DEP Settlement With BASF In Toms River As Bad Or Worse The Christie Exxon Deal
Chairman Smith Urged To Revive Stalled NRD Standards Initiative
Sierra Club And Audubon Stand By Their Support, Despite Community Opposition
Senator Smith – this DEP proposed BASF settlement provides an excellent opportunity to conduct Legislative oversight of the DEP NRD program and it also provides a very clear example of the need for legislative and/or regulatory standards and methods to document and quantify natural resource injuries.
In the wake of the Christie DEP’s notorious Exxon “natural resource damage” (NRD) settlement – which recovered just 3 pennies on the dollar of an $8.9 BILLION legal claim and prompted widespread condemnation – NJ Senate Environment Committee Chairman Bob Smith created a “Natural Resource Damage Legislative Taskforce”.
Smith’s charge to the Task Force was to develop recommendations to the Legislature to enact science based enforceable standards and reliable methods to measure and quantify natural resource injuries and the economic value of natural resource damages. As NJ Spotlight reported:
The state is seeking ways to shore up how it assesses damages to natural resources when polluters contaminate New Jersey’s waters, wildlife, and land.
By establishing clear and objective standards, the state would have an easier time of prying the money needed to restore drinking-water supplies, habitats, and other natural resources from the companies whose spills and other actions harmed them, environmental advocates say.
To that end, Sen. Bob Smith, the Democratic chairman of the Senate Environment and Energy Committee, said he plans to set up a stakeholder process to try to come up with a workable mechanism that would set such standards.
By law, DEP has the authority and duty to mandate full public compensation and/or restoration of damages to natural resources caused by toxic pollution. The Task Force standards and methods would be used as a basis for laws that would assure that DEP fully recovered NRD damages caused by polluters and to assure that DEP never repeated the Exxon fiasco.
Another problem with the [NRD] lawsuits is the state lacks any objective standards to monetize damages to New Jersey’s natural resources. Sen. Bob Smith, the chairman of the Senate Environment and Energy Committee, set up a legislative task force of industry experts and environmentalists to try and come up with a framework to establish such standards.
At the time, I submitted recommendations to Smith and the Task Force, see:
But Senator Smith’s lame attempt to establish standards for natural resource damages was killed by corporate power, see:
And the DEP still has not adopted NRD regulations – mandated under an 2004 judicially approved settlement – that would define, economically value, and set standards and methods for the NRD program, see:
So, in the wake of another NRD (BASF) settlement that fails to recover full public compensation and natural resource restoration – while failing to consult with the community and toxic victims – I sent this Senator Smith the following letter, urging legislative oversight and a renewed effort to pass a bill to mandate DEP recovery and provide NRD standards and methods:
Dear Senator Smith, Ms. Ramos (Sierra) and Ms. Murphy (Audubon):
On Friday, DEP announced extension of the public comment period and a “community engagement” meeting in Toms River on the subject proposed settlement agreement for natural resource damages (NRD).
The DEP move was made in response to strong public criticism, including passage of a Resolution opposing the settlement by the Toms River local government (and a significant amount of negative media coverage).
In light of these new developments, I am writing to you to request the following:
1) Ms. Ramous and Murphy – NJ Audubon and NJ Sierra Club offered praise and support of the proposed settlement in quotes in the DEP’s December 5, 2022 press release publicly announcing the settlement. Those comments were preceded by an unprecedented secret briefing meeting with DEP, held on December 2, 2022.
Do your organizations still stand by those quotes and do your organizations still support the proposed settlement, in light of local government Resolution and community opposition, as well as additional information that has emerged on the substance of the proposed settlement?
2) Senator Smith – this proposed BASF settlement provides an excellent opportunity to conduct Legislative oversight of the DEP NRD program and it also provides a very clear example of the need for legislative and/or regulatory standards and methods to document and quantify natural resource injuries.
Given that your prior Legislative Task Force on NRD standards failed to reach consensus and legislative reforms have stalled, would you consider legislative oversight hearings to catalyze and renew that effort to develop standards and methods?
3) Commissioner LaTourette and Senator Smith – Additionally, DEP engaged in what amount to, at best, highly inappropriate secret briefing meeting and communications with select environmental groups and used those groups to mislead the public about the merits of the proposed settlement.
Additionally, given Commissioner LaTourette’s prior legal work for a corporate responsible party in an NRD lawsuit with DEP (See the Essex Chemical case), it is, at best, inappropriate for him to be involved in DEP’s NRD policy and settlement negotiations.
These abuses cry out for legislative oversight and procedural reforms.
I urge your prompt and favorable consideration and response – I am writing a followup tomorrow – see today’s piece here:
Bill Wolfe
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