Final Report:

The local and national recognition the Passaic River has received has not necessarily been for its beauty. The Passaic River lies in infamy as one of the worst sites of pollution in America. This is due to the multiple Superfund Sites that reside on the Passaic’s riverside. United States Senator Cory Booker has gone on record multiple times to state that “The Passaic River is New Jersey’s (NJ) biggest crime scene.”[1] The state and federal government have focused on the Diamond Shamrock/Alkali Facility. The United State Department of Environmental Protection (EPA) recognized 80 – 120 Lister Avenue Newark, NJ as an epicenter of environmental injustice on the Passaic River in 1984, when it officially marked it as a place on the National Priorities List (NPL), demarcating it as a Superfund Site. The scale of pollution has led many reporters, such as Washington Post reporter Brady Dennis, to question “Can the EPA clean up one of America’s most toxic rivers?”. It is this doubt in the federal agency’s ability that has prompted us to research into the Diamond Shamrock/Alkali Superfund Site.

We asked in our research first who is cleaning the Passaic River. We found that the federal government (EPA, Army Corps of Engineers), the state government (NJDEP) and a local community group (CAG) have all stepped forward to address the Diamond Shamrock/Alkali Superfund Site.[2] With the community onboard and engaged, we asked what could be stopping these parties? If both the people and governments that represent them are invested into the progression of the remediation, then the issue is not between the population. This led us to identify potential responsible parties (PRP’s) and their role in remediation. We came to find that both the state and the federal government embarked on joint and separate endeavors against these parties. This seemed redundant. What interest does the state have in remediation if the EPA has already claimed responsibility to clean it up? Surely they only need to assist the federal agency in its endeavor. The administrative efforts of the EPA did not seem to appease the officials at Trenton. In discovering why the state decided to take matters into its own hands, we came across the argument that we propose today.

Both the EPA and the New Jersey Department of Environment (NJDEP) are on the frontlines of the battle, with the support of the community with them. During remediation, both the NJDEP find themselves battling against multinational corporations, local municipalities and industry giants. These are nothing new to them. They both aim to clean up the river and to have the potentially responsible parties (PRP’s) foot the bill. However, we argue that they have had varying success in finding implicated parties and holding them accountable and that this difference is indicative of the state of remediation between the state of New Jersey and the EPA. We assert that the Diamond Shamrock/Alkali Superfund site demonstrates how the New Jersey Department of Environmental Protection (NJDEP) was better positioned to hold responsible parties accountable for environmental damage than the Department of Environmental Protection (EPA).

Three sections in this essay will be needed in order to show this. One covers the unique environmental and demographic characteristics of the Diamond Alkali Superfund Site. The EPA has had to split the large site into four operable units; the Lower Passaic River Study Area (LPRSA), 80 and 120 Lister Avenue, the Newark Bay and the Extended Passaic River. It is still undergoing remediation, 26 years after the EPA announced it to be a Superfund site. By using the EJSCREEN tool provided by the EPA, we will show environmental and demographic indicators that reveal the complex playing field in which the Diamond Shamrock/Alkali Superfund Site Diamond Shamrock/Alkali Superfund Site set up for remediation administrators.

In our second section we will discuss the approach each agency has taken to litigate the matters. They share similar goals within the context of the Diamond Shamrock/Alkali Superfund Site. The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) empowers the EPA to address Superfund sites. The EPA, on behalf of the American People, has a central goal to assure places of environmental injustice are cleaned up and that the proper parties foot the bill for it. Their procedure splits Superfund remediation into three parts, remedial investigation / feasibility study, remedial design and remedial action. The NJDEP follow the Public Trust Doctrine which stipulates that “that natural resources, including lands, waters, air, and living resources, are held in trust by the State for the benefit of its citizens” (NJDEP).[3] It assists the EPA in areas specific to New Jersey. They address environmental problems on behalf of the state’s citizens. They adopted the Natural Resource Damages initiative in order to tackle PRP’s of the Diamond Shamrock/Alkali Superfund Site. They chose to take a three step legal approach in holding the proper parties accountable. They help collaborate with the EPA in remediating domestic Superfund Sites. We will show in this paper how these approaches differ and purposes for this.

In our last section, we will demonstrate what the two different approaches yielded. Here we will discuss how each agency handled litigation surrounding two PRP’s; Occidental Chemical Corporation (current successor of the Diamond Shamrock/Alkali Company) and Maxus Energy Corporations (subsidiary of Argentinian State-backed oil company YPF). Here the ability of the NJDEP and the EPA to deal with the PRP’s of the Diamond Shamrock/Alkali Superfund Site will be portrayed.

