DEP Settlement At Old American Cyanamid Toxic Site Ignores DEP Failure To Enforce Environmental Laws
DEP Failed To Enforce Cleanup Laws For Over 20 Years, Making The Problems Far Worse
Commissioner McCabe tried to sweep all that under the rug with false statements about the benefits of voluntary compliance and cooperation
DEP Perpetuates Urban Neglect While Keeping Backyards of The Gentry Green
[Update below – US Justice Department Settlement Policy Rejects These Kind of Private Deals]
The Murphy DEP’s self congratulatory press release on a $4.2 million “Natural Resource Damage” (NRD) “voluntary” settlement at the former American Cyanamid Superfund site is misleading and leaves a lot of relevant information out. (read the Settlement document)
Let me highlight just a few issues that were spun beyond recognition or omitted entirely.
I) The deal was not “voluntary”
DEP described the settlement as “voluntary”:
The agreement, one of the largest voluntary settlements for natural resource damages (NRDs) to the state’s groundwater, compensates the public for resource injuries caused by the sprawling former industrial site that straddles Bridgewater and Bound Brook along the Raritan River.
That is just flat out false.
Under NJ’s Spill Compensation and Control Act and NJ Water Pollution Control Act, corporate polluters are under a legal obligation to compensate the public for damages to natural resources caused by their toxic pollution. Furthermore, DEP implements the NRD program via regulations and the Attorney General backs that up via litigation.
There’s nothing “voluntary” about that.
In an embarrassingly display, Murphy Attorney General Grewal contradicts DEP’s spin and correctly highlights “enforcement“: (MyCentralJersey story)
“As we’ve made clear for years, the [Gov. Phil| Murphy Administration is committed to holding polluters accountable, which is why we breathed new life into our Natural Resource Damage litigation efforts,” Attorney General Gurbir Grewal said in a statement. “Actions like today’s are why I remain committed to continuing our robust efforts to promote environmental enforcement and environmental justice all across New Jersey.”
In another embarrassing major policy conflict between Murphy Cabinet members, AG Grewal also uses the correct rhetoric “holding polluters accountable”, while DEP Commissioner McCabe lamely an falsely touts not only the “voluntary” nature of the settlement, but claims there are benefits of “cooperation” with “responsible parties”.
II) DEP Cooperation With Polluters Is a Failed Policy
DEP Commissioner McCabe touts alleged benefits of “cooperation” and “applauds” the corporate polluter:
“This agreement demonstrates how the State and responsible parties can work together for the public good,” Commissioner McCabe said. “I applaud Wyeth for working cooperatively with DEP’s Office of Natural Resource Restoration to amicably resolve their liability and to enhance natural resources in the Raritan River watershed. Cooperation like this ensures that our time is better spent restoring and improving outdoor spaces for the enjoyment of all New Jerseyans.”
That is a crock of shit. It reads like a press releasee from Wyeth. What the hell was McCabe thinking? Why would she praise a corporate polluter? Merely for coming to the table to settle and dodging a lawsuit (while paying pennies on the dollar of actual damage)?
DEP’s “cooperation” with corporate polluters – and failure to enforce toxic site cleanup laws – was the target of a highly critical US EPA Office Of Inspector General (OIG) Report. see:
The DEP’s failures at the Wyeth (formerly American Cyanamid site) were specifically targeted and audited in that OIG Report.
The OIG Report focused on several toxic clean-up operations that had been going on for more than 20 years without completion and concluded that –
- New Jersey had the worst track record in the nation, accounting for more than one quarter of all unresolved Superfund clean-ups more than 20 years old;
- Delays were primarily due to the state department of Environmental protection (DEP) not using legal tools available to them to force responsible parties to clean up pollution; and
- The U.S. EPA should step in and take over mired state-supervised clean-ups.
Cleanup delays, caused by DEP’s failure to enforce cleanup laws, allowed the toxic pollution to spread and migrate off site via the Raritan River and groundwater, and harm fish, wildlife and human health, including the pollution and closure of drinking water sources, see:
- Classification Exception Area and Well Restriction Area Proposal, American Cyanamid Superfund Site (Golder Associates, March 2020) (see paragraph #7)
But you would never know any of this by reading DEP’s false and highly misleading self congratulatory press release.
III) $4.2 Million is Peanuts
My initial reaction was $4.2 million is peanuts, especially for the magnitude of natural resource damages from that site.
Neither DEP nor Wyeth conducted a formal natural resource injury damage assessment and quantified those damages (as per NJ DEP site remediation and NRD program regulations). No doubt DEP’s failure to do that was intended to avoid another Exxon NRD fiasco, where DEP quantified almost $9 billion in NR damages, which then exposed their paltry settlement. See:
DEP admits that in paragraph #8: (none of the reports referenced quantified economic damages):
8. The Department finds that the information provided in the reports referenced in paragraphs 5 – 7 is sufficient to form a rational basis for determining the nature and extent of injuries arising from the Discharges and for determining the nature and extent of Wyeth’s alleged liability for Natural Resource Damages, defined below, arising from the Discharges.
(and despite that bungling, DEP still has failed to adopt regulations to quantify NRD damages – and what ever happened to the Senate bill (sponsored by Chairman Smith) that would have mandated that DEP adopt NRD regulations? See:
Will anyone ask Senator Smith and Attorney General Grewal and DEP Commissioner McCabe about this?
