For more than four decades, residents of New Jersey have looked to the U.S. Environmental Protection Agency to facilitate a thorough cleanup of the Passaic River and to ensure companies pay to remediate pollution they caused. The state now has an opportunity to see this vision realized — if the EPA follows the law and its own investigations into the pollutants in the river.
My company — Occidental Chemical Corp. — has offered to get the work done while simultaneously, through court proceedings as directed by federal law, determining who is responsible for what share of the total cost of the cleanup. OxyChem, which is already advancing the cleanup of the lower 8.3 miles of the Passaic River, recently offered to design and implement the EPA’s selected remedy for the upper nine miles of the river, amounting to one of the most comprehensive cleanup proposals ever made by one company in the Superfund program’s 42-year history.
Our offer is contingent on a simple request: that the EPA not block us from taking legal action to seek contributions to the cleanup from other companies that also bear significant legal responsibility for the river’s condition. We have this right under the federal Superfund law but may be prevented from exercising it. How? The EPA is negotiating settlements for a small fraction of the fair share owed by dozens of the companies responsible for contaminating the river with dioxins, PCBs, DDT, lead and other chemicals. Astonishingly, EPA also seeks to shield them from being sued to collect on the real cost of the cleanup, even though that contradicts U.S. law.
Through litigation involving the lower Passaic cleanup, we have discovered that some companies engaged in settlement discussions with the EPA appear to have withheld documents — requested by the EPA decades ago — about their use of hazardous substances found in the Passaic like lead, PCBs, and DDT. This information demonstrates their culpability and impacts their fair share of Passaic cleanup costs.
Shielding companies that have acted like this from contributing their fair share of a Superfund cleanup is not in the public interest. The EPA has said more than 100 companies and organizations are potentially responsible for polluting this 17-mile stretch of the Passaic over more than a century. While some companies have contributed to limited cleanup activities, only OxyChem has offered to design and sequentially implement the EPA’s selected remedies for the river.
OxyChem became involved in the Passaic through its 1986 purchase of the stock of Diamond Shamrock Chemicals Co. (DSCC). DSCC’s predecessor, Diamond Alkali, manufactured the pesticide DDT at its Lister Avenue plant in Newark before ceasing operations there in 1969. At the U.S. government’s direction, Diamond also made products for use during the Vietnam War that generated dioxin.
While OxyChem acquired DSCC 17 years later, and never operated the Newark plant, OxyChem inherited legal responsibility for the plant as one of the successors to DSCC.
Our legal approach, combined with the offer OxyChem has already made to EPA, is more than reasonable. It costs the taxpayers nothing. It’s also consistent with EPA’s own investigations, which identified eight pollutants in the Passaic. Only two — dioxin and DDT — were associated with Diamond’s Newark plant. Both chemicals were also associated with other companies the EPA has identified as potentially responsible.
Determining how much each company should contribute to the cleanup is an important, serious process. That is why Congress, in enacting the Superfund law, entrusted courts — rather than the EPA —with responsibility for allocating liability. Only a court of law has the power to compel companies to submit evidence under oath and penalty of perjury if they lie, conceal or knowingly discard evidence.
It’s just common sense: If companies know they cannot be penalized for making misstatements or come to believe they can settle cheaply with the EPA with a waiver of future liabilities, what incentive do they have to be honest about the extent of their actions?
To some, it may be tempting to pin the lion’s share of this cleanup on a single company — especially a large company that has already begun performing cleanup work. But that would send a perverse message to other companies weighing Superfund liabilities: They’re better off dragging their feet than stepping up and participating in the cleanup.
Understandably, many New Jerseyans want action. Our proposal addresses this: We would begin designing the EPA’s selected remedy for the upper nine miles immediately, continue the work we’ve started on the river’s lower portion and leave it to a court of law to determine later which companies must contribute to the final tab and how much.
By accepting this offer, the EPA would demonstrate that its focus is on protecting the Passaic, not polluters.