Once Again, DEP Gets A Pass, We Get Poisoned, And Polluters Continue To Evade Regulation And Dodge Huge Liability
Federal and State Laws Protect Polluters More Than People And Allow Secrecy
Environmentalist And Media Miss The Chemical Forest For The Solvay Tree
photo: Bill Wolfe
NJ Spotlight wrote another story today on the toxic chemicals PFAS, this one is based on a new Natural Resource Damage (NRD) lawsuit filed by AG Grewal on behalf of DEP against Solvey Specialty Polymers chemical corporation, see:
No mention of the fact that Solvay is one of NJ’s “Fatal Fifteen”. The significance of that is suggested in point #3 below. Briefly, NJ’s suite of chemical safety State laws, the “Toxic Catastrophe Prevention Act” (TCPA), Pollution Prevention, Right To Know, and Spill Acts, have huge loopholes and the federal law under The Toxic Substances Control Act (TSCA) is far worse, and it pre-empts the flawed but still stronger NJ State laws.
[Update: 11/13 – while we’re on the topic of PFAS, consider this:
Biden’s environmental team is infested with industry hacks, like Michael McCabe, a former EPA official and aide Biden, who led DuPont’s defense of the toxic PFAS chemical PFOA, and is now once again advising Biden on the EPA… ~~~ end update]
Once again, the coverage ignores the legal and regulatory framework that allows individual cases of abuse to occur and relies heavily on DEP and AG press releases.
Those major journalistic flaws mislead readers on important issues and let polluters, regulators, and legislators off the hook.
At least 3 critical points are either completely ignored or spun.
First of all, one reason that AG Grewal filed a lawsuit is because a prior DEP Spill Act Directive – which was highly praised by prior media coverage – is not enforceable.
We explained why that DEP Directive was not enforceable in this May 31, 2020 post:
According to numerous favorable media reports and praise by environmental groups, Murphy DEP Commissioner McCabe and Attorney General Grewal are, in AG Grewal’s words, “dropping the hammer” on corporate polluters. For the typical narrative and spin, see:
One of the more widely reported alleged “hammers dropped” was a March 25, 2019 DEP Spill Act Directive against major corporate toxic polluters Dupont, Dow, and 3M.
The reality is exactly the opposite.
What AG Grewal describes as legal “hammers” are actually pillows.
Today’s Spotlight story misleadingly mentions that history in passing and fails to explain the significance:
The action follows a “Directive” issued by DEP in March last year against Solvay and four other chemical companies, demanding that they clean up widespread PFAS pollution. The DEP said in the new suit that Solvay has not met all the requirements of the Directive.
Like we said: the DEP Directive was unenforceable. Both AG Grewal and DEP Commissioner McCabe misled the public about that.
Second, NJ Spotlight once again provides a platform for AG Grewal and DEP Commissioner McCabe to spin, mislead readers, and exaggerate the strength of the NRD program:
The suit is the latest in a series of Natural Resource Damage actions in which the Murphy administration has been seeking compensation from polluters for damages to the natural environment. The agencies also announced a Natural Resource Damage suit against Honeywell International for environmental damage at the Quanta Resources Superfund Site along the Hudson River in Edgewater, Bergen County.
“The days of free passes and soft landings for polluters in New Jersey are over,” said Attorney General Gurbir Grewal. “The corporations we’re suing knew full well the potential harms they were inflicting on our environment but chose to forge ahead anyway. When companies disregard the laws meant to protect our environment, they can expect to pay.”
Thats way over the top. (and I get a kick out of the “soft landing” rhetorical echo of my prior “pillow” analogy!)
Polluters continue to get “soft landings”. They continue to pay pennies on the dollar of the cost of actual damages to natural resources.
This NJ Law Journal article explains why, see:(read the whole thing)
The [Exxon] settlement, for a century of pollution at Exxon’s Bayway and Bayonne refinery sites, has been attacked as a deal that would pay less than three cents on the dollar for natural resource damage the state’s experts valued at $8.9 billion, in the context of a case where liability was already decided and a ruling on a dollar figure, after months of trial, was imminent.
But some lawyers and environmental advocates said the state’s failure to adopt a methodology for calculating damages for harm to natural resources through the formal rule-making process—as it committed to do more than a decade ago when it settled another suit—may have weakened its negotiating position and led to a lower settlement in not just the Exxon case but in other natural resource damage suits it has brought. ...
Bill Wolfe, the director of nonprofit environmental advocacy group New Jersey Public Employees for Environmental Responsibility, said the issue is one he’s been raising since the SEED case.