So how did DEP arrive at $4.2 million?
Answer: It was purely a deal (and a dirty one at that).
It reminds me of the recent oxycodone settlement with the Sackler family.
American Cyanamid and Wyeth are some deep pocketed corporate polluters that have billions in assets that could have been tapped (also recalls the Christie Exxon NRD settlement – 3 cents on the dollar).
IV) Environmental Justice?
I was shocked by AG Grewal’s statement about “environmental justice”.
Attorney General Gurbir Grewal said in a statement. “Actions like today’s are why I remain committed to continuing our robust efforts to promote environmental enforcement and environmental justice all across New Jersey.”
The settlement money went to purchase land in East Amwell, a wealthy Hunterdon County town that is the opposite of an EJ community. DEP is doing more of this:
- NJ’s Landed Gentry – Open Space Has Become A Tool For The New Restrictive Covenants
- Keeping the Backyards of the Landed Gentry Green – With Public Funds
And while DEP is keeping the backyards of the Gentry green, they are ignoring and neglecting urban interests, like Trenton’s magnificent Duck Island, which could become a fantastic urban riverfront State Park with a little DEP leadership and NRD money:
What was AG Grewal thinking?
V) Green Cover
I was very troubled to read that a NJ conservation group was directly involved in the Settlement:
9. In order to provide compensation for the injuries to natural resources described in paragraph 3 above, Wyeth has entered into an agreement with the non-profit conservation intermediary organization, New Jersey Conservation Foundation (“NJCF”) pursuant to which, and subject to the execution of this settlement, Wyeth will provide funds to NJCF for the purposes of land acquisition, and preservation, which preservation shall include the placement of a conservation easement on the acquired land, as approved by the Department.
That is an “entrepreneurial” and corrupt role for NJCF that was pioneered in NJ by Mike Catania. It is what I called a Green Ponzi Scheme. It represents the conservation community’s corporate capture and capitulation to Neoliberalism.
Mike Catania has long been involved in DEP NRD Settlements and had allocated tons of NRD money to various NJ conservation groups. As I wrote:
Even more aggressively, the “entrepreneurial conservation” model is defined and proudly laid out in excruciating detail by Mike Catania, who explains the “business model” of his creation: Conservation Resources, Inc. (see: ** “A Ten- Year Journey: Conservation Resources’ Final Report):
“We would also like to acknowledge the handful of farsighted regulators who were open to CRI’s role in matching those members of the regulated community who needed to fund a conservation project in order to satisfy a regulatory requirement with a non profit organization or local government seeking funding for an appropriate project. For their part, the regulated community and their legal advisors and consultants instinctively “got” CRI’s role and welcomed this new way to comply with New Jersey’s stringent environmental regulatory requirements.”
[**Note: To cover his tracks, Catania killed the link to his own self congratulatory Report:“A Ten- Year Journey: Conservation Resources’ Final Report) – just more evidence that these folks are corrupt.]
That NJCF role raises all kinds of conflicts off interest, as well as provides green cover to the Murphy administration.
This is not an appropriate role for a non-profit conservation organization to be playing.
It also is totally inappropriate for the DEP, as a State regulatory agency, to be including private 3rd parties directly in legal settlement agreements.
It’s obviously another form of NJ’s pay-to-play corrupt political culture.
Conservation groups that are loyal to and praise the DEP and Governor – and keep their mouths shut – get a cut of the action.
And that is just plain wrong.
[and in another incredible irony, the NJCF property has a pipeline easement across it!]
[Update: If you don’t take my views as valid, consider that the US Justice Department Settlement Policy Manual strongly discourage this kind of settlement with NJCF as a private third party.
The USDOJ policy states:
The goals of a settlement agreement between the Department and a private party are to compensate victims, redress harm, and/or punish and deter unlawful conduct. It is generally not appropriate to use a settlement agreement to require, as a condition of settlement, payment to non-governmental, third-party organizations who are not victims or parties to the lawsuit. Department attorneys shall not enter into any agreement on behalf of the United States in settlement of federal claims or charges, including agreements settling civil litigation, accepting plea agreements, or deferring or declining prosecution in a criminal matter, that directs or provides for a payment to any non-governmental person or entity that is not a party to the dispute.
NJCF is not a “victim” and not a “party to the lawsuit”. Does NJ Attorney General’s Office have a policy on these issues?
The USDOJ Policy sets strict limits of settlements that include payments to private third parties:
Department attorneys may only enter into such agreements in three specific situations:
- When the otherwise lawful payment or loan provides restitution to a victim or otherwise directly remedies the harm that is sought to be redressed (for example, harm to the environment or from official corruption).
- When payment is directed towards legal or other professional services rendered in connection with the case.
- When payment is expressly authorized by statute, including restitution and forfeiture.
This policy applies to all civil and criminal cases litigated under the direction of the Attorney General and includes civil settlement agreements, cy pres agreements or provisions, plea agreements, non-prosecution agreements, and deferred prosecution agreements.
NJCF does not meet any of these conditions: they are not a victim; the money is not directed to professional services; and there is not restitution of forfeiture and I a unaware of any NJ laws that “expressly authorizes” such NRD payments to private third parties.
Why isn’ the press and NJ legal community raising hell about this blatant abuse?