Murphy DEP Sues Ford For Unspecified Billions of Dollars Of Toxic Damage To Natural Resources At Ringwood Mines Superfund Site
DEP Fails To Quantify Economic Harms
Continuing Lack of DEP NRD Regulations Makes Lawsuit Vulnerable To Legal Challenge
DEP Spins Environmental Justice Angle, But Does Nothing To Strengthen Flawed EPA Cleanup Plan, Take Enforcement Action Or Seek Criminal Prosecution
Thanks to the longtime investigative journalism of retired old school reporter Jan Barry, the Bergen Record has done a good job of exposing what I have called the “monstrous crime” Ford Motor Company committed in Ringwood NJ that poisoned the lands and people of the Ramapough Lenape Nation.
As I noted, those crimes warrant criminal prosecution, not an administrative slap on the wrist by DEP. Almost a deacade ago, I wrote:
An understanding of the reprehensible and egregious behaviors Ford engaged in fuels some of the anger at EPA for letting Ford off the hook for cleanup costs, when they should be criminally prosecuted. …
[But] no one from Ford went to prison for this scheme.
I’m getting ahead of myself, but even DEP’s recent lawsuit at least gets the rhetoric – if not the criminal law – right: “reckless, wanton, willful disregard” to describe Ford’s crimes: (from DEP lawsuit)
While corporations for a long time have had effective immunity from criminal prosecution, today we’re in a new media environment, where corporate crimes are soft pedaled even rhetorically.
Yesterday, based on the typically spun and self serving June 16, 2022 DEP press release – not any independent investigative journalism – the current reporter at the Record reported on the most recent development in this toxic nightmare.
Here’ how Ford’s monstrous crimes are now described – mere “mismanagement and questionable decisions”: (Northjersey.com)
New Jersey filed a lawsuit against Ford Motor Co. on Thursday seeking millions of dollars in damages for widespread pollution dumped more than 50 years ago in Upper Ringwood next to a neighborhood that has been home to generations of Native Americans.
It is the latest action taken at a Superfund site with a troubled history of mismanagement and questionable decisions.
Note that the “millions of dollars” the Record reported is not specified and has no basis in the DEP press release and the lawsuit document itself. Nowhere is there any specific claim for any dollar value of damage Ford caused.
Where did the Record reporter get that fact? Where did DEP document and quantify “millions of dollars in damages”?
That’s not a minor oversight or minor omission – it goes to the core of the legal viability and vulnerability of the DEP’s lawsuit. More on that below, a topic I’ve written about (i.e. those DEP failures) for over a decade. I’ve repeatedly exposed the DEP regulatory failures that led to the Christie Administration’s corrupt Exxon NRD lawsuit settlement, for just pennies on the dollar of an $8.9 billion claim, see:
These DEP failures have gone uncorrected, despite a judicially approved settlement agreement by DEP pledging to do so.
NJ Courts have chastised DEP for these failures and rejected DEP NRD lawsuits based on them.
The DEP still has not adopted NRD regulations to provide a methodology or to quantify economic damages to natural resources that provide the factual basis of the lawsuits.
The DEP lawsuits remain legally vulnerable due to that failure to adopt NRD regulations.
As a result, the DEP NRD lawsuits remain legally vulnerable and therefore will either be rejected by NJ Courts or settled for pennies on the dollar by DEP.
Current DEP Commissioner LaTourette surely knows this, because previously, as a private corporate lawyer, he successfully defended a corporate polluter from DEP’s attempt to collect natural resource damages for toxic pollution of groundwater and drinking water, thereby establishing a damaging legal precedent that contributed to the Christie DEP’s Exxon settlement debacle. For a full exposure of the misrepresentation of LaTourette’s corporate background, see:
Here’s how the longtime malfeasance and misfeasance of the DEP and EPA are now presented by the Record:
“Sometimes it’s not possible to put things back exactly as they were, but we always push in cases like this to get it as close as possible as we can,” state Department of Environmental Protection Commissioner Shawn LaTourette said at a news conference near the site in Ringwood.
