As mayor of North Haledon, I’m aware of the pollution in the Passaic River, caused by numerous industrial and commercial activities over time. The lower 8.3 miles of the river are highly contaminated, and the Environmental Protection Agency has identified more than 100 companies responsible for this pollution. Now, the agency is proposing a settlement that would allow 85 of these companies to pay just $150 million without requiring them to clean up the pollution they caused. This payment, only some of which will be put toward cleanup work in the lower Passaic, is a small fraction of the nearly $2 billion estimated cleanup cost, leaving New Jersey taxpayers and a handful of private companies on the hook for the entire cleanup.
Additionally, I support the recent action taken by the EPA to order Occidental Chemical Corp (OxyChem) to design the interim cleanup plan for the upper nine miles of the lower Passaic River. However, it’s worth noting that OxyChem has already made previous offers to plan and execute the river cleanup as long as it maintains the right to recoup costs from responsible parties, as outlined by the federal Superfund law. If the EPA hadn’t issued the proposed consent decree, the cleanup efforts would have already begun, and New Jersey taxpayers would not have to worry about bearing the costs to clean up the river. The proposed settlement is unfair to taxpayers and inconsistent with the Superfund law, which requires polluters to pay for the cleanup. However, it’s not too late for the residents of North Haledon and our surrounding communities to speak up and fight for what’s fair.
The EPA usually follows the Superfund law, identifying responsible parties and collaborating with them to develop and implement a cleanup plan. If they cannot agree on how to split the costs of the cleanup, responsible parties use the courts, where full disclosure of facts is required before the court distributes the costs equitably among the responsible parties. Here, the EPA took a different path for the Passaic River and chose to rely on an opaque process developed by one of its consultants, who previously worked at the agency. Under this process, companies were allowed to select the data they wanted to provide, without giving other affected parties the opportunity to review or respond to it. This was a seriously flawed process that allowed at least some polluters to game the system. Information disclosed in a recent lawsuit revealed that some companies now being released by EPA did not disclose their use of certain toxic chemicals like dioxins, PCBs, DDT, mercury or lead at their Passaic River facilities or failed to acknowledge that their process wastes made it into the Passaic River. The EPA now seeks to protect those same polluters by releasing them from all responsibility to clean up the pollution they caused.
‘Less than fair share’
If the 85 companies are permitted to settle with the EPA and pay less than their fair share of the cleanup cost, over three dozen New Jersey townships, the Passaic Valley Sewerage Commission and other companies, none of which are included in the EPA’s settlement, would be responsible for the nearly $2 billion in cleanup costs. The companies attempting to “cash out” argue that the New Jersey public entities are responsible because they owned sewer facilities that private companies used to transport the industrial waste produced by companies being released in the settlement. If the settlement is approved, the Passaic Valley Sewerage Commission and local townships would be barred legally from seeking to recoup the enormous costs to clean up the pollutants from the 85 companies who have settled, leaving them no choice but to raise the required funds by raising rates and taxes.
Thankfully, the settlement is subject to a public comment period; that ends on March 22. Concerned New Jersey residents must submit comments to the government before this deadline to ensure their voices are heard. Comments must be emailed to: pubcomment-ees.enrd@usdoj.gov or mailed to: Todd Kim, Assistant Attorney General, U.S. DOJ—ENRD, P.O. Box 7611, Washington, DC 20044–7611. The government’s lawyers will evaluate comments received, and if they still approve the settlement, an independent federal judge will decide its final approval.
The taxpayers of New Jersey deserve a deal that puts communities ahead of corporations. Polluters, not people, should pay for cleaning up the Passaic. The EPA must listen to the public and ensure that the settlement upholds the federal Superfund law. The proposed settlement falls short of these standards and would only prolong the cleanup process. We’re already seeing progress on the design of EPA’s selected remedies to clean the river, but if the settlement is approved, it will provoke lawsuits that will delay the cleanup for years and will impose significant costs on New Jersey taxpayers — costs that should be paid by polluters, not people.