We will conclude on how all the evidence points to the NJDEP success in legal manners of the Diamond Shamrock/Alkali Superfund Site. We will briefly discuss how the positions of the NJDEP and EPA differ and whether the EPA should consider any changes to their policy to make them more effective for other Superfund Sites.

An exceptionally Dirty Diamond

The EJSCREEN provides a platform where an interest can pull environmental and demographic information from a digitally marked area within the United States of America and its surrounding territories.[4] We used this tool in order to survey the entirety of the Diamond Shamrock/Alkali Superfund Site, the map of this area is located below (figure 1). We will refer to figures 2 and 3 located below in order to showcase the data within this section. The EPA originally only dedicated the address of 80 and 120 Lister Avenue Newark, NJ as a Superfund Site in 1984.[5] The EPA decided to expand the Superfund site in 2002 to encompass a 17 mile stretch of the Passaic River, from Dundee Dam all the way to Newark Bay.[6] It was at this time that the EPA decided to split the site into four operable units. These are; the bottom 8.3 miles of the Passaic sometimes referred to as the Lower Passaic River Study Area (LRPSA), the Newark Bay, the upper 9.5 mile long Extended Passaic River Study, and the Facility located at 80-120 Lister Avenue (Diamond Shamrock/Alkali Superfund Site Superfund Page). The EJSCREEN tool allowed us to draw a buffer zone around the site and the river. Within a 1 mile buffer zone of the site, approximately 274, 233 people live in the area. We can see this in the map provided below. Within this buffer zone, we discerned three environmental indicators that signify the concentration of pollution in the Passaic River.

EJSCREEN Report (Version 2019)1 miles Ring around the Area, NEW JERSEY, EPA Region 2Approximate Population: 274,233 Input Area (sq. miles): 25.71(The study area contains 1 blockgroup(s) with zero population.)

Sites reporting to EPA

Superfund NPL    4

Hazardous Waste Treatment, Storage, and Disposal Facilities (TSDF)    27

April 07, 2020    2/3

 

The EPA’s EJSCREEN gives us three environmental indicators that reveal the extent of the pollution (see figures 2 and 3 below). These are the superfund proximity, wastewater discharge and hazardous waste proximity. Nationally, the Superfund Site is over the 80 percentile in all three categories. The Superfund Proximity is understandable. The Diamond Alkali Superfund site resides in the 99 percentile of this indicator. We see this high percentile again with the wastewater discharge, with the Diamond Alkali Site placing in the 85 percentile. This statistic is the most useful in deducing the current state of the River. It suggests that industrial facilities in North Jersey still rely on the river as a means of managing its waste. The last indicator confirms what is still sitting at the bottom of the Passaic River. The Superfund site sits at the 95 percentile of hazardous waste proximity. The high percentage of each indicator on a national scale suggests that not only are all of these indicators closely related, but that the Diamond Alkali is unique among other superfund sites in that it is in the center of a lot of waste.

(The study area contains 1 blockgroup(s) with zero population.)

One of the difficulties the EPA faces in the remediation is who is responsible for what damage. This is due to the location of 80 Lister avenue within the center of pollution that is the Passaic River. Statewide, the percentiles across the board are the same. Each is above the 80 percentile. This suggests that this area in North Jersey is the one of the most polluted areas in the state (hand Newark a medal). Diamond Alkali is within the 85 percentile of wastewater discharge, along the same lines as the national percentile. However, there is a decrease in percentile in both Superfund proximity (94%) and hazardous waste proximity (89%). This specific statistical line is perplexing. The fact that the Superfund indicator dropped from the national to the state level could be explained by the presence of multiple Superfund sites around the river. The same logic applies to the hazardous waste indicator, implying that Diamond Alkali sits at a congested point of pollution within the state.

The next stat line, dealing with just the “EPA Regional Percentile,” broke this pattern. The Superfund proximity indicator hovered close to the state and national percentile at 97%, as did the regional percentile of wastewater discharge (87). The hazardous waste proximity index dropped significantly, by about 19%, rounding out at the 68 percentile. Taken with the previous data, these indicators suggest that the Passaic River is exceptionally toxic. The Diamond Shamrock/Alkali Superfund Site ranks among national standards in over half of it’s metrics.