What?
The phrase “put things back exactly as they were” is an outrageous distortion of the EPA approved “cleanup” plan, which leaves unknown millions of tons of toxic chemicals in the soil, old mineshafts, and groundwater, see:
The EPA approved a “cleanup plan” that even EPA admitted saved Ford over $30 million and will continue to poison the community, groundwater, streams, and wildlife and threaten the Wanaque Reservoir for decades.
The Record story on DEP’s press event noted the threats to drinking water that result from EPA and DEP regulatory failures:
Another plan by the EPA to pump compounds underground to treat contaminated water at the site also faced considerable backlash.
Among the critics was the North Jersey District Water Supply Commission, owner of the nearby Wanaque Reservoir. It pushed for a pump-and-treat system, saying it would provide better protection for drinking water that is supplied to as many as 3.5 million New Jerseyans.
It is simply outrageous that the DEP continues to fail to strengthen the EPA’s cleanup plan by enforcing NJ State cleanup laws – particularly when the chemicals EPA allowed to be left in the ground will continue to threaten a major drinking water reservoir.
At the time of the EPA cleanup plan, the Record editorial page described that EPA plan as a “toxic compromise” (7/5/14 – link dead).
But now, DEP Commissioner LaTourette describes it as putting things back not quite “exactly as they were”.
But in addition to what the DEP failed to do, let’s highlight the flaws in the DEP lawsuit (read the document):
1) DEP Failed To Quantify NRD Damages – Settlement For Pennies On The Dollar Likely
I’ve written about this numerous times (see this), so won’t repeat all that here.
But if you read the lawsuit, you will note that DEP repeatedly claims unspecified “natural resource injuries” and fails to quantify those injuries, technically or economically. DEP fails to specify the dollar amount of compensation they are seeking or to quantify the amount of compensatory restoration they are seeking.
These are fatal legal errors that provide huge leverage to Ford to negotiate a pennies on the dollar settlement.
2) DEP Ignores Damages and Threats To Wanaque Reservoir
As noted above, the North Jersey District Water Supply Commission objected to the EPA cleanup plan for failure to protect the reservoir.
Yet, the DEP lawsuit does not include as damages the actual impacts to the reservoir from Ford dumping or the future risks from the chemicals that Ford dumped to the Reservoir.
This omission is effectively a coverup.
3) DEP Misleadingly Spun NJ Environmental Justice Law, Which Exempts Toxic Site Cleanups
DEP falsely implies that the NJ environmental justice law and Gov. Murphy’s Executive Order on EJ legally apply to this cleanup. This is false. DEP does so prominently, right up front in paragraph #9:
9. Pursuant to N.J.S.A. 13:1D-157, enacted in 2020, the New Jersey Legislature declared that “historically, New Jersey’s low-income communities and communities of color have been subject to a disproportionately high number of environmental and public health stressors…” The Legislature went on to define an “overburdened community” as a census block group in which […]
The community living within Ringwood Mines is an “overburdened community” within the meaning of N.J.S.A. 13:1D-158 because at least 40% of the residents identify as minority or as members of a State recognized tribal community. This community is entitled to fair and equitable treatment in matters affecting their environment, community, homes, and health. See, e.g., Exec. Order No. 23 (April 20, 2018), 50 N.J.R. 1241(b) (May 21, 2018).
First of all, that “legislative declaration” cited in paragraph #9 of the complaint is belied by the black letter law, or text of the actual statute, which explicitly exempts toxic site cleanups from the law.
Because DEP lies so blatantly, here is the text of that exemption from the law: See Section 2, definition of “permit” – this is version signed into law):
except that “permit” shall not include any authorization or approval necessary to perform a remediation, as defined pursuant to section 23 of P.L.1993, c.139 (C.58:10B-1)
Second, an Executive Order does not have the binding force and effect of law. Shame on the DEP and AG for implying that it does. They KNOW that it does not.
That language is pure rhetoric worthy of a press release, but certainly not a legal complaint. Ford knows that as well. So does a Judge.
Only the NJ media and people of NJ are duped by that rhetoric.
4) DEP Is Seeking $2 Billion In Civil Penalties, But Failed To Take Enforcement Action For Those Same Violations Of NJ Cleanup And Toxic Waste Laws
DEP is seeking civil penalties for $50,000 per day under the NJ Spill Act (enacted in 1977) and the Solid Waste Management Act (enacted in 1975). That is the highest civil penalty authorized by law.
Ford’s toxic dumping began BEFORE those laws were passed. They’ve been lying ever since:
204. To this day, it remains unknown whether Defendants have disclosed every discharge of hazardous waste at Ringwood Mines to DEP.
DEP did not specify an actual amount of civil penalty they seek. DEP dodges this because it might make their ultimate settlement look really bad.
Or it might prompt the Judge to ask why DEP never imposed administrative enforcement fines for these violations of NJ environmental laws if they were so egregious to justify billions in civil fines.
So we will provide an estimate (do the math): at $100,000 per day since the 1977 passage of Spill Act (about 45 years), DEP is seeking over $1.64 BILLION in civil penalties (and that’s before any economic damages to natural resources).
The DEP does not have to file a lawsuit and ask a Judge or a Jury to issue civil (administrative) penalties for violations of NJ environmental laws. DEP can simply unilaterally issue enforcement documents. Of course, Ford would challenge them and appeal to a court, but the legal burdens would be on Ford and DEP would have very different and more favorable legal grounds. But DEP never did this. Why?
How can DEP, with a straight face, ask a Judge or Jury to impose the maximum $50,000 per day fine, for a period of 45 years, when DEP never did so administratively? That’s just not credible.
5) DEP obtained private law firms to represent them
DEP is represented by private legal counsel – maybe hired guns will do better than the AG’s lawyers have so far.
I just filed this OPRA to try to follow the money – I wonder what their legal fees are and take of the recovery?
“On June 16, 2022, NJ DEP filed a lawsuit against Ford Motor Co. to recover Natural Resource Damages at the Ringwood Superfund site. According to the Case Information Statement, Plaintiff DEP is legally represented by private counsel, specifically including:
1) Locks Law Firm, Roseland NJ
2) The Lanier Law Firm, P.C., Houston Texas
3) Hausfeld, LLP, Philadelphia Pa.
I request the following public documents:
1) contracts, retainer agreements, and/or legal Service agreements between the Plaintiffs (DEP and AG’s Office) and the above 3 private law firms regarding the subject lawsuit, including any documents that govern the subject litigation, including legal fees, allocation of recovered monies, and roles and responsibilities for conducting the subject litigation.
2) correspondence between the above 3 private law firms and DEP Commissioner LaTourette regarding the subject litigation, from January 1, 2020 and today.”
We’ll report back as soon as DEP responds to the OPRA.
6) DEP Provided Anonymity For The Ford Corporate Executives Who Executed And Benefited From This Illegal Scheme
On top of failure to impose DEP enforcement fines and failure to seek criminal prosecution, DEP failed to name names.
Instead, they rely on a “John And Jane Doe” “fictitious names” mask. Why do corporate executives get anonymity but alleged perpetrators of low level street crimes get front page photos?
DEP once bragged that they had embarked on an “enforcement crackdown” for illegal dumping in State Parks – they made 16 arrests and even deported some poor little guys for dumping garbage.
But, major corporate toxic polluters like Ford get a pass.
And that’s about all you really need to know.
I’m predicting a settlement, maybe 10 years from now, for less than a nickel on the dollar.
But, the public will never be provided a total natural resource damage amount DEP is seeking to recover, so the public will never be able to understand how little of the real damage DEP actually recovered in compensation from the corporate criminals at Ford.