Murphy DEP Is Exaggerating $75 Million Natural Resource Damage Settlement For “Forever Chemicals”

DEP Claims $393 Million A Record Settlement

While Other States Recover BILLIONS For Pollution

No Mention Of Lawsuits With Major Polluters Dupont, Dow, and 3M

[Update: Associated Press (AP) wire story, by Wayne Parry: (ABC News)

“Bill Wolfe, a former environmental department official and longtime critic of the agency, said much of the payments Solvay will make are required under existing environmental department regulations and should not be considered an outcome of litigation.” ~~~ end update]

The Murphy DEP just announced an alleged “historic” proposed legal settlement with Solvay chemicals for cleanup and Natural Resource Damages (NRD) caused by the company’s “forever chemicals”, see:

• Attorney General Platkin and DEP Commissioner LaTourette Announce Proposed Settlement with Solvay Polymers Regarding “Forever Chemical” Pollution in and around West Deptford – Largest Single-site Natural Resource Damages and Remediation Case in New Jersey History

To put the Solvay deal in context, the DEP’s proposed settlement comes at a time when other States are settling “forever chemicals” lawsuits for BILLIONS of dollars, a critical fact I recently noted, see:

• Chemical Industry Attacks Bill To Ban “Forever Chemicals” PFAS

The proposed Solvay deal is very likely the smallest in a group of “forever chemicals” under DEP Directives and lawsuits DEP filed against major corporate polluters Dupont, Dow and 3M. The DEP press release provides no information on the status of litigation with these corporate heavyweights, who are pushing back hard (read the McCarter English law firm’s attack).

I previously expressed skepticism of the legal viability of the consumer fraud aspects of those lawsuits, see:

• DEP Lacks Authority To Enforce Directive Against Toxic PFOA Polluters Dupont, 3M & Dow

So I will note that there was nothing in the Solvay settlement regarding any settlement of allegations of consumer fraud.

The proposed Solvay deal combines several categories of funds, from payments to DEP for administrative costs ($3.8 million), financial assurance for cleanup ($214 million), various studies, installation of drinking water treatment systems, site cleanup ($100 million), and NRD ($75 million).

It is important to note that the financial assurance for cleanup ($214 million) and the site cleanup ($100 million) and the DEP administrative oversight costs ($3.8 million) are already required under existing DEP regulations and as such are not really an outcome based on the litigation, they are routine enforcement and cost recovery items.

Most of the settlement involves compliance with current DEP cleanup regulations that should have been enforced long ago.

Financial assurance for cleanup is a finance tool, it’s not real money – it’s like a performance bond, letter of credit or insurance policy. And none of this money goes to the DEP or the public as compensation.

Also, because DEP did not conduct an analysis of or quantify the actual Natural Resource Damages (NRD) caused by Solvay, it is impossible to know how much of those damages the DEP recovered and whether the deal adequately compensates the public. 

The DEP settled the NRD damages with little or no scientific knowledge of the actual NR damages. This huge mistake is revealed by the text of the settlement itself, which requires that Solvay conduct an ecological assessment that would document NRD injuries, something that should have been done BY DEP (not Solvay) and BEFORE any settlement: (@ page 14):

So, there is no way to know if the $75 million deal is another pennies on the dollar NRD settlement.

Given the fact that other States are settling for BILLIONS of dollars, the DEP’s $393 million appears small, as I predicted:

This is why, among many others, the DEP will very likely settle the NRD aspects in the recent PFAS lawsuit against Solvay  – and the consumer fraud and NRD aspects of the Dupont, Chemours, Exxon-Mobil, and 3M lawsuit – for pennies on the dollar.

Before I get a chance to read and analyze the proposed deal, I must note one glaring example of DEP spin.

DEP claim that the settlement is  the Largest Single-site Natural Resource Damages and Remediation Case in New Jersey History“

That is misleading because it combines what really is financial assurance for the cleanup costs with the NRD damages.

That is a highly misleading practice with respect to NRD.

The proposed settlement explicitly says the NRD is just $75 million: (paragraph #4, page 10)

b. Seventy-Five Million Dollars and Zero Cents ($75,000,000.00) for all claims for Natural Resource Damages

We will be back with a more complete analysis after I get a chance to read the proposed settlement. (see End Notes below for updates)

I just thought it important to get the context out immediately. No doubt, NJ press corps will swallow DEP spin wholesale.

[End Notes:

1) It is baffling that DEP allowed Solvay to conduct the sampling and cleanup under the control of a private consultant, known as an “LSRP”, for Licensed Site Remediation Professional. This is exactly the kind of high risk site and major corporate polluter noncompliance and negligence that should trigger mandatory direct DEP oversight. It is absurd for DEP to continue to privatize the cleanup of a site that DEP had to file a lawsuit to enforce existing cleanup regulatory requirements.

2) This provision is disgraceful – DEP promises to work hard to comment on Solvay’s work, with deadlines!! And notice that there is no PUBLIC COMMENT on Solvay’s work:

34. The Department shall make good faith efforts to provide comments to Solvay’s LSRP on the documents specified in Paragraph 33 or to approve such documents (in accordance with its statutory and regulatory obligations) within 120 days of receipt by the Department.

3. Holy shit! The DEP relieved Solvay of important regulatory requirements and delegated the complete control of the cleanup, including selection of the cleanup plan, to Solvay – and with no public notice and comment period: (@ paragraph #35, page 31)

c. Solvay’s LSRP need not submit a direct oversight remediation summary report ordinarily required by N.J.A.C. 7:26C-14.2(b)(2)(v);

d. Solvay’s LSRP need not submit a feasibility study to the Department for approval as ordinarily required by N.J.S.A. 58:10C-27(c)(2) and N.J.A.C. 7:26C- 14.2(b)(3); and

e. Notwithstanding the provisions of N.J.S.A. 58:10C-27(c)(3), Solvay’s LSRP may select the remedial action to be implemented at the Site.