Figure 2

Selected Variables	StatePercentile	EPA RegionPercentile	USAPercentile
EJ Indexes
EJ Index for PM2.5	80	77	79
EJ Index for Ozone	79	75	78
EJ Index for NATA* Diesel PM	83	75	87
EJ Index for NATA* Air Toxics Cancer Risk	81	76	79
EJ Index for NATA* Respiratory Hazard Index	81	76	80
EJ Index for Traffic Proximity and Volume	89	82	89
EJ Index for Lead Paint Indicator	81	74	88
EJ Index for Superfund Proximity	94	97	99
EJ Index for RMP Proximity	93	95	93
EJ Index for Hazardous Waste Proximity	88	75	94
EJ Index for Wastewater Discharge Indicator	90	92	92

There is more. According to the map we drew with the EJSCREEN, within the 1 mile buffer of The Diamond Alkali Superfund site is at least four other Superfund Sites and 27 separate Hazardous Waste Treatment, Storage and Disposal Facilities. The Diamond Shamrock/Alkali Superfund Site is not just polluted, it is also congested. Many sites of environmental injustice overlap within the Passaic River. For both the NJDEP and EPA, sorting this out will be one of the biggest obstacles to address technically and logistically.

Demographic Indicators  allow us to gauge who the pollution affects the most (see figure 4 below). Within the 1 square mile buffer of the Diamond Alkali Superfund, 274, 233 live on the edges of the lower Passaic River. This population is special in the language its members speak. According to the linguistically isolated indicator, this population regionally resides within the 86 percentile, 88 percentile state-wide and the 93 percentile nationally. This data suggests that the majority of this population speaks one language. If the dominating language was english, it would explain the high percentiles. However, the minority population indicator hints at the diversity this area exhibits. Nationally the area is within the 76 percentile, statewide within the 72 percentile, and regionally within the 69 percentile. All of the minority indicators point to a heterogenous population. The most interesting characteristic of this population is that it does not speak the language. 59% of this population are non-english speaking people, with knowledge of only that language. The last demographic indicator worth noting is the low income population indicator. The statistics were very similar to the minority indicator. Nationally the area ranks within the 76 percentile, statewide within the 72 percentile and regionally within the 69 percentile. The majority of this population is considered unique in that this is the demographic opposite of the dominant one. The national average for the low income population is 33%, for the minority population 39% and for the linguistically isolated indicator just 4%.

Selected Variables	Value	State Avg.	%ile in State	EPARegionAvg.	%ile inEPARegion	USAAvg.	%ile in USA
Environmental Indicators
Particulate Matter (PM 2.5 in µg/m3)	8.87	8.48	77	7.88	92	8.3	67
Ozone (ppb)	44.2	45.5	13	44.4	31	43	54
NATA* Diesel PM (µg/m3)	1.01	0.696	84	0.941	60-70th	0.479	90-95th
NATA* Cancer Risk (lifetime risk per million)	36	31	90	32	60-70th	32	70-80th
NATA* Respiratory Hazard Index	0.54	0.43	88	0.47	60-70th	0.44	70-80th
Traffic Proximity and Volume (daily traffic count/distance to road)	1400	830	84	1400	74	750	86
Lead Paint Indicator (% Pre-1960 Housing)	0.58	0.41	66	0.51	54	0.28	81
Superfund Proximity (site count/km distance)	1.4	0.44	93	0.29	97	0.13	99
RMP Proximity (facility count/km distance)	2.5	0.75	92	0.58	95	0.74	93
Hazardous Waste Proximity (facility count/km distance)	8.8	5.5	89	30	68	4	95
Wastewater Discharge Indicator(toxicity-weighted concentration/m distance)	0.031	0.24	85	0.92	87	14	85
Demographic Indicators
Demographic Index	53%	34%	77	37%	71	36%	76
Minority Population	66%	44%	72	44%	69	39%	76
Low Income Population	39%	24%	78	29%	70	33%	64
Linguistically Isolated Population	20%	7%	88	8%	85	4%	93
Population With Less Than High School Education	22%	11%	85	13%	79	13%	80
Population Under 5 years of age	6%	6%	62	6%	61	6%	57
Population over 64 years of age	12%	15%	40	15%	38	15%	41

This is indeed a unique population, that it does not regularly speak English and does not earn a significant amount of money. There is also evidence to suggest that tenants are influx. 63% of all the properties surrounding the river are rented out. The property owners of these houses and developments may be insulated from the toxicity of the area because they may simply not live there. Thus the landowners that could campaign for environmental justice are possibly not aware. One can see how this population embraces many traits of a “minority” in America, the largest english-speaking country in the world (Cudoo.Com).7

The EPA did manage to reach the community when in, 2007, the Community Advisory Group (CAG) was formed.[8] They have taken the measures of developing channels of communication between EPA Administration, local Public Officials and community members themselves. They established a Community Involvement Plan in 2017 and feature a whole booklet citizens can read in order to be kept updated about news and important dates. Outside of the Community Advisory Group, Senators Corey Booker and Robert Menedez have repeatedly spoken out about the state of Passaic River, taking the torch from late Senator Frank Lautenburg (NPR).[9] The public and its representatives have been present.

