Fighting to getting toxic waste out of Jersey City
Posted April 26, 2010 in Health and the Environment, Living Sustainably
Last year, NRDC, together with two community groups, Interfaith Community Organization and GRACO, filed a federal lawsuit in New Jersey to compel PPG Industries Inc. - a Pittsburgh-based corporation responsible for toxic hexavalent chromium contamination of a densely populated area of Jersey City - to clean up the hazardous waste it created decades ago.
Massive quantities of hexavalent chromium, a potent carcinogen and the villain in the film Erin Brockovich, continue to contaminate the former production site, groundwater beneath the site, and surrounding neighborhoods. These dangerous levels of hexavalent chromium are a real threat to the health of community residents – and the toxin has been found in their homes, on their lawns, and in their basements.
Having failed to clean up its pollution for decades after it was known to be posing a hazard, PPG has knowingly endangered the health of countless residents, commuters, and school children, who pass by this contaminated site every day.
Yet, for the past 35 years, the State of New Jersey has failed to enforce its orders to PPG to clean up the chromium. But shortly after NRDC filed its lawsuit, the State, the City of Jersey City, and PPG announced that they had settled all outstanding claims in state court. They then filed a motion in our federal case claiming on several legal grounds that our lawsuit should be dismissed because their agreement was sufficient.
NRDC disagreed —and on March 26th, a federal judge in Newark backed us up. In fact, Judge Joseph A. Greenaway, Jr. issued an opinion rejecting every one of PPG’s arguments. The judge ruled that the lawsuit filed by NRDC and the other groups could proceed, and we are entitled to pursue our federal claims to force PPG to clean up all of the chromium contamination that might endanger public health and the environment.
In particular, the judge recognized that the federal court may provide for stricter cleanup standards than the State can require. This is a pivotal issue, because recent studies reveal State cleanup guidelines to allow levels of contamination to remain that are more than 10 times too high to protect public health.
Now, the lawsuit will go on and the plaintiffs will have the opportunity to compel PPG to perform a cleanup that fully safeguards the health of Jersey City residents.
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Comments
Global Patriot — Apr 26 2010 12:53 PM
It's hard to believe that the City and State governments would drag their feet for so long on a matter that directly effects the health of so many citizens, then try to skirt a federal lawsuit to avoid prosecution.
Mark Izeman — Apr 29 2010 10:43 AM
And here is a terrific editorial that just ran in the New Jersey Law Journal:
No End Runs Around RCRA
New Jersey Law Journal
April 23, 2010
The Resource Conservation and Recovery Act of 1976, the principal federal law governing the disposal of solid hazardous waste, contains a powerful "citizen suit" provision: "any person may commence a civil action on his own behalf ... against any person, including the United States and any other governmental instrumentality or agency ... who has contributed or is contributing to the past or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B).
In Interfaith Community Organizaton, Inc. v. PPG Industries, Inc. , No.
09-0480 (D.N.J. Mar. 26, 2010), Judge Joseph Greenaway Jr.
(technically sitting by designation in his prior court after his promotion to circuit judge), rebuffed a novel attempt by the private defendants to immunize themselves against an RCRA action by first entering into a voluntary partial consent judgment with the state Department of Environmental Protection and the city of Jersey City in a state court proceeding under the Spill Compensation and Control Act, N.J.SA. § 58:10-23.11 to 23.24, and then arguing to the federal court that the RCRA claim was now precluded by the state consent judgment under the Full Faith and Credit Act, 28 U.S.C. § 1738. That device, however convenient, is too facile to be accepted.
In an opinion steeped in the terminology of federal jurisdiction, Judge Greenaway ruled, quite correctly in our view, that such an agreement between the hazardous waste site owner and the state environmental agency cannot preclude private plaintiffs from pursuing their federal cause of action. The potential remedies available under RCRA were more extensive than those contained in the state consent judgment, and thus the federal action was not moot. And since Judge Greenaway found that federal courts had exclusive original jurisdiction over RCRA actions, then under New Jersey's own res judicata doctrine, a state court judgment could not preclude a later federal claim over which it lacked subject matter jurisdiction. Judge Greenaway also rejected a host of arguments based on abstention, finding that when Congress created a private cause of action to respond to "imminent and substantial endangerment," it could not have intended that plaintiffs defer indefinitely to a state administrative agency, such as NJDEP, once the agency becomes involved.
And although Judge Greenaway did not find it necessary to reach this point, basic principles of res judicata, in New Jersey and elsewhere, require that a party against whom res judicata is asserted must be in privity with the party in the original action. The contention, however, that DEP is in privity with plaintiffs in this case, such as the Natural Resources Defense Council, so that they would be deemed to be asserting coterminous legal interests, is one that would probably come as a rude surprise to both of them.
Hexavalent chromium is one of the most potent carcinogens known and we are painfully aware that the long-delayed remediation of the over 100 contaminated sites in Jersey City is an issue subject to intense and often conflicting local political pressures. Effective remediation of these sites has been put off for years, with many stakeholders finding fault, with much facial justification, with the prior government response. On the other hand, the DEP and Jersey City now argue that the state consent judgment contains the most practical and effective prospective solution, despite the compromises and concessions they inevitably made in reaching the agreement. At this juncture, we need not question the subjective good faith of state and local officials in pressing for their preferred remedial scheme, nor entertain suspicions about "sweetheart deals." But given the troubling history of the state and local response thus far, it would be, to say the least, premature to allow them to take complete control of the process to the exclusion of the oversight that a federal RCRA action provides. We agree with Judge Greenaway that Congress intended exactly this additional level of scrutiny when it allowed "any person" to invoke federal court jurisdiction under the RCRA.