Murphy DEP Commissioner Urged To Withdraw Sweetheart Settlement With BASF At Toms River Ciba Geigy Superfund Site

Time To Heal The Wounds, Not Rub Salt In Them

Time To Hold Corporate Polluters Accountable, Not Cut Dirty Deals With Them

Clearly, in good conscience, you must withdraw the draft settlement and go back to square one. This deal clearly is not in the public interest and it clearly fails to recover even a fraction of the NR injuries to hold corporate polluters accountable.

As expected – but much slower than it should be due to corrupt environmental group support – as the facts come to light and penetrate DEP spin and lies, strong public opposition and media coverage of the Murphy DEP’s sweetheart deal with corporate chemical giant BASF are beginning to emerge.

(Hometown Toms River was blindsided by the DEP deal and is strongly opposed.)

Politco has a killer story today, which will spark additional outrage, read the whole thing (subscription):

• DEP looks for trust in Toms River Superfund deal, but it’s hard to come by

Politico reports the DEP’s failure to properly conduct a NRD economic valuation, a fatal failure I’ve emphasized.

Unfortunately, the Politico story did not mention the DEP failure to adopt NRD regulations (hit this link and see letter below for background on that, including Court cases), or the failure of Senator Smith’s NRD Legislative Task Force. Once again, we called it, see:

• Big Corporate Polluters Quietly Veto Natural Resource Damage Compensation Standards

To try to cover their asses for signing off on a really bad deal, DEP is now flat out lying.

DEP is actually claiming that the Constitutional Amendment approved by the voters – which was clearly intended to stop Governors and Legislators from diverting NRD settlement money to the General Fund – was intended to discourage DEP recovery of economic damages.

(DEP’s Hajna must really think we’re stupid – DEP/AG just settled a paltry $9.5 million NRD deal with ExxonMobil – and they used a hired gun private law firm who was paid an undisclosed portion of that money to do so).

That is a flat out lie and Tittel called them on it:

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.

So DEP’s current interpretation might enrage environmental groups that supported the amendment.

Jeff Tittel, a longtime environmental activist, said the constitutional amendment was to keep officials from siphoning off settlement money for the general fund, not to justify no-cash deals. For instance, much of the Exxon settlement and much of a separate $355 million settlement for damage to the Passaic River ended up going to balance state budgets, not back to the environment.

“That is outrageous that the administration would be trying to hide behind an amendment that was designed to stop the administration from stealing NRD money for other purposes than the environment to balance the budget and other things — when they sold out the people of New Jersey with this deal,” Tittel said in an interview.

(we wrote about that Constitutional Amendment, see:

• Conservationists Duped The Public On DEP Natural Resource Damage Program

I’ve been holding off writing my own analysis of this dirty deal until my OPRA public document requests are finished.

But I did send Commissioner LaTourette a letter to demand he withdraw this dirty deal. I sent it to several NJ reporters and a few trusted friends, but it looks like Politico was the only outlet so far to write the story.

That story will get legs, I’m sure. Especially after people learn that LaTourette represented a corporate polluter (a Dow Chemical subsidiary) and won a DEP NRD case. See letter to DEP Commissioner LaTourette below. (We broke and was the only one writing about LaTourette and NRD, so Politico obviously got that scoop from us, directly or indirectly. So, it would be nice to get attribution and credit once in awhile.)

The public would be disturbed to know that LaTourette represented a major corporate chemical polluter and won an NRD court case against DEP, yet he has failed to fix the defects the Courts have found to reject DEP NRD lawsuits.

Supporting links to the court cases and documents are found here.

———- Original Message ———-

From: Bill WOLFE <>

To: onrr@dep.nj.gov, shawn.latourette@dep.nj.gov

Cc: senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, kduhon@njleg.org, jonhurdle@gmail.com, tmoran@starledger.com

Date: 12/23/2022 8:17 PM

Subject: BASF NRD draft Settlement – Ciba-Geigy site

Dear Commissioner LaTourette:

Please accept the following initial broad public comment on the subject draft NRD Settlement. I will begin by putting the recommendations cart before the analytical horse.

Based on the deficiencies and flaws in the draft settlement (which I will address in subsequent detailed comments), I strongly urge that the Department take the following steps – and the sooner the better, to stem mounting public animosity and as a remedial good faith measure:

1) withdraw the settlement and publicly acknowledge that mistakes were made;

2) conduct an economic valuation of the natural resource injuries caused by the release and discharge of hazardous substances at the site.

With the support of consultants, the DEP previously conducted such an analysis at the Exxon site (documenting $8.9 billion in damages). The Department issued scientific reports on “natural capital” and “ecosystem services” that can be updated and used as a framework. The DEP previously issued NRD program Guidance for valuation of groundwater injury, based on volume of groundwater impacted and the regional BPU regulated cost of water. For natural resource injuries, the DEP previously relied on Guidance based on the “Baseline Ecological Evaluation” required under DEP Site Remediation regulations.

If the Department and the Attorney General’s Office lack qualified expert staff to conduct a credible analysis, then the Department can hire legal, economic and ecological experts and incorporate the cost of their compensation in the terms of a new settlement agreement.

3) conduct a series of Stakeholder meetings with the people of Toms River and various interested publics regarding the overall objectives for preservation, recreational, and other uses of the site. A qualified professional landscape architecture and planning firm should guide these planning and design deliberations.

But instead of consulting and working with the community, the Department blindsided the Toms River community. This is unforgivable, especially given the deeply troubling and emotionally scarring history of this site.

4) Renegotiate the settlement based on the community’s preservation/reuse plan and the DEP’s economic valuation study.

NJ Courts repeatedly have rejected DEP NRD lawsuits on the grounds that DEP lacked promulgated regulations that provided scientifically valid standards and methodologies for economically valuing NRD damages.

You yourself successfully represented corporate clients and defeated DEP in the following NRD case:

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

The Department and AG’s Office entered into a judicially recognized Settlement that required DEP to promulgate NRD valuation rules, see:

• New Jersey Society of Environmental & Economic Development (SEED) v. Campbell (N.J. Super. Law Div., Mercer County, 2004)

Yet, the Department has failed to adopt NRD valuation regulations.

The Department also – as evidenced by the Department’s recent response to my OPRA public records request – failed to conduct an economic valuation of NRD damages at the Ciba-Geigy site, and therefore has no reliable, scientifically valid, or legally defensible basis for negotiation and recovery of NRD damages.

The prior NJ court NRD precedents – compounded by the Department’s lack of Court mandated NRD regulations and a reliable economic estimate – are legally fatal to successful litigation and obviously are what have forced the Department to settle for such a paltry deal from the world’s largest chemical corporation who earns $100 billion in annul revenue and a huge massively contaminated 1,400 acre contaminated site (with off site contamination).

Clearly, in good conscience, you must withdraw the draft settlement and go back to square one. This deal clearly is not in the public interest and it clearly fails to recover even a fraction of the NR injuries to hold corporate polluters accountable.

Bill Wolfe