities include the federal Resource Conservation and Recovery Act (RCRA), which Jersey City has used to its advantage in forcing cleanup of chromium-contaminated sites along its waterfront. The citizens’ suit provisions of the federal Clean Air Act and federal Clean Water Act also can be used by municipalities to address threats to their communities. In addition, New Jersey’s Clean Water Enforcement Act provides municipalities with potential remedies for illegal discharges and stormwater violations.

new jersey's spill act enables municipalities to hold polluters accountable and recover cleanup costs.

The Borough of Carteret is currently evaluating the use of outside counsel to initiate suits under RCRA or pursue other measures to address historic contamination of sediments along the Arthur Kill waterfront, as well as work to force cleanup action by landowners who own parcels of land that are critical to the borough’s redevelopment plans. In many cases, these landowners find it cost-effective to play on DEP’s limited resources, by dragging their feet in meeting their cleanup obligations. The result is that these “mothballed” sites become local hazards and impede new business development.

And the results? Not all the returns are in, but so far Carteret’s program has been a major success.

The Board of Education fully recovered its costs in cleaning up the Nicholas Minue School. Fully recovering its past cleanup costs allowed the Board of Education to proceed with the development of new tennis and basketball courts that had been deferred because of the unplanned cleanup expenses.

not all returns are in, but so far carteret's program has been a major success.

Through the Environmental Rights Act suit, Carteret was able to secure a Superior Court order to shut down the sham recycler and require the cleanup  and restoration of the affected properties. This promises to eliminate a very visible local eyesore that for years has frustrated Carteret’s redevelopment plans for more than 30 acres of real estate. Through these and other efforts, we hope to replace mountains of polluting debris and blight with a scenic waterfront walkway linked to our public marina.

Carteret’s approach may not be right for every municipality, since each local environmental issue has its own unique history and context. Yet mayors and other local elected officials should recognize that DEP cannot solve every environmental problem, and in many cases our local governments already have the tools they need to get the environmental job done.


Bradley M. Campbell is also a former Commissioner of New Jersey DEP and a former Regional Administrator of the U.S. Environmental Protection Agency.

 

Article published in New Jersey Municipalities, November 2010

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