The diversity of the population and the percent of rented properties hinted at another distinctive trait of the Diamond Shamrock/Alkali Superfund Site remediation. This fact is that the Diamond Shamrock/Alkali Superfund Site has multiple potentially responsible parties (PRP’s) that differ both in size and in purpose. The LPRSA, where the EPA has done first rounds of investigation, has a list of PRP’s that contain a diverse number of corporations and even public entities for the EPA’s litigation team to deal with. Within the 2017 LPRSA Community Involvement Plan’s glossary, we found a list of businesses that were willing to publicly share that they are liable to this site.[10] Huge companies such as the multinational conglomerate Honeywell Industries and the chemical producer giant such as BASF are among the list of 50+ PRP’s listed in the document. Unlike the demographic of urbanites, the demographic of PRP’s are affluent and well versed. These companies have the experience and the means to deal with liability (CIP). The NJDEP also recognized the multitude of PRP’s.

During one of the three settlements the state contested, one settlement included “261 third-party defendants — including 70 municipalities and other public entities that were sued and brought into the State’s case by Maxus Energy Corporation and Tierra Solutions, Inc.”(NJDEP Press Release).[11] Administrators from both the state and federal level would have to contend with such a wide range of parties.

We conclude that the toxic nature of the Diamond Shamrock/Alkali and the diverse population of citizens and potentially responsible parties created an adverse administrative environment for the NJDEP and the EPA to seek justice EJSCREEN indicators point to several characteristics of the Diamond Alkali Superfund Site that make remediation difficult. The lower section of the Passaic River is polluted by exceptional means, on both national and state standards. The diverse population of the Lower Passaic increases the number of parties environmental administrators have to be aware of. Both of these factors complicate remediation on both the administrative and legal tracks, and present a difficult task to the NJDEP and the EPA. This is the situation in which the NJDEP and the EPA have had to operate in. With this context, we can now turn our attention to how the NJDEP and the EPA approached remediation of the Diamond Alkali Superfund Site.

 

The “cost-recovery action” vs. The “NRD” approach

The Diamond Shamrock/Alkali Superfund site presents an intricate problem for administrators to deal with. The NJDEP and the EPA have relied on two different approaches in order to hold potentially liable parties responsible for damage of the Diamond Alkali Superfund Site. The EPA, adamant in having the right parties pay for remediation, chose to split the site technically and legally into four. The NJDEP adopted EPA’s technical approach, helping the federal agency with any of the remedial steps needed in each of these parts. They both took similar paths to resolve the matter legally, however their goals were different. The EPA sought to recover costs of remediation while the NJDEP sought to recover costs of lost value. The differences in goals and general approach are discussed below.

We will take a brief moment to describe a mechanism in which the EPA and the NJDEP use to reign in PRP’s in a settlement. This is the contribution claim, detailed in Section 113 of CERCLA. The EPA or the NJDEP will first produce an administrative order on consent. If either of the agency’s started remediation, they will send out a notice to PRP’s asking for the Superfund Trust Fund to be reimbursed for the costs of starting the remedial process. This includes the cost of the plan for clean up. If not, the order itself will detail an amount PRP’s are expected to pay. This price is negotiated. Once this price tag is settled on an administrative order on consent is complete the agency will send a notice to a PRP noting its intention to enter in a cost-recovery action. This is when private parties, such as PRP’s, are able to enact a private cost-recovery action against other liable parties that are believed to share a portion of liability, and thus share a portion of the settlement. This action is also called a contribution claim, for it describes a PRP’s intent to address other parties that have contributed to the pollution with them.

The EPA is empowered by CERCLA to identify spots of extreme pollution (Superfund Sites) and “ to facilitate the ‘timely cleanup of hazardous waste sites and to ensure that the [cleanup costs are] borne by those responsible for the contamination.’”[12] First they have to start with finding all the potentially responsible parties (PRP’s) of the operable unit. This process, which is described above, can vary in time. The EPA could go forward and cover the costs of remediation by themselves and then enact a “cost-recovery” action after the completion of the remedial step. Or they could choose to engage the PRP’s first and negotiate the costs of a certain remedial step. This puts the burden on PRP’s to find every other liable party in order to lower the total cost they have to pay. In either option the EPA drafts a budget for each one of it’s three remedial steps; remedial investigation and feasibility study (RI/FS), remedial design (RD) and remedial action (RA). The key to their remediation is the cost of the cleanup.

The EPA decided on the latter strategy in order to deal with the Diamond Shamrock/Alkali Superfund Site Superfund site. In light of numerous PRP’s, the EPA chose to engage them early within the process. The operable units one – 80 and 120 Lister Avenue – and operable unit two – The LPRSA – both had the RI/FS completed by an PRP.[13] It is important to note that these remedial steps elicit a hefty price tag. In the most recent settlement that