GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 1 of 40 Trans ID: LCV2019412164 Gurbir S. Grewal ATTORNEY GENERAL OF NEW JERSEY Richard J. Hughes Justice Complex 25 Market Street; PO Box 093 Trenton, NJ 08625-0093 Ph: (609) 376-2761 By: Richard F. Engel, Deputy Attorney General Bar No. 009401981 KANNER & WHITELEY, L.L.C. Special Counsel to the Attorney General By: Allan Kanner 701 Camp Street New Orleans, LA 70130 Ph: (504) 524-5777 Bar No. 033981980 ATTORNEYS FOR PLAINTIFFS NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION; THE COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION; and THE ADMINISTRATOR OF THE NEW JERSEY SPILL COMPENSATION FUND, Plaintiffs, SUPERIOR COURT OF NEW JERSEY LAW DIVISION - GLOUCESTER COUNTY DOCKET NO. __________ COMPLAINT AND JURY TRIAL DEMAND v. EXXON MOBIL CORPORATION, Defendant. Plaintiffs, Protection the New (“Department” Jersey or Department “DEP”), the of Environmental Commissioner of the Department of Environmental Protection (“Commissioner”), and the Administrator of (“Administrator”) the New Jersey (collectively the Spill Compensation “Plaintiffs” or Fund “the GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 2 of 40 Trans ID: LCV2019412164 State”), file this Complaint against defendant Exxon Mobil Corporation (hereinafter “ExxonMobil”) and allege as follows: STATEMENT OF THE CASE 1. Plaintiffs bring this civil action against ExxonMobil pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -23.24 ("the Spill Act"); the Water Pollution Control Act, N.J.S.A. 58:10A-1 to -20 (“WPCA”); and the common law of New Jersey for cleanup and removal costs and damages they have incurred, and will incur, for any natural resource of this State that has been, or may be, injured as a result of the discharge of hazardous substances or pollutants at ExxonMobil’s Lail Property, as further described below. The hazardous substances and pollutants were discharged at the Lail Property, which is in Paulsboro Borough and East Greenwich Township, but the discharged Property. substances have also migrated off the Lail The total area those substances have migrated to is referred to hereinafter as the “Contaminated Site.” 2. In the late 1950s, Mobil Corporation used the Lail Property for the dumping of drums containing petroleum products and other hazardous substances, thereby discharging hazardous substances and pollutants throughout the Lail Property. 3. In Corporation 1999, and Mobil formed Corporation Defendant corporation. 2 merged ExxonMobil, with a Exxon successor GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 3 of 40 Trans ID: LCV2019412164 4. Over the years, unlabeled drums have been discovered on the Lail Property that contained various forms of distillates, which have resources. Natural caused resources injuries are to damaged petroleum nearby by, natural among other hazardous substances and pollutants, petroleum distillates and aluminosilicate material (“PCB”) contamination. containing polychlorinated biphenyl These PCBs are toxic in the environment and have been linked to lasting adverse human health effects, including on the central nervous system and respiratory tract, blood disorders, and other serious health conditions. Remedial studies conducted at the Contaminated Site demonstrate a nexus between ExxonMobil’s discharges and the contamination present. 5. New Jersey is seeking natural resource damages for the injuries to resources, the groundwater, sediments, wetlands, surface and water, biota ecological (non-human living resources) resulting from ExxonMobil’s discharges of hazardous substances and pollutants. 6. The costs and damages Plaintiffs seek include the damages the State has incurred, and will incur, for any natural resource of this State that has been, or may be, injured as a result of the discharge of hazardous substances and pollutants at the Lail compelling oversight, Property. ExxonMobil or to fund Further, to the perform, Plaintiffs under Department’s 3 seek the an order Department’s performance of, any GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 4 of 40 Trans ID: LCV2019412164 further assessment and restoration and replacement of any natural resource that has been, or may be, injured as a result of the discharge of hazardous substances and pollutants at the Lail Property, and to compensate the citizens of New Jersey for the lost use or value of any such injured natural resource. THE PARTIES 7. The Department is a principal department within the Executive Branch of the State government, and under the leadership of the Commissioner, it is vested with the authority to conserve natural resources, protect the environment, prevent pollution, and protect the public health and safety. N.J.S.A. 13:1D-9; N.J.S.A. 58:10-23.11b; N.J.S.A. 58:10A-3. of 8. In addition, the State is the trustee, for the benefit its citizens, jurisdiction. protect this of all natural resources within its The Department is vested with the authority to public trust and to seek compensation injury to the natural resources of this State. for any N.J.S.A. 58:10- 23.11a. 9. Plaintiff Administrator is the chief executive officer of the New Jersey Spill Compensation Fund (“the Spill Fund”). N.J.S.A. 58:10-23.11j. As chief executive officer of the Spill Fund, plaintiff Administrator is authorized to approve and pay any cleanup and removal costs the Department incurs, N.J.S.A. 4 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 5 of 40 Trans ID: LCV2019412164 58:10-23.11f.c and d, and to certify the amount of any claim to be paid from the Spill Fund. N.J.S.A. 58:10-23.11j.d. 10. Defendant ExxonMobil is a corporation organized and existing under the laws of the State of New Jersey, with its main place of business located at 5959 Las Colinas Boulevard, Irving, Texas 75039-2298. 11. In 1999, Mobil Corporation merged with Exxon Corporation to form its successor, Defendant ExxonMobil. AFFECTED NATURAL RESOURCES 12. PCB contamination has been found in the surface water, groundwater, soils, sediments, wetlands, and other ecological resources at the Contaminated Site. Surface Water 13. day Approximately 850 million gallons of surface water per supplies nearly half of New Jersey's population with drinking water. 14. Surface water in New Jersey is also used for other commercial and industrial purposes, such as cooling water and electrical generation, boating, fishing, and transportation of goods and services. 15. The tourism and recreation industries, which are vital to the economy of this State, are dependent on clean waters and beaches. 5 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 6 of 40 Trans ID: LCV2019412164 16. Surface waters also provide commercial, recreational, aesthetic and ecological value, including support to aquatic communities, to the citizens of the State. 17. The Lail Property is located in a tidal area of the Delaware Estuary and is directly connected to the tidally- influenced Mantua Creek that flows into the Delaware River, two surface waters of the State. enters an embayment Tidal flow from the Mantua Creek through an approximately 100-foot-wide at Property channel. 18. Contamination discharged the Lail has migrated off the Lail Property through this tidal action as well as ground and surface water flow, causing adverse impacts to the surface water resources at the Contaminated Site. 19. example, PCB levels in the Delaware Estuary surface waters, for remain orders of magnitude above the water quality criteria. Groundwater 20. Groundwater is an extremely important natural resource for the people of New Jersey, supplying more than 900 million gallons of water per day, which contributes more than half of New Jersey's drinking water. 21. water, it ecosystem. Not only does groundwater serve as a source of potable also serves Groundwater as an integral provides 6 base part of the State's flow to streams and GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 7 of 40 Trans ID: LCV2019412164 influences surface water quality, wetland ecology, and the health of the aquatic ecosystem. 22. movement, Groundwater prevents also provides saltwater cycling intrusion, and nutrient provides ground stabilization, prevents sinkholes, and provides maintenance of critical water levels in freshwater wetlands. 23. State are Groundwater unique and the resources other that natural support resources the State's of the tourism industry, which helps sustain the State's economy. 24. To the extent that groundwater sampling has been conducted at the Contaminated Site, results have shown PCBs at levels that exceed water quality criteria. Sediments 25. New Jersey’s land and aquatic resources are also comprised of unique and complex ecosystems. 26. Sediments are a critical example of New Jersey ecological resources. 27. Sediments can sustain a wide diversity of plants and animals that are essential in a healthy food chain. Sediments, particularly in New Jersey’s coastal areas, including riverine coastal environments such as those present at the Contaminated Site, are a part of the State’s ecosystems that provide a living substrate for submerged and emergent 7 flora and that support GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 8 of 40 Trans ID: LCV2019412164 diverse invertebrate species, wading birds, and fish and shellfish populations. 28. at PCB levels in sediment at the Contaminated Site remain levels exceeding risk criteria. See Arcadis U.S., Inc., Biological Monitoring Technical Memorandum – Year 5 and Overall Summary, (Dec. Former 2017) presence Lail (“2017 of PCBs Property Arcadis at Gloucester Report”) levels County, New (evidencing exceeding risk Jersey continued criteria in sediments). Wetlands 29. Wetlands are a critical example of New Jersey’s ecological resources, which include land and aquatic resources comprised of unique and complex ecosystems. 30. New Jersey has approximately 730,000 acres of freshwater wetlands and 250,000 acres of coastal wetlands. 31. Wetlands can sustain a wide diversity of plants and animals that are essential in a healthy food chain. 32. include Wetlands the perform improvement of many water additional quality, functions, sediment which trapping, groundwater recharge, shoreline protections, and protecting land from flooding and erosion. 33. impacted Prior to discharges at the Lail Property, the tidallyarea at the Contaminated Site, discussed above, supported various forms of wetlands and mudflats and associated 8 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 9 of 40 Trans ID: LCV2019412164 flora and fauna. These natural resources have been and continue to be adversely affected by discharges at the Lail Property. 34. An approximately 16-acre, tidally influenced embayment and several freshwater emergent wetlands surround the immediate Lail Property boundaries. 35. Late successional forest is present at the southwest portion of the Lail Property. 36. Mantua Creek and its associated wetlands and mudflats border the embayment from north to southeast with I-295 forming the northwest border. 37. Sampling conducted after remedial measures performed by ExxonMobil confirm the continued presence of PCBs in these mudflats and wetlands at levels exceeding risk based criteria. See 2017 Arcadis Report. Biota 38. New Jersey’s ecosystems — forests, lakes, rivers, wetlands, agricultural lands, coastal estuaries, pinelands, and grasslands — are among the most complex and diverse in the nation. 39. New Jersey is home to more than 2,000 plant species, which include entire communities of rare flora that cannot be found anywhere else in the world. Approximately 15 percent of the native plant species in New Jersey, however, are now at risk of extinction, with a total of 331 vascular plant species listed 9 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 10 of 40 Trans ID: LCV2019412164 as endangered and an additional 32 that have already been approximately 900 extirpated. 40. New Jersey wildlife includes species, including 90 mammal species, 79 reptile and amphibian species, more than species of birds. 400 fish species, and approximately 325 Approximately 1.5 million shorebirds and as many as 80,000 raptors make migratory stopovers here each year. 41. At least 17 percent of New Jersey’s native vertebrate species and 24 percent of its native invertebrate species are at risk of extinction. Several threatened and endangered raptor species have difficulty breeding because of the bioaccumulation of toxic compounds. 42. New Jersey’s biodiversity provides a wealth of ecological, social, and economic goods and services that are an integral part of the ecological infrastructure for all cultural and economic activity in the State. 43. New Jersey’s ecosystems, however, are vulnerable to pollution, degradation, and destruction from the discharge of hazardous substances and pollutants. Contamination from the discharge of hazardous substances and pollutants is one of the major causes of biodiversity loss. 44. negatively Natural impact resource not only injuries the 10 to biota individual in New species Jersey directly GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 11 of 40 Trans ID: LCV2019412164 involved, but the capacity of the injured ecosystems to regenerate and sustain such life into the future. 45. Natural vegetative communities for the area at and around the Contaminated Site include emergent wetlands, forested deciduous wetlands, moist deciduous woods, and deciduous woods. 46. previously Four distinct and to terrestrial some extent habitats currently identified existing at as the Contaminated Site include the following: a rock berm in the western embayment, which provides significant cover for small mammals; successional herbaceous habitats of the southwest embayment and southern embayment, which have varying degrees of dense herbaceous cover, standing water and inundated areas lacking cover, and limited mature forest borders as covers; and limited late successional forest with dense cover in the eastern embayment. 47. caused Contamination adverse discharged impacts to biota, at the such as Lail Property fish and has mammals described above, and PCBs remain at the Contaminated Site at levels exceeding risk criteria. See Arcadis Report (evidencing continued presence of PCBs at levels exceeding risk criteria in fish and mammals). PCB CONTAMINATION 48. PCBs manufactured are and man-made widely used organic chemicals extensively 11 in that industrial were and GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 12 of 40 Trans ID: LCV2019412164 commercial applications, including electrical equipment such as capacitors, transformers and switches; plasticizers in paints, plastics, and rubber products; and hydraulic fluids. also be created as a by-product in certain PCBs may manufacturing processes such as dye and pigment production. 49. The manufacture of PCBs was banned in 1979 as a result of extensive scientific evidence finding that PCBs are extremely toxic and build up in the environment, causing harmful effects to humans, animals and the environment. However, PCB use continued in existing applications. 50. PCBs have been shown to cause cancer in both humans and animals that are exposed to the chemical along with a suite of adverse health effects including compromise of the nervous, immune and Protection human reproductive Agency carcinogen (“EPA”) and also systems. has The U.S. identified PCBs that PCBs have Environmental as a possible non-cancer health effects. 51. PCBs are widespread in the environment, and are persistent in soils and sediments, but are also found in the air and water. Sources and pathways of PCBs include both point sources and non-point sources, such as contaminated soils and contaminated sediment. Sources of PCBs in surface water are frequently sediments containing PCBs that were deposited decades ago yet persist due to the contaminants’ properties. 12 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 13 of 40 Trans ID: LCV2019412164 52. PCBs build up in fish exposed to the contaminant. 53. PCBs that enter the food chain tend to absorb into and collect in fatty tissue of humans and take an extended amount of time before leaving the body. 54. Due to elevated concentrations of PCBs in the tissues of fish caught in the Delaware River Basin, the State of New Jersey has issued fish consumption advisories for this region. 55. In the 1990s, New Jersey listed the Delaware Estuary as “impaired” in accordance with Section 303(d) of the Federal Clean Water Act (“CWA”), because PCB contamination in fish tissue impaired the Estuary’s designated use: fishable waters. In accordance responsibility with for the CWA, establishing states and total the maximum EPA shared daily loads (“TMDLs”) for each pollutant contributing to impairment. A TMDL is defined as the maximum amount of a pollutant that can be assimilated by a water body without causing the applicable water quality criterion to be exceeded. TMDLs for PCBs for the Delaware Estuary — from Trenton to the mouth of the Delaware Bay — were established jointly by EPA Regions II and III on December 15, 2003. A TMDL for the Delaware Bay was established by EPA Regions II and III on December 14, 2006. 56. PCB levels in the Delaware Estuary surface waters remain orders of magnitude above the water quality criteria, and 13 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 14 of 40 Trans ID: LCV2019412164 consumption advisories in effect recommend little or no consumption of many species of Estuary fish due to PCBs. GENERAL ALLEGATIONS 57. The Lail Property consists of approximately 12.46 acres of real property located at Cohawken and Berkeley Road, Paulsboro, Gloucester designated as Block County. 403 Lot This 1.04 includes on the Tax 12.26 Map acres of East Greenwich Township and 0.2 acres designated as Block 106.03 Lot 2.01 on the Tax Map of Paulsboro. The Contaminated Site includes, collectively, the Lail Property as well as a 16-acre embayment and wetland and all other areas where any hazardous substance become and pollutant located, which discharged plaintiff at DEP the has Lail Property designated as has Site Remediation Program Interest No. G000006032. 58. From 1999 through the present, ExxonMobil has owned the Lail Property. Mobil Corporation acquired the property from Thomas Lail, who owned the Property from 1979 to 1998. Prior to that, Joseph Applebaum owned the Property, beginning in 1951. 59. In the late 1950s, Mobil Corporation used the Lail Property for the dumping of drums containing petroleum products. During this time, “hazardous substances,” as defined in N.J.S.A. 58:10-23.11b, were "discharged" at and from the Lail Property within the meaning of N.J.S.A. 58:10-23.11b. 14 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 15 of 40 Trans ID: LCV2019412164 60. Investigations began in 1982 when disposed drums were discovered on the adjacent B&B Chemicals Property. In 1986, additional drums were discovered on the Lail Property. These drums were not labeled and contained various forms of petroleum distillates. 61. Inspections reveal that an aluminosilicate material containing PCB contamination has been found in the groundwater, soils, wetlands, sediments, surface water, and other ecological resources at the Contaminated Site. 62. thick in The aluminosilicate material was piled up to nine feet some contaminated areas. material Tens that of thousands had presented of cubic years of yards risks of and damage to human health and the environment was removed from the embayment, wetlands, and adjacent uplands during the implementation of the interim remedial measure (“IRM”) that is described in paragraph 68 below. Additional material contaminated with aluminosilicate remains in all of the areas despite those remedial steps. 63. Remedial Contaminated studies Site and activities demonstrate a nexus conducted between at the ExxonMobil’s discharges and the contamination present. 64. Despite ExxonMobil’s unique position to know the true toxic nature of the PCBs and other materials it discarded into the environment at the Lail Property, 15 as well as increased GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 16 of 40 Trans ID: LCV2019412164 public awareness and understanding of the dangers associated with PCBs, ExxonMobil took no steps to remedy the conditions at the Contaminated Site until it was required to do so under DEP oversight. 65. On December 9, 1993, ExxonMobil entered into a Memorandum of Agreement (“MOA”) with the State of New Jersey and Mr. Thomas Lail to remove the drums and associated contaminated soil from the Contaminated Site. 66. The drums were removed by 1995, but PCB contamination remains in the groundwater, surface water, sediments, and soil in the embayment, wetlands, and upland areas despite interim remedial measures undertaken in the late 2000s. 67. October Pursuant 4, to 2005, an Administrative ExxonMobil has Consent begun to Order address dated the contamination of PCBs at the Site, focusing on the embayment, wetlands, and upland areas. 2005. This MOA terminated in April of Extensive groundwater, soil, wetlands, surface water and sediment contamination remains. 68. An contractor, IRM was Arcadis performed U.S., Inc. by ExxonMobil’s (“Arcadis”), as environmental part of site remediation measures at the Contaminated Site in 2008 and 2009 to address the primary source of the PCB-containing aluminosilicate material that had been discharged by ExxonMobil. The IRM was designed to minimize the ongoing risks posed by the 16 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 17 of 40 Trans ID: LCV2019412164 discharges of hazardous substances and pollutants at the Contaminated Site. 69. Following IRM implementation, in 2010, an environmental risk assessment (“ERA”) was performed to evaluate potential additional and ongoing risks to ecological receptors based on the PCB-impacted soil and sediment remaining in place. 70. The ERA performed for ExxonMobil concluded that the IRM eliminated the primary and ongoing source of Lail Propertyrelated PCBs (specifically the aluminosilicate material deposited in soil and sediment at the Lail Property) and that remaining PCB exposure risks to ecological receptors are below the risk-based thresholds employed by the DEP’s Site Remediation Program. 71. Thereafter, the Department requested additional monitoring of aquatic and terrestrial biota to determine whether tissue concentrations in small mammals and fish are declining. 72. While the IRM and certain remedial measures limited ongoing exposure to remaining natural resources present on or near the Contaminated Site as of the time the IRM was performed in 2008 and restoration 2009, no measures natural resource designed to damage address assessment the or legacy contamination and ongoing exposure have been conducted at the Contaminated Site. 17 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 18 of 40 Trans ID: LCV2019412164 73. The extent of damages to natural resources prior to the IRM and continuing thereafter has not been evaluated and ExxonMobil has not performed any primary or compensatory restoration therefor. 74. In addition, with extremely limited exception, ExxonMobil has not characterized or evaluated the impact of PCBs and other constituents it discharged at the Lail Property, which have migrated by way of surface and groundwater influences. The impacts to Mantua Creek and the Delaware River continue given the persistence of PCBs in soils and sediments there that have migrated from the Lail Property. 75. In the 2017 Arcadis Report, Biological Monitoring Technical Memorandum—Year 5 and Overall Summary, submitted to the Department by ExxonMobil’s environmental contractor Arcadis, Arcadis reported certain results of sampling required under the Site Remediation Program. These results demonstrated that 23 of 30 small mammal PCB sampling analyses performed detected PCBs in the tissue of those mammals collected. 76. The 2017 Arcadis Report also found that PCBs detected in all locations where soil samples were taken. were While a number of these samples reflected levels lower than those present prior to the IRM, PCB contamination remains throughout the Contaminated Site. 18 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 19 of 40 Trans ID: LCV2019412164 77. In addition, the 2017 Arcadis Report presence of PCBs in the fish tissue sampled. found the While they were in some instances at levels somewhat lower than those found prior to the IRM, they remain above risk-based levels, and no change to the fish consumption advisory related to PCBs in this area can be expected. 78. PCBs also remain in the sediments at the Contaminated Site, often reflecting only minor change from levels present prior to the IRM activities. 79. Despite the remaining contamination not addressed by the IRM and the insufficient delineation of the contamination that spread off of the Lail Property, in 2010, ExxonMobil proposed that no additional remedial measures be taken at the Contaminated Site. FIRST COUNT Spill Compensation and Control Act 80. through Plaintiffs 79 above repeat as though each fully allegation set of forth in Paragraphs its 1 entirety herein. 81. ExxonMobil is a "person" within the meaning of N.J.S.A. 58:10-23.11b. 82. and will The Department and the Administrator have incurred, continue to incur, cleanup and removal costs and damages, including lost use or value and reasonable assessment 19 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 20 of 40 Trans ID: LCV2019412164 costs, for any natural resource of this State that has been, or may be, injured by the discharges at the Lail Property. 83. The Administrator costs and damages have incurred, the and Department will incur, and the for the Contaminated Site are "cleanup and removal costs" within the meaning of N.J.S.A. 58:10-23.11b. 84. ExxonMobil, as the discharger of hazardous substances at and from the Lail Property, is liable, without regard to fault, for all cleanup and removal costs and damages, including lost use or value and reasonable assessment costs, the Department and Administrator have incurred, and will incur, to assess, mitigate, restore, and replace any natural resource of this State that has been, or may be, injured by the discharges of hazardous substances at the Lail Property. N.J.S.A. 58:10- 23.11g.c(1). 85. ExxonMobil, as the owner of the Lail Property at the time hazardous substances were discharged there, is responsible for the discharged hazardous substances, and is liable, without regard to fault, for all cleanup and removal costs and damages, including lost use or value and reasonable assessment costs, the Department and the Administrator have incurred, and will incur, to assess, mitigate, restore, and replace any natural resource of this State that has been, 20 or may be, injured by the GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 21 of 40 Trans ID: LCV2019412164 discharges of hazardous substances at the Lail Property. N.J.S.A. 58:10-23.11g.c(1). 86. Pursuant to N.J.S.A. 58:10-23.11u.a.(1)(a) and N.J.S.A. 58:10-23.11u.b., the Department may bring an action in the Superior 23.11u.b(1); Court for for its injunctive unreimbursed relief, N.J.S.A. investigation, 58:10- cleanup and removal costs, including the reasonable costs of preparing and successfully litigating the action, N.J.S.A. 58:10-23.11u.b(2); natural resource restoration 58:10-23.11u.b(4); damages the and for Department and any incurs replacement other under costs, unreimbursed the Spill N.J.S.A. costs Act, or N.J.S.A. 58:10-23.11u.b(5). 87. Pursuant to N.J.S.A. 58:10-23.11g, the Administrator is authorized to bring an action in the Superior Court for any unreimbursed costs or damages paid from the Spill Fund. PRAYER FOR RELIEF WHEREFORE, the Department and the Administrator request that this Court: a. Order ExxonMobil Administrator, cleanup and to reimburse without removal regard costs the to and Department fault, damages and for all that the Department and Administrator have incurred, including lost use or value and reasonable assessment costs, for any natural resource of 21 this State injured by the GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 22 of 40 Trans ID: LCV2019412164 discharges of hazardous substances at the Lail Property, with applicable interest; b. Enter declaratory judgment against ExxonMobil, without regard to fault, for all cleanup and removal costs and damages the Department and Administrator will incur, including lost use or value and reasonable assessment costs, for any natural resource of this State injured by the discharges of hazardous substances at the Lail Property; c. Enter declaratory judgment against ExxonMobil, without regard to fault, compelling it to perform any further remediation and restoration of the Contaminated Site in conformance with the Site Remediation Reform Act, N.J.S.A. 58:10C-1 to -29, and all other applicable laws and regulations; d. Enter judgment against ExxonMobil compelling it to perform, under the Department’s oversight, or to fund the Department’s performance of, any further remediation, restoration, and replacement of natural resources injured at of the Contaminated Site, and the assessment of any natural resource that has been or may be, substances injured at the by the Lail discharge Property, of and hazardous compelling ExxonMobil to compensate the citizens of New Jersey 22 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 23 of 40 Trans ID: LCV2019412164 for the lost use or value of any injured natural resource; e. Award the Department and Administrator their costs and fees in this action; and f. Award the Department and Administrator such other relief as this Court deems appropriate. SECOND COUNT Water Pollution Control Act 88. through Plaintiffs 87 above as repeat each though fully allegation set forth of in Paragraphs its 1 entirety herein. 89. ExxonMobil is a “person” within the meaning of N.J.S.A. 58:10A-3. 90. Except as otherwise exempted pursuant to N.J.S.A. 58:10A-6d. and p., which are not applicable here, it is unlawful for any person to discharge any pollutant except to the extent the discharge conforms with a valid New Jersey Pollutant Discharge Elimination System permit issued by the Commissioner pursuant to the WPCA, or pursuant to a valid National Pollutant Discharge Elimination System permit issued pursuant to the federal Water Pollution Control Act, 33 U.S.C.A. §§ 1251 to 1387. N.J.S.A. 58:10A-6a. 23 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 24 of 40 Trans ID: LCV2019412164 91. The unauthorized discharge of pollutants is a violation of the WPCA for which any person who is the discharger is strictly liable, without regard to fault. N.J.S.A. 58:10A-6a. 92. The Department has incurred, or may incur, costs as a result of the discharge of pollutants at the Lail Property. 93. The Department has also incurred, and will continue to incur, costs and damages, including compensatory damages and any other actual damages for any natural resource of this State that has been, or may be, lost or destroyed as a result of the discharge of pollutants at the Lail Property. 94. The cost and damages the Department has incurred, and will incur, for the Contaminated Site are recoverable within the meaning of N.J.S.A. 58:10A-10c(2)-(4). 95. which ExxonMobil discharged pollutants at the Lail Property, discharges 58:10A-6a., nor were neither exempted permitted pursuant to pursuant N.J.S.A. to N.J.S.A. 58:10A-6d. or N.J.S.A. 58:10A-6p., and is liable, without regard to fault, for all costs and damages, including compensatory damages and any other actual damages for any natural resource of this State that has been, or may be, injured, lost or destroyed as a result of the discharge of pollutants at the Lail Property. N.J.S.A. 58:10A-6af. 96. The Commissioner, pursuant to N.J.S.A 58:10A-10c., has authority to bring this action for: 1) injunctive relief; 2) the 24 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 25 of 40 Trans ID: LCV2019412164 reasonable costs of any investigation, inspection, or monitoring survey that led to the establishment of the violation, including the costs reasonable of preparing cost incurred Administrator adverse in and by the removing, effects upon litigating the Department, correcting, water or quality case; 3) any Commissioner and terminating the resulting from any unauthorized discharge of pollutants for which action under this section may be brought; 4) compensatory damages and any other actual damages for any natural resource of this State that has been, or may be, lost or destroyed as a result of the unauthorized discharge of pollutants; and 5) the actual amount of any economic benefits accruing to the violator from any violation, including savings realized from avoided capital or noncapital costs resulting from the violation, the return it has or that may be earned on the amount of avoided costs, any benefits accruing as a result of a competitive market advantage enjoyed by reason of the resulting from the violation. violation, or any other benefit N.J.S.A. 58:10A-10c(5). PRAYER FOR RELIEF WHEREFORE, the Commissioner of the Department prays that this Court: a. Permanently enjoin ExxonMobil, by requiring it to remove, correct, or terminate the adverse effects upon 25 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 26 of 40 Trans ID: LCV2019412164 water quality resulting from any unauthorized discharge of pollutants at the Lail Property; b. Enter an order assessing against ExxonMobil, without regard to fault, investigation, leading to the reasonable inspection, the or costs for monitoring establishment of the any survey violation, including the costs of preparing and litigating the case; c. Enter declaratory judgment against ExxonMobil, without regard to fault, assessing all reasonable costs that will be incurred for any investigation, inspection, or monitoring survey leading violation, including the to establishment costs of of the preparing and litigating the case; d. Enter an order assessing against ExxonMobil, without regard to removing, effects fault, all reasonable correcting, upon unauthorized water or terminating quality discharge of costs incurred the resulting pollutants at for adverse from the any Lail Property; e. Enter declaratory judgment against ExxonMobil, without regard to fault, assessing all reasonable costs that will be terminating incurred the for adverse 26 removing, effects upon correcting, water or quality GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 27 of 40 Trans ID: LCV2019412164 resulting from any unauthorized discharge of pollutants at the Lail Property; f. Enter an order assessing against ExxonMobil, without regard to fault, all compensatory damages and other actual damages incurred for any natural resource of the State that has been, or may be, injured, lost, or destroyed as a result of the unauthorized discharge of pollutants at the Lail Property; g. Enter declaratory judgment against ExxonMobil, without regard to fault, assessing all compensatory damages and other actual damages for any natural resource of this State that will be lost or destroyed as a result of the unauthorized discharge of pollutants at the Lail Property; h. Enter an order assessing against ExxonMobil, without regard to fault, the actual amount of any economic benefits it has accrued, including any savings realized from avoided capital or noncapital costs, the return it has earned of the amount of avoided costs, and benefits ExxonMobil has enjoyed as a result of a competitive market advantage, or any other benefit it has received as a result of having violated the WPCA; i. Enter declaratory judgment against ExxonMobil, without regard to fault, assessing the actual amount of any 27 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 28 of 40 Trans ID: LCV2019412164 economic savings benefits to noncapital be it will realized costs, the accrue, from return including avoided to be any capital earned or on the amount of avoided costs, and benefits that will accrue as a result of a competitive market advantage it has enjoyed, or any other benefit that will accrue to it as a result of having violated the WPCA; j. Award the Commissioner her costs and fees in this action; and k. Award the Commissioner such other relief as the Court deems appropriate. THIRD COUNT Public Nuisance 97. through Plaintiffs 96 above as repeat each though fully allegation set of forth in Paragraphs its 1 entirety herein. 98. Groundwater, surface water, sediment, wetlands, and biota are natural resources of the State held in trust by the State. 99. The use, enjoyment, and existence of uncontaminated natural resources is a right common to the general public. 100. The contamination of the groundwater, surface water, sediment, constitutes wetlands, a and physical biota invasion 28 at of the the Contaminated property and Site an GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 29 of 40 Trans ID: LCV2019412164 unreasonable and substantial interference, both actual and potential, with the exercise of the public's common right to these natural resources. 101. As long as the groundwater, surface water, sediment, wetlands, and biota at the Contaminated Site remain contaminated due to the ExxonMobil’s conduct, the public nuisance continues. 102. Until wetlands and the groundwater, biota are surface restored to water, their sediments, pre-discharge conditions, ExxonMobil is liable for the creation, and continued maintenance, of a public nuisance in contravention of the public's common right to uncontaminated natural resources. PRAYER FOR RELIEF WHEREFORE, the Department and the Administrator request that this Court: a. Order ExxonMobil Administrator, to reimburse without regard the to Department fault, for and all cleanup and removal costs and damages, lost use or value and Department natural reasonable and assessment Administrator resource of this costs that the have incurred for any State injured by the discharges of hazardous substances and pollutants at the Lail Property, with applicable interest; b. Enter declaratory judgment against ExxonMobil, for all cleanup and removal costs and damages, including lost 29 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 30 of 40 Trans ID: LCV2019412164 use or value Department natural and and reasonable assessment Administrator resource of this will State costs, the incur for any injured by the discharges of hazardous substances and pollutants at the Lail Property; c. Enter declaratory judgment against ExxonMobil, compelling it to perform any further remediation and restoration of the natural resources injured at the Contaminated Site in conformance with the Site Remediation Reform Act, N.J.S.A. 58:10C-1 to -29, and all other applicable laws and regulations; d. Enter judgment compelling ExxonMobil to perform, under the Department’s oversight, or by funding the Department’s performing of any further assessment and compensatory restoration of any natural resource injured by the discharge of hazardous substances and pollutants at the Lail Property; e. Award the Department and Administrator their costs and fees in this action; and f. Award the Department and Administrator relief as this Court deems appropriate. 30 such other GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 31 of 40 Trans ID: LCV2019412164 FOURTH COUNT Trespass 103. Plaintiffs repeat each allegation of Paragraphs 1 through 102 as if fully set forth in their entirety herein. 104. Groundwater, surface water, sediment, wetlands, and biota are natural resources of the State held in trust by the State for the benefit of the public. 105. The hazardous substances and pollutants in the groundwater, surface water, sediment, wetlands, and biota at the Contaminated Site constitute a physical invasion of public property without permission or license. 106. ExxonMobil is liable for trespass, and continued trespass, because the hazardous substances and pollutants in the groundwater, surface water, sediment, wetlands, and biota at the Contaminated Site resulted from discharges of hazardous substances and pollutants at the Lail Property. 107. As long as the resources at the Contaminated Site remain contaminated due to ExxonMobil’s conduct, the trespass continues. 108. Until discharge the quality, resources ExxonMobil are is restored liable continued trespass, upon public property. 31 for to their trespass, preand GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 32 of 40 Trans ID: LCV2019412164 PRAYER FOR RELIEF WHEREFORE, the Department and the Administrator request that this Court: a. Order ExxonMobil Administrator, cleanup and to reimburse without removal regard costs the to and Department fault, damages and for all that the Department and Administrator have incurred, including the lost use or value, and reasonable assessment costs for any natural resource of this State injured by the discharge of hazardous substances and pollutants at the Lail Property, with applicable interest; b. Enter declaratory judgment against ExxonMobil, without regard to fault, for all cleanup and removal costs and damages that the Department and Administrator will incur, including the lost use or value, and reasonable assessment costs for any natural resource of this State injured by the discharge of hazardous substances and pollutants at the Lail Property; c. Enter declaratory judgment against ExxonMobil, without regard to fault, compelling it to perform any further remediation, restoration, and replacement of natural resources conformance injured with at the 32 the Site Contaminated Remediation Site Reform in Act, GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 33 of 40 Trans ID: LCV2019412164 N.J.S.A. 58:10C-1 to -29, and all other applicable laws and regulations; d. Enter judgment against ExxonMobil, without regard to fault, compelling it to perform, under the Department’s oversight, or to fund the Department’s performance of, any further assessment and restoration of any natural resource that has been, or may be, injured as a result of the discharge of hazardous substances and pollutants at the Lail Property, and compelling ExxonMobil to compensate the citizens of New Jersey for the lost use or value of any injured natural resource; e. Award the Department and Administrator their costs and fees in this action; and f. Award the Department and Administrator such other relief as this Court deems appropriate. FIFTH COUNT Strict Liability 109. Plaintiffs repeat each allegation of Paragraphs 1 through 108 above as though fully set forth in its entirety herein. 110. During the period of time that ExxonMobil and its predecessors were engaged in dumping drums containing petroleum products, hazardous substances were 33 stored at and discharged GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 34 of 40 Trans ID: LCV2019412164 from the Lail Property into numerous natural resources of the State, including, but not limited to surface waters, groundwater and wetlands, thereby causing damage to and destruction of natural resources. 111. By storing and discharging hazardous substances at the Lail Property and into the State’s natural resources in such manner as to cause said damage and destruction, ExxonMobil engaged in an abnormally dangerous activity for which it is strictly liable. PRAYER FOR RELIEF WHEREFORE, the Department and the Administrator request that this Court: a. Order ExxonMobil Administrator, to reimburse without regard the to Department fault, for and all cleanup and removal costs and damages, including loss of use or value and reasonable assessment costs, that the Plaintiffs have incurred for any natural resource of this State injured by the discharges of hazardous substances and pollutants at the Lail Property, with applicable interest; b. Enter declaratory judgment against ExxonMobil, without regard to fault, for all cleanup and removal costs and damages, including loss of use or value and reasonable assessment costs, the Department and the Administrator 34 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 35 of 40 Trans ID: LCV2019412164 will incur for any natural resource of this State injured by the discharges of hazardous substances and pollutants at the Lail Property; c. Enter judgment against ExxonMobil, without regard to fault, compelling it to compensate the citizens of New Jersey for the damages to, or loss of, their natural resources as a result of the discharges of hazardous substances and performing under funding pollutants the the Lail Property, Department’s oversight, performance of, Department’s assessment, at restoration, and any replacement or by by further of any natural resource injured by the discharge of hazardous substances and pollutants at the Lail Property; d. Award the Department and the Administrator their costs and fees in this action; and e. Award the Department and the Administrator such other relief as this Court deems appropriate. SIXTH COUNT Tortious Interference 112. Plaintiffs repeat each allegation of Paragraphs 1 through 111 above as though fully set forth in its entirety herein. 35 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 36 of 40 Trans ID: LCV2019412164 113. Groundwater, surface water, sediment, wetlands, and biota are natural resources of the State held in trust by the State. 114. The State maintains a fiduciary duty to protect these trust resources and is vested with the authority to do so. 115. ExxonMobil has intentionally, and without justification, discharged hazardous substances and pollutants at the Lail Property. 116. ExxonMobil’s discharges of contaminants at the Lail Property have caused injuries to natural resources of the State that Plaintiffs have a duty to protect. 117. The contamination of the groundwater, surface water, sediment, wetlands, and biota at the Contaminated Site constitutes a physical invasion of the public trust and thereby an unreasonable and substantial interference with the same. This invasion of the public trust is to the extent that it has caused an unreasonable and substantial interference with the State’s ability to fulfill its duty as trustee to protect the natural resources of the State. 118. As long as the groundwater, surface water, sediment, wetlands, and biota at the Contaminated Site remain contaminated due to the ExxonMobil’s conduct, these interferences continues. 119. Until wetlands and the biota groundwater, are surface restored 36 to water, their sediments, pre-discharge GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 37 of 40 Trans ID: LCV2019412164 conditions, ExxonMobil is liable for the creation, and continued maintenance, of an interference with the public trust and an interference with the State’s ability to protect trust resources in contravention of the common law. PRAYER FOR RELIEF WHEREFORE, the Department and the Administrator request that this Court: a. Order ExxonMobil Administrator, to reimburse without regard the to Department fault, and for all cleanup and removal costs and damages, lost use or value and Department natural reasonable and assessment Administrator resource of this costs that the have incurred for any State injured by the discharges of hazardous substances and pollutants at the Lail Property, with applicable interest; b. Enter declaratory judgment against ExxonMobil, without regard to fault, for all cleanup and removal costs and damages, including lost use or value and reasonable assessment will incur costs, for the any Department natural and resource Administrator of this State injured by the discharges of hazardous substances and pollutants at the Lail Property; c. Enter declaratory judgment against ExxonMobil, without regard to fault, compelling it to perform any further 37 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 38 of 40 Trans ID: LCV2019412164 remediation, restoration, and replacement of any natural resource injured at the Contaminated Site in conformance N.J.S.A. with 58:10C-1 the to Site -29, Remediation and all Reform other Act, applicable laws and regulations; d. Enter judgment compelling ExxonMobil to perform, under the Department’s Department’s oversight, performing of any or by further funding the assessment, restoration, and replacement of any natural resource injured by the discharge of hazardous substances and pollutants at the Lail Property; e. Award the Department and Administrator their costs and fees in this action; and f. Award the Department and Administrator such other relief as this Court deems appropriate. Gurbir S. Grewal ATTORNEY GENERAL OF NEW JERSEY Richard J. Hughes Justice Complex 25 Market Street, PO Box 093 Trenton, NJ 08625-0093 By: /s/ Richard F. Engel______________ Richard F. Engel, Deputy Attorney General Allan Kanner, Esq. KANNER & WHITELEY, L.L.C. 701 Camp Street New Orleans, LA 70130 Special Counsel to the Attorney General By: /s/ Allan Kanner__________________ 38 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 39 of 40 Trans ID: LCV2019412164 Allan Kanner, Esq. ATTORNEYS FOR PLAINTIFFS Dated: March 7, 2019. DEMAND FOR TRIAL BY JURY Plaintiffs hereby demand a trial by jury on all issues so triable. DESIGNATION OF TRIAL COUNSEL Pursuant to R. 4:25-4, the Court is advised that Allan Kanner, Special Counsel to the Attorney General, is hereby designated as trial counsel for Plaintiffs in this action. CERTIFICATION REGARDING OTHER PROCEEDINGS AND PARTIES Undersigned counsel hereby certifies, in accordance with R. 4:5-1(b)(2), that the matters in controversy in this action are not the subject of any other pending or contemplated action in any court or arbitration proceeding known to Plaintiffs at this time, nor is any non-party known to Plaintiffs at this time who should be joined in this action pursuant to R. 4:28, or who is subject to joinder pursuant to R. 4:29-1. non-party later becomes known to If, however, any such Plaintiffs, an amended certification shall be filed and served on all other parties and with this Court in accordance with R. 4:5-1(b)(2). Gurbir Grewal ATTORNEY GENERAL OF NEW JERSEY Richard J. Hughes Justice Complex 25 Market Street, PO Box 093 Trenton, NJ 08625-0093 39 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 40 of 40 Trans ID: LCV2019412164 By: /s/ Richard F. Engel______________ Richard F. Engel, Deputy Attorney General Allan Kanner, Esq. KANNER & WHITELEY, L.L.C. 701 Camp Street New Orleans, LA 70130 Special Counsel to the Attorney General By: /s/ Allan Kanner__________________ Allan Kanner, Esq. ATTORNEYS FOR PLAINTIFFS Dated: March 7, 2019. 40 GLO-L-000297-19 03/07/2019 9:15:51 AM Pg 1 of 1 Trans ID: LCV2019412164 Civil Case Information Statement Case Details: GLOUCESTER Civil Part Docket# L-000297-19 Case Caption: ATTORNEY GENERAL VS EXXON MOBIL Case Type: ENVIRONMENTAL/ENVIRONMENTAL COVERAGE CORPORAT ION LITIGATION Case Initiation Date: 03/07/2019 Document Type: Complaint with Jury Demand Attorney Name: ALLAN KANNER Jury Demand: YES - 6 JURORS Firm Name: KANNER & WHITELEY, LLC Hurricane Sandy related? NO Address: 701 CAMP ST Is this a professional malpractice case? NO NEW ORLEANS LA 70130 Related cases pending: NO Phone: If yes, list docket numbers: Name of Party: PLAINTIFF : Attorney General Do you anticipate adding any parties (arising out of same Name of Defendant’s Primary Insurance Company transaction or occurrence)? NO (if known): Unknown THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION Do parties have a current, past, or recurrent relationship? YES If yes, is that relationship: Other(explain) Regulatory Agency Does the statute governing this case provide for payment of fees by the losing party? YES Use this space to alert the court to any special case characteristics that may warrant individual management or accelerated disposition: Do you or your client need any disability accommodations? NO If yes, please identify the requested accommodation: Will an interpreter be needed? NO If yes, for what language: I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(b) 03/07/2019 Dated /s/ ALLAN KANNER Signed