4. DEP did not require that all documents be made public, be made available to the public, and subject to the Open Public Records Act. Just the opposite: just Solvay and DEP will have control of the documents:

37. Solvay and its LSRP shall provide information and documents related to the Remediation Activities described in this JCO when requested by the Department, which information and/or documents shall be submitted to the Department by the later of (i) 14 days prior to the date of the next quarterly meeting scheduled pursuant to Paragraph 36 or (ii) 28 days after the request for such information and documents is made, unless an extension of time is provided by the Department, which extension shall not be unreasonably withheld.

5. The “deadlines” are riddled with loopholes. There is a 20 day grace period and Solvay is given the opportunity to delay everything and the burden shifts to DEP to explain why an extension is not allowed. Again no public notice or participation is involved:

43. Solvay or its LSRP may request an extension of any of the deadlines required by Paragraph 33 or 37 by submitting to the Department through the Assigned Case Manager a written request no later than 14 days prior to the deadline. The written request must state the deadline for which the extension is being requested, the amount of time beyond the deadline needed to complete the required work, a description of the cause(s) for the extra time needed to complete the work, and the steps taken to minimize the extra time needed to complete the work. ….  Solvay shall not seek to extend a deadline unreasonably, and the Department shall not withhold consent for an extension unreasonably.

6. The deal includes an irresponsible and broad “covenant not to sue” that essentially waives future liability. This is totally irresponsible because there are many unknowns about the extent of contamination and the damages to natural resources. That is made obvious by the agreement itself, which mandates remedial investigation and sampling:

45. Except as provided in Paragraph 46, Plaintiffs—acting in all of their capacities, including in the Department’s capacity as parens patriae, as trustee of the State’s natural resources, as an entity with interests in real property in the State, and in its regulatory capacity—fully and forever release, covenant not to sue, and agree not to otherwise take administrative or civil action against Solvay and its respective current and former corporate officers, directors, employees, agents, predecessors, parents, successors, affiliates, and subsidiaries, for any and all causes of actions for Natural Resource Damages arising from Discharges, or any other causes of action that were brought or could have been brought, arising out of any allegations in Plaintiffs’ Complaint in the Lawsuit, including but not limited to alternative or additional theories of liability, in any way arising out of or relating to the Discharges.

7. The DEP gave Solvay a huge break on the Delaware River NRD liabilities. DEP pledged to find other polluters, deferred to the federal NRD damages assessment process, and promised not to sue Solvay. The Delaware damages are likely to be the most significant. So typical that the biggest issue is buried at the end of the document, see:

… prior to initiating any lawsuit or administrative action with respect to the Delaware River Claims, the Department agrees to work in good faith to identify other potentially responsible parties it believes could be responsible for contamination of the Delaware River and to include such parties in any such action.

b. Delaware River Claims for Natural Resource Damages: The Department further agrees that it shall not bring any future lawsuit for Delaware River Claims for Natural Resource Damages against Solvay until a Natural Resources Damages Assessment (“NRDA”) that includes miles 79 through 105 of the Delaware River has been completed by one or more of the applicable trustees under applicable Federal or State law or regulation and the trustee(s)’ determination of Solvay’s potential liability for Natural Resource Damages has been made pursuant to a procedure that allows for participation (e.g., comment) by Solvay.

8. Solvay admits no wrongdoing and DEP provides explicit legal protections to Solvay. The settlement is effectively a private contract between DEP and Solvay. This is bad public policy – why would DEP protect Solvay from other litigation, including by people harmed?:

XIV. NO ADMISSIONS OF LIABILITY

60. This JCO shall not be used as evidence in any other litigation or future proceedings other than in a proceeding to enforce the terms hereof, any other proceeding involving the contribution protections provided by this JCO, or any contribution action brought by Solvay.

61. No part of this JCO, nor the JCO as a whole, nor any activity taken by Solvay pursuant to this JCO, shall constitute, nor shall be interpreted or used as, an admission of fault, liability, law, or fact, nor shall this JCO or any Section or Paragraph thereof be admissible in any proceeding or hearing as an admission, except to the extent necessary for Solvay or Plaintiffs to enforce the provisions of this JCO or to establish the scope of the release or contribution protection provisions of this JCO.

9. Finally, the DEP provided finality and certainty that the $75 million fully compensated the public for NRD (except for Delaware River damages). DEP provided that guarantee despite the fact that they had no scientifically valid data or study that documented the extent and economic value of the natural resource injuries. Just the opposite: in this settlement, the DEP required that Solvay conduct an ecological assessment to document these injuries:

62. Plaintiffs acknowledge and agree that Solvay’s Remediation Activities and establishment of an RFS sufficient to complete all of the Remediation Activities, together with its making the payments set forth in Paragraph 4 of this JCO, including funding the Remedial Projects, compensates the public for at least Solvay’s fair share of any and all Natural Resource Damages, except to the Delaware River, caused by any Discharge, and satisfies fully Solvay’s remediation obligations related to such Discharges, except with respect to the Delaware River Claims. Plaintiffs therefore find and agree that the compensation and commitments provided in the JCO constitute at least Solvay’s fair share of Natural Resource Damages and remediation obligations with respect to Discharges, except with respect to the Delaware River.