DEP Cuts Deal With Sunoco Refinery

DEP Issues Press Release 3 Months After Agreement Reached in October

Sunoco Coastal Eagle Refinery (West Deptford, NJ)

[Update: 1/26/11: surprisingly, veteran reporter Tom Johnson and the Sultan of the Soundbite Jeff Tittel both got smoked. See Tom’s NJ Spotlight story: Upper Raritan River Comes Back to Life

Here’s my comment on it:

The issue – and the story here – is not whether removing dams is good for fish and water quality.

If that were the case, then the Dupont NRD deal to plant trees and preserve land would have been given “rare praise” as well (instead of correctly condemned by Tittel and others as a “sweetheart deal”).

The real issues are: 1) whether the public was adequately compensated by an oil company for hundreds of toxic spills and leaks over decades at a billion dollar profit producing refinery – and 2) whether the natural resources damaged by those toxic pollution discharges along the Delaware River have been restored.

The answer to both questions is a resounding NO.

And just like Pompton Lakes Dupont deal, the people of West Deptford who suffered the harms got screwed entirely. -“` end update

DEP issued a press release late today announcing a Natural Resource Damage (NRD) settlement agreement involving pollution from the Sunoco Coastal Eagle refinery in West Deptford (and 3 affiliated company facilities: EPEC Polymers Inc in Flemington; Nuodex Inc. in Woodbridge; EPEC Polymers Inc. in Burlington City).

There have been hundreds of spills and discharges at the Coastal Eagle refinery over many years, leading to significant soil and groundwater pollution, off site contamination, and adverse water resource, fisheries, wildlife and ecological impacts.

The deal is unusual and raises all sorts of red flags.

First is timing: the NRD Settlement was published over 3 months ago in the NJ Register, on October 18, 2010.

The opportunity for public comment expired in November – there was little public awareness and no public comment on the deal.

So why is DEP issuing a press release now, after the public comment period is closed? Why didn’t DEP issue the release 3 months ago, when it mattered and the public could have used the information and meaningfully participated?

The timing also suggests DEP is responding to last week’s bad press on air quality rules for refineries that have come under attack. The coverage of that story created the impression that Governor Christie’s “regulatory relief” policies were seriously flawed.

Today’s DEP release puts out some good news on refineries, and creates the opposite appearance – let’s just agree to call it news management.

Last, on the merits, the deal is totally arbitrary. This repeats a longstanding problem, as the NRD program has lacked transparent and enforceable standards.

In May 2009, we wrote to Governor Corzine to warn about this problem:

Dear Governor Corzine:

We are writing concerning the need for standards to assess and restore adverse ecological impacts resulting from the discharge of hazardous substances to the environment at more than 20,000 sites in New Jersey. Individually and cumulatively, these sites represent a major threat to sensitive ecosystems and natural resources, as well as public health. It is imperative that those impacts and ecological impairments be assessed, restored, and the public fully compensated for lost uses of important fish, wildlife and other natural resources resulting from the discharge of hazardous chemicals to the environment.

The need for these standards has become even more pressing, in light of the recent law enacted to establish a privatized Licensed Site Professional (LSP) program. (P.L. 2009, c.60.)  [find the full letter here]

The Sunoco deal is highly unusual and seriously departs from almost all prior settlements.

It lacks what the lawyers refer to as a “causal nexus” between the original pollution that caused the natural resource injury, and the restoration or compensation for that damage. [Clarification: there is $156,655 for a Delaware estuary study.]

That was a major controversial issue recently in the Dupont NRD deal, where Pompton Lakes residents got no benefits, despite suffering years of Dupont pollution.

New Jersey courts and the business community have opposed such unprincipled and unbridled discretion to coerce NRD settlements, especially in the absence of promulgated DEP rules. Rules would provide up front guidelines, criteria, standards, and procedures for estimating the value of natural resources damaged and the parameters of settlement in the form of money compensation or restoration of equivalent natural resource functional values.

Ironically, the Christie DEP Transition Report demanded more transparency and rollback in the NRD program:

Transfer all responsibility for NRD assessment restoration and recovery to Site Remediation.

Adopt regulations regarding NRD assessment, restoration and recovery that are transparent, stable and predictable.

The Sunoco refinery deal provides for the removal of 3 small dams on the Raritan River. While I support dam removal, what does that have to do with toxic soil and water pollution along the Delaware?

There is simply no nexus between pollution at a refinery on the Delaware river and dam removal on the Raritan river.

Both the timing and the terms of the “Lets make a deal” nature of this NRD settlement are troubling.