Murphy DEP Finally Re-Opens Corrupt Dupont Pompton Lakes Natural Resource Damage Settlement

Posted on March 27, 2019 by Bill Wolfe

Persistent Local Activists Get Credit For Victory

DEP admits flawed original 2005 NRD settlement 

NJ NRD PROGRAM STILL SUFFERS LEGAL VULNERABILITIES

  • Today, 31 years after the original 1988 State ACO was signed, the Facility and surrounding natural resources remain heavily contaminated. The full nature and extent of the contamination, and the injuries caused by that contamination, remain unknown. ~~~ NJ DEP NRD lawsuit against Dupont (3/27/19)

“Bill Wolfe of the Public Employees for Environmental Responsibility’s New Jersey chapter agreed. “DuPont got a sweetheart deal and DEP didn’t do their homework,” Wolfe said. “The deal must be renegotiated and DuPont forced to pay fair compensation, especially to Pompton Lakes residents who have suffered for decades.”

After decades of getting screwed by Dupont, EPA and NJ DEP, the residents of Pompton Lakes finally won a battle in their war with Dupont.

Today, the Murphy DEP and AG announced a new NRD lawsuit against Dupont (I’ll omit a link to the over the top AG/DEP press release).

The victory was the result of the hard work and persistent activism of a small group of residents, led by former Councilpersons Lisa Riggiola and Ed Meakem. They organized and fought for years. And with no help from their own local government (for a sense of Dupont’s power over the local hacks, consider the fact that Ed and Lisa got unelected after just 1 term).

The Natural Resource Damage issue at Dupont Pompton Lakes goes back decades.

I’m proud to say that I did a lot of the technical background work on this issue.

In fact, I brought the NRD issue to the attention of the US Fish and Wildlife Service, who knew nothing about it until I told them. US FWS was under the false impression that EPA and DEP were issuing minor wetlands and dredging permits regarding the lake dredge – they were unaware of the NRD issues. That was because EPA failed to comply with RCRA regulations that mandate consultation with USFWS as part of the lake dredge corrective action permit modification.

Most recently, just over a year ago, on March 16, 2018, I gave DEP Commissioner McCabe a “to do” list.

I reiterated that “to do list” back on May 17, 2018, I wrote:

If the Governor and McCabe are listening, as I wrote and the residents of Pompton Lakes have written McCabe to request, here is a path forward: [1.-4.]

5. DEP must reopen the partial Natural Resource Damage settlement with Dupont negotiated by former DEP Commissioner Brad Campbell. That sweetheart deal was corrupt, provided no benefits to Pompton Lakes, and actually allowed Dupont to donate contaminated land (see Bergen Record story: Dupont deal gave state more tainted soil (12/6/10)

“Bill Wolfe of the Public Employees for Environmental Responsibility’s New Jersey chapter agreed. “DuPont got a sweetheart deal and DEP didn’t do their homework,” Wolfe said. “The deal must be renegotiated and DuPont forced to pay fair compensation, especially to Pompton Lakes residents who have suffered for decades.”

But even now, DEP never admits that they screwed up. DEP never admits that the narrow scope of the original 2005 NRD settlement was limited to groundwater and that DEP failed to do due diligence and allowed Dupont to donate what DEP should have known was contaminated lands.

While I praise this action by McCabe, I must call out some continuing problems with DEP’s NRD program and some lies in the Dupont lawsuit claim.

First of all, DEP has still not resolved serious legal and technical vulnerabilities in their NRD program identified by NJ Courts, including failure to promulgate NRD regulations that, among other things, define and quantify NRD damages. We warned DEP and policymakers about this, see:

DEP’s failure to heed that 2007 warning led directly to the debacle in the Exxon case.

A March 23, 2003, letter from deputy attorney general Richard Engel to Picco said the DEP “has long planned to promulgate regulations to improve the current Natural Resource Damage program” and “is currently developing its regulatory proposals, and plans to file one or more rule proposals prior to Aug. 1, 2005.”

The “forthcoming rules clearly will afford the NJ SEED plaintiffs an administrative forum, subject to judicial review, in which to present policy and legal arguments presented in or related to the pending litigation,” Engel said in the letter.  ~~~~ Some Say NJ Had Little Choice but to Settle With Exxon,  (NJ Law Journal) (4/2/15)

Reflecting those vulnerabilities, the DEP Dupont NRD lawsuit – in contrast to the $8.9 billion damage assessment DEP laid on the table in the infamous Exxon case – seeks unspecified money damages and seeks relief for vague compensation and restoration requirements, which are subject to negotiation.

Dupont could be liable for $10 or $10 million. We don’t know.

Accordingly, the latest round of NRD lawsuits are vulnerable to legal challenge by the polluters.

In terms of lies, DEP makes this claim in paragraph 109, which is false:

Under federal law, the State lacked authority to issue the provisions of the permit that pertained to the Hazardous and Solid Waste Amendments of 1984 (“HSWA”), because only the federal U.S. Environmental Protection Agency (“EPA”) may issue such permit provisions.

This is simply not true and DEP knows it. (I go into great deal about the RCRA HSWA delegation issue in this post).

US EPA can delegate the RCRA HSWA program provisions to States.

Here is EPA’s State Authorization program:

State authorization is a rulemaking process that EPA delegates the primary responsibility of implementing the RCRA hazardous waste program to individual states in lieu of EPA.

Currently, 50 states and territories have been granted authority to implement the base, or initial, program. Many are also authorized to implement additional parts of the RCRA program that EPA has since promulgated, such as corrective action and the land disposal restrictions. State RCRA programs must be at least as stringent as the federal requirements, but states can adopt more stringent requirements as well.

NJ never sought delegation of HSWA from EPA. DEP Commissioner McCabe surely knows this.

NJ DEP managers didn’t want the program. DEP wanted “flexibility” to cut dirty deals with polluters under their State ACO based “voluntary cleanup” program (which has since been privatized).

RCRA HSWA was perceived as too regulatory and would subject DEP cleanup program to EPA oversight.

Finally, we note that DEP seeks compensation and restoration for trespass and public nuisance violations.

But we must note that DEP recently lost court cases on these very grounds.

While NJ AG Grewal is issuing over the top press releases about “dropping the hammer” on polluters, he and DEP just lost a MAJOR NRD case that will seriously reduce DEP’s ability to collect $ NRD damages.see:

So, the prior legal vulnerabilities resulting from lack of DEP regulations have been compounded by court decisions rejecting DEP trespass and nuisance claims.

Oops!

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