DEP Lacks Authority To Enforce Directive Against Toxic PFOA Polluters Dupont, 3M & Dow
Senate Urged To Close Legal Loopholes And Grant DEP Powers To Protect Public Health
AG Grewal’s alleged legal “hammer” is actually a pillow
According to numerous favorable media reports and praise by environmental groups, Murphy DEP Commissioner McCabe and Attorney General Grewal are, in AG Grewal’s words, “dropping the hammer” on corporate polluters. For the typical narrative and spin, see:
One of the more widely reported alleged “hammers dropped” was a March 25, 2019 DEP Spill Act Directive against major corporate toxic polluters Dupont, Dow, and 3M.
The reality is exactly the opposite.
What AG Grewal describes as legal “hammers” are actually pillows.
Unfortunately, while touting their efforts, the Murphy administration (and the media coverage) have failed to distinguish between two fundamentally different legal “hammers” that the AG and DEP have “dropped”, i.e: 1) traditional Natural Resource Damage (NRD) lawsuits versus 2) a novel DEP Spill Act Directive.
I previously have written to explain why DEP’s NRD program is flawed and why DEP has a weak legal hand in NRD lawsuits (see: Bombshell: DEP Bungling Led To Exxon Deal). As a result – unless these flaws are corrected via adoption of new DEP regulations – it is likely that DEP will be forced to continue to settle NRD claims for pennies on the dollar or else NJ Courts will continue to reject DEP NRD claims. (Of course, the Legislature could enact enforceable NRD standards, but there is no evidence of any appetite to do so, as a legislative Taskforce created for exactly that purpose has not issued any recommendations and no bills have been introduced).
So in this post today, I want to focus on the novel DEP Spill Act Directive.
AG Grewal issued a self congratulatory, complex and lengthy press release on March 27, 2019 that contributed to the media’s confusion and misleading conflation of the NRD lawsuits and the DEP Spill Act Directive.
The AG press release stated (emphases mine):
In addition to announcing today’s lawsuits, Attorney General Grewal and Commissioner McCabe noted at today’s press conference that, earlier this week, DEP issued a statewide directive on PFAS against DuPont, Chemours, 3M, Solvay and Dow Chemical — the main users, manufacturers, suppliers, and dischargers of PFAS in New Jersey.
Issued on Monday, the Directive orders these companies to pay for continued testing and treatment of PFAS-contaminated waters at and near the affected sites. It also orders them to pay for the additional treatment of private and public water supply wells, as well as the cleanup and removal of the contamination. Starting in the early 1950s, DuPont acquired a PFAS compound (perfluorooctanoate) from 3M and used it to manufacture its Teflon products. The State alleges that DuPont discharged massive quantities of PFAS-containing waste into water and on-site landfills at the Chambers Works site, and also released PFAS into the air.
The corporate pushback on the DEP’s Directive didn’t take long. On April 17, 2019, Dupont’s lawyers pushed back, and hard.
According to a May 10, 2019 Bloomberg News story:
Chemours Co., 3M Co. and DuPont are taking a stand against what one company called an “unprecedented” New Jersey order, saying they won’t pay for a statewide investigation of fluorinated chemical contamination.
The companies asserted they aren’t responsible for contamination under the state’s Spill Compensation and Control Act, which prohibits hazardous substances and pollutants from being discharged and imposes liability on those who do so.
New Jersey’s Department of Environmental Protection in March ordered DuPont Specialty Products USA LLC, DowDuPont Inc., E.I. du Pont de Nemours & Co., Chemours Co., Solvay Specialty Polymers USA LLC and 3M to tell the state where and when they manufactured, dumped, supplied, or used poly- or perfluoroalkyl substances, known as PFAS.
And it didn’t take long for DEP Commissioner McCabe to fold the tent and cave in to the corporate pushback.
McCabe wasn’t “dropping any hammers”, she was “hoping for a voluntary resolution” and wanted to “work with” the corporate polluters!
Closely following the Bloomberg disclosure of the corporate pushback, 4 days later on May 14, NJ Spotlight reported on the DEP cave:
NEW JERSEY DEP SAYS IT’S WORKING WITH CHEMICAL COMPANIES TO CURB PFAS
[…]
“In response to the directive, we have met with several of the companies and received certain documentation and are hopeful we can continue working with the subject companies to reach a voluntary resolution to address statewide PFAS investigation and remediation without the need for further costly, protracted legal action,” the department said.
Unfortunately, I must note that the corporate lawyers for Dupont, Chemours, Dow and 3M absolutely destroyed the DEP’s Spill Act Directive.
The Dupont legal attack was written by NJ law firm McCarter & English. I will not repeat it here, but strongly urge readers to consider their analysis
It clearly exposes the fact that DEP lacked authority under the NJ Spill Act to issue the Directive and made fundamental scientific and legal errors. Actually, it’s an embarrassment. In my 35 year career, I’ve never seen more incompetent DEP work.
And now, to further complicate the legal and policy issues and illustrate the comic failure of AG Grewal and DEP Commissioner McCabe to work together and get on the same page, the same day the NJ Spotlight story ran (May 14), where McCabe backed down and said she wanted to work with the polluters on a voluntary basis, AG Grewal issued a press release announcing a major new lawsuit against these same polluters for PFOA/PFAS!
I suspect that AG Grewal issued the lawsuit in part because he realized that the DEP Spill Act Directive was not enforceable. That AG ligation raises even more complex and novel legal issues – blending consumer fraud with environmental laws – that we will address in a future post.
Regardless of whether we look at the DEP Spill Act Directive or the AG’s lawsuit, clearly, the legislature will need to respond and enact legislation to address these glaring gaps and loopholes in NJ’s environmental laws exposed by the DEP Directive and Dupont pushback.
Given that the Senate Environment Committee will meet next week on Thursday June 6 to consider, among other things, comprehensive amendments to NJ’s toxic site cleanup laws (see, S3682 – more privatization and weakening of current weak protections, a specific post on the bill forthcoming) I wrote to urge Chairman Bob Smith to amend his bill to address the legal loopholes and flaws exposed by the McCarter & English legal criticism of DEP’s Spill Act Directive.
Because the DEP Directive also addressed issues of fraud, failure to disclose, and knowing withholding material and critically important data on the environmental toxicity and public health risks of chemicals, I’ve also urged Smith to either amend his bill (S3682) or introduce new legislation to make such actions environmental crimes.
Because this post is getting lengthy, I will post that letter to Smith in a subsequent post.