Op-Ed: Village Pursues Pollution Lawsuit

As a Trustee of The Township of South Orange Village I want to convey an urgent plea for assistance with respect to a lawsuit involving the pollution of the Passaic River and the Newark Bay brought by several industrial polluters against the Village and over eighty-five (85) other public entities. The third party lawsuit seeks to have the public entities contribute to the cleanup of those resources. This litigation has been and continues to be costly, placing a significant financial burden on the citizens of New Jersey. Not only are the citizens paying for the State’s costs in this litigation, but they are now also being asked to contribute based upon sewage waste from the municipalities in the region.

In December 2005, the State and the NJDEP commenced the action against Occidental Chemical Corporation, Tierra Solutions, Inc., Maxus Energy Company and other companies that the State alleges were responsible for the intentional pollution of these resources by the Diamond Shamrock Chemical Company and its predecessors. This suit was based in part on the 1990 decision by Appellate Division that affirmed a finding that Diamond had intentionally polluted the Passaic River with Dioxin, DDT and related hazardous substances from its chemical manufacturing operations at 80 Lister Avenue in Newark. Tierra and Maxus then joined the public entities in the suit, seeking to have them contribute to the costs incurred and to be incurred for the investigation and cleanup of Newark Bay and the lower 18 miles of the Passaic River.

The essence of the claims against the municipalities is that since the 1920s municipal sewage waste was sent to the river. It is important to keep in mind that the disposal of sewage in this manner was mostly done in accordance with statutorily created and regulated wastewater treatment programs. In fact, in large part the claims against municipalities are actually only for those occasions when excessive rains caused overflows at the regional sewage treatment facilities, allowing some amount of untreated waste to flow into the river. It is evident that the flow of treated sewage into the rivers and these overflow events were anticipated in the permit process and, therefore, were contemplated to occur in the program created and administered by the plaintiff, the NJDEP.

Further, the legislature had created an exemption for sewage waste in the Spill Act to protect public entities from facing liability for the normal and usual operations and obligations of the government, which has included waste disposal for over the past 150 years. The municipalities attempted to obtain dismissal of the suit under the exemption; however, the Court denied the motion finding that the public entities needed to prove that the waste did not contain any industrial waste. As a result these public entities have become embroiled in one of the most complex pieces of litigation in the country and have been compelled by Court Order to bear the costs of the court appointed special master, Marina Corodemus, J.S.C. (retired), and the cost for electronic discovery, and other expense related to the case on an equal basis with all of the commercial and industrial parties as well as the Plaintiff, the State. This includes requiring the public entities to even contribute equal costs for a phase of this case in which the only issues are which of the direct defendants are successors to the Diamond Shamrock Company. In essence, the citizens are being asked to pay for both ends of this litigation through taxes to the State to support the prosecution of the case and again through local taxes to defend the third party complaint.

The public entities have made efforts to seek relief from these onerous and inequitable obligations by filing motions with the Court and joining similar motions by other private parties. These efforts have been to no avail. The public continues to be burdened with costs of this litigation, and the specter of having to contribute to a cleanup of natural resources based upon the public function of providing for the management of the public’s waste, a function that has developed in modern society since the mid-19th century, and has been governed by the laws, regulations, permits and controls of the State of New Jersey and has been constructed with public funds. In essence, the industries that have polluted the resources of the State, have not only burdened the public with the cost of their discharges of industrial waste, they now seek to have the public contribute to the cost of cleanup and the costs of the litigation being brought by the State. Simply stated, the taxpayers are being asked to fund the litigation to clean up the Newark Bay both as plaintiffs and as third party defendants. This scenario, this burden to the citizens of the State simply lacks any common sense. This problem is further exacerbated given the reality of the current economic climate, the drastic reduction in State aid to municipalities, the severe cut-backs confronting municipal budgets, and the amendments to State law imposing a two percent (2%) cap on annual property tax increases, the Village can simply not sustain the framework set in place by the court in this lawsuit.

A new bill was introduced in the State Legislature that, when passed, will protect New Jersey taxpayers from potentially bailing out chemical companies responsible for polluting the Passaic River and Newark Bay and evading responsibility for decades (see – www.nyspillactbill.com).

For these reasons it is requested that you communicate to your representatives to intervene and assist the public in relieving it from the onerous and unduly prejudicial obligations it confronts in this complex and burdensome litigation.