Wolfe is not a lawyer but spent 13 years as a policy analyst and planner for the DEP, and was policy director for the Sierra Club’s New Jersey chapter for seven years.
Wolfe said the lack of valuation rules leaves the state vulnerable to challenges on the amount of damages. The state “knows it has a weak legal hand,” making it reluctant to push too hard and more willing to settle, Wolfe said, adding that Exxon’s lawyers are “sharp enough to know this” too. “There’s this wink and a nod going on where the DEP is saying, ‘We won’t squeeze you too hard if you just come to the table and settle,’” Wolfe said, adding that it’s been “a quiet little dance for 10 years,” with the state knowing it can’t get more than pennies on the dollar.
DEP still has not adopted regulations to enforce the NRD program. That failure continues to undermine the State’s legal hand and allow polluters to settle for pennies on the dollar.
Surely, that is a “soft landing”.
Senate Environment Committee Chairman Bob Smith understood this DEP failure and formed a Legislative Taskforce charged with developing recommendations for legislation to mandate that DEP adopt regulatory standards, including methods to quantify and monetize natural resource injuries that formed the basis for NRD liability.
That Task Force never made recommendations and there has been no legislation.
Third, the Spotlight story reports – without connection to law or policy – great rhetorical umbrage that was taken by NJ environmentalists, particularly about secrecy and justice: (emphases mine)
“The secrecy that cloaks the truth about what Solvay has been releasing to the environment and exposing people to over the years is shocking,” she said. “That Solvay used the replacement compound without anyone, even DEP until recently, knowing it and without the toxicity known about the chemical and its properties, such as persistence in the environment and in people’s bodies, is nothing short of criminal.”
Delaware Riverkeeper Network and three other environmental groups welcomed the suit, and urged the DEP to halt the use of replacement chemicals until more is known about whether they threaten public health.
“People today may be drinking water that is contaminated but don’t know it,” the groups said in a statement. “The fact that these are the same people who were exposed to PFNA in the past is intolerably unjust.”
That’s bullshit. Federal EPA and NJ DEP knew all about the “replacement” chemicals and their toxicity.
What is “shocking” and “intolerably unjust” is the fact that federal law allows corporate polluters to manufacture, use, and discharge toxic chemicals that poison people and the environment.
This law allows chemical corporations to keep that information “secret”.
That same law prohibits federal and state government regulators from disclosing this information to the public and strictly limits government’s ability to regulate these toxic chemicals to reduce risks and impacts.
Remarkably, that disgraceful law was sponsored and negotiated by NJ’s US Senator Cory Booker, who bragged about the strength of and celebrated the passage of that weak law.
I have written NJ Spotlight reporter Jon Hurdle multiple times to explain that the source of these problems is the federal Toxic Substances Control Act (TSCA).
Here’s my latest effort to prompt more aggressive and accurate coverage:
Jon – a couple of points on your Solvey NRD lawsuit story today:
1. While you did mention the prior DEP Directive, at the time it was issued, NJ Spotlight and other media gave it very positive (and misleading) coverage.
I noted at the time that it was unenforceable, see:
DEP Lacks Authority To Enforce Directive Against Toxic PFOA Polluters
So, once again, DEP is not held accountable for their spin and NJ ENGO’s get away with false praise. This misleads readers.
2. You gave AG Grewal and DEP McCabe a platform to tout the NRD program.
But check out this NJ Law Journal story on DEP’s NRD program. It explains why it is seriously flawed and can only recover pennies on the dollar of actual NR damage:
Some Say NJ Had Little Choice But To Settle With Exxon
DEP is under a judicial settlement agreement to adopt NRD regulations and has simply failed to comply with it. They should be held in contempt of court, not praised.
Senator Smith formed a legislative task force to address the DEP’s failure to adopt NRD regulations and recommend legislative standards, including regulations to quantify NR economic damage.
That Taskforce has not met or made recommendations as far as I know and there has been no legislation, as Senator Smith previously pledged.
The big polluters like it just like this – they can go on paying pennies on the dollar.
3. The “secret” alternative toxic chemical was not “secret” – it’s use was disclosed to EPA under the Toxic Substances Control Act (TSCA).
Why not do a story on TSCA – especially since it was NJ Senator Frank Lautenberg’s baby and current US Senator Booker assumed his legacy and cut a very bad deal on “reform”.
What’s outrageous and unjust is the US law (TSCA) allows corporations to benefit from secrecy agreements with State and Federal regulators, who are prohibited from disclosing this information to the public, despite their knowledge that chemicals are poisoning people and the environment.
Wolfe