Murphy DEP In Retreat In Response To Withering Community Criticism Of BASF Toms River Superfund Deal

DEP Extends Public Comment Period

DEP Will Meet With Community To Attempt To Sell Bad Deal

Toms River Cancer Cluster Toxic Site As Bad Or Worse Than Notorious Love Canal Site

“… shoulder-to-shoulder with a good corporate citizen determined to repair the environmental damage of our shared industrial past. My sincere thanks to BASF and every partner that contributed to this success for the people of New Jersey.” ~~~ DEP Commissioner LaTourette (Statement reported by WOBM (12/8/22)

In a late Friday afternoon bad news dump (via a 5:16 pm email) the Murphy DEP officially responded to withering public criticism – especially from the Toms River community – of the DEP’s sweetheart settlement deal with corporate chemical giant BASF at the notorious former Ciba Geigy Superfund site.

DEP extended the public comment period until April 5, 2023.

In a classic case of putting the cart before the horse (an obvious post hoc rationalization), DEP now will hold a “public engagement session” meeting with the Toms River community on March 13 to attempt to sell the sweetheart deal.

Notably, DEP Commissioner LaTourette is no longer the public spokesperson for the deal. He’s been benched in favor of Deputy Commissioner Moriarity, who will now take the blame:

“We hope that this extension of the comment period and opportunity for direct engagement with DEP officials will provide members of the public with additional opportunities to learn more about the assessment and proposed restoration of injured natural resources, and to ask questions about the proposed settlement,” said DEP Deputy Commissioner Sean D. Moriarty. 

Moriarity hopes? Fat chance of that. DEP will surely get “engagement”, but there is little to no chance of community support.

DEP and LaTourette have lost the trust of the Toms River community and their credibility was destroyed by a series of egregious abuses of power.

At the outset, DEP blinded sided the community by announcing the deal in a December 5 press release before any consultation with the community.

In the initial public relations assault, in a Statement, LaTourette praised BASF.

In response to initial criticism, DEP gaslighted and lied the community by falsely claiming that a recent ballot measure to Constitutionally dedicate settlement money to ecological restoration to benefit the impacted community was intended to discourage financial compensation cash settlements. (Politico 12/28/22 story:

Hajna said the department now “generally seeks to restore or replace injured resources in the area of the site that caused the injury.” In 2017, voters approved the amendment that directed NRD money to be spent “in the immediate area” around where the pollution happened. This was meant to put an end to unrelated spending sprees using NRD money.

In an NJ Spotlight TV interview responding to withering criticism, LaTourette then flat out lied about the legal aspects of the settlement. In fact, DEP issued a legal “release” and “covenant not to sue” to BASF. For details that document this unprofessional and unforgivable lie, see: “Make no mistake….”).

Pouring gasoline on the fire, we then exposed the fact that LaTourette had conducted an unprecedented December 2  secret meeting with friendly environmental groups to use them in a public relations campaign to support, spin, and sell the deal.

Substantively, we also documented the fact that DEP had not conducted a “baseline ecological assessment” – or any other assessment – to scientifically document and then quantify the ecological and economic damages to natural resources BEFORE negotiating the settlement, and thus were flying blind.

Without a science based NRD ecological damage assessment and economic valuation analysis, DEP had no basis to secure full compensation and the public had no way to know if the deal was in the public interest.

NJ Courts have struck down several prior DEP NRD deals for exactly these failures, a legal vulnerability that also led to the notorious Christie DEP pennies on the dollar settlement with Exxon ($225 million on an $8.9 BILLION NRD lawsuit claim).

LaTourette, a former corporate lawyer, himself exploited exactly these legal flaws when he won a lawsuit against DEP as a private corporate lawyer when he represented Essex Chemical (a subsidiary of corporate chemical giant Dow) in the 2012 Court decision, see:

• NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION v. ESSEX CHEMICAL CORPORATION

Ironically, we exposed LaTourette’s prior involvement as a corporate lawyer in this DEP defeat way back in 2012, long before he was Gov. Murphy’s “Erin Brokovich” choice for DEP Commissioner. Given his prior corporate lawyer role, LaTourette should never have been involved in NRD cases, see this October 3, 2012 Report:

• New Jersey Fumbling Away Pollution Damages

Trenton — The State of New Jersey is forfeiting hundreds of millions of dollars in damages from polluters in contaminated groundwater cases, according to Public Employees for Environmental Responsibility (PEER), which has asked for a review of the program by the state Comptroller.   The state’s failure to adopt regulations governing how to calculate “natural resources damages” (NRD) for polluted drinking water has contributed to its inability sustain assessments against polluters.

The state’s most recent setback occurred in the case of New Jersey Department of Environmental Protection, et al. v. Essex Chemical Corporation in which the Appellate Division chastised DEP for failure to make a cogent claim for millions of gallons of groundwater contaminated during 8 years of leaking underground storage tanks.  This latest rebuke follows earlier decisions striking down DEP recovery attempts due to not establishing, by regulation, a reliable formula for calculating natural resources damages.  In the absence of regulation, courts have found DEP lacked adequate scientific support to proceed on a case-by-case basis, as in the Essex Chemical case.

There are numerous other reason to oppose this deal, which we outlined in this post:

• Ten Good Reasons Why The Murphy DEP’s BASF Toms River Superfund Site NRD Deal Is A Corporate Giveaway That Must Be Withdrawn

The Toms River community was the longtime victim of corporate crime. The Ciba Geigy Superfund site caused an horrific childhood cancer cluster, which was documented by a NJ Department of Health study.

Read the NJ DoH Report:

“The study found that prenatal exposure to two environmental factors in the past were associated with increased risk of leukemia in female children. These exposures were: 1) access to drinking water from the Parkway well field after the time that the well field was most likely to be contaminated, and 2) air pollutant emissions from the Ciba-Geigy chemical manufacturing plant.”

Arguably, the Toms River Ciba Geigy Superfund site is as bad or worse than the infamous Love Canal site.

Read the New York State Department of Health’s followup health assessment of that site. NY DoH did find slightly elevated cancer rates. But they did NOT find a cancer cluster like the NJ DoH found in Toms River.

DEP owed this community respect and sensitivity.

Instead, DEP and LaTourette abused them, showed gross insensitivity, cut deals behind their back, lied about it, and used corrupt friendly environmental groups to sell the dirty deal.

All this is unforgivable.

The proposed settlement is seriously flawed substantively and must be withdrawn.

The upcoming “community engagement session” is nothing more than more of the same gaslighting and manipulation.

Any DEP “ecological assessments” are nothing more than a post hoc rationalization of a bad decision

DEP must openly apologize to the community and start all over in a respectful, open, transparent, science based, and cooperative process that reflects the preferences of and fully compensates the community and holds corporate polluters accountable.