Bill to Create a Crime of Exposure to Toxic Pollutants
Thursday, December 03, 2009

M E M O R A N D U M

TO: Members of the Assembly Judiciary Committee

FROM: Christina M. Genovese, Director, Government Relations

RE: A-2951 (Moriarty/Love)

DATE: December 3, 2009

The Chamber of Commerce Southern New Jersey would like to express our concerns with A-2951 (Moriarty/Love), which would create a crime of exposure to toxic pollutants.

We understand this bill was introduced as a result of the tragedy surrounding Kiddie Kollege in Gloucester County. The Chamber supports the sponsors' interest in making clearer the liability of those who intentionally expose our children to toxic substances. However, as detailed below, this bill as currently written, including the proposed amendments, remains extraordinarily broad in nature. As a result, the bill has the potential to criminalize the actions of those who do not intend to cause harm to others and where their conduct is recognized as permissible under other laws.

The Chamber’s primary concern is that it is not necessary to make it a new crime to “unlawfully cause” exposure to a toxic pollutant if that person’s conduct is already “unlawful”. They can simply be prosecuted under the law that makes their conduct unlawful in the first place. For example, the Chamber believes if you “knowingly” discharge or release a chemical that is deemed unlawful, regardless of whether anyone is exposed to it, it is already a crime under various statues that make it unlawful to discharge or release hazardous substances in quantities that are harmful to human health and the environment. Having a separate crime for “causing exposure” is redundant and confusing to the regulated community and because of the bill’s ambiguity could render activity unlawful that is otherwise permissible.

Additionally, if a pollutant was mistakenly or accidentally released, it could be considered “unlawful” by this bill as currently written, seeing that the bill does not define the terms “recklessly” or "purposely or knowingly. Although we appreciate the sponsors attempt to carve out a de minimis exception in the last sentence of Section 1 of the bill, we believe the standard for obtaining this exemption is difficult, if not impossible to prove.

The Chamber respectfully urges the sponsors of this bill to more carefully focus on the legislation’s primary objective to make it easier to prosecute cases where an individual has recklessly exposed people to toxic pollutants and caused harm to the exposed person where the conduct of the person is unlawful in the first place, but to do so with language that is more precise and more clearly will not criminalize those without intent to cause harm or any actual harm and where other laws and regualtions recognize that their behavior is permissible.

Thank you for the opportunity to share our comments with you on A-2951 (Moriarty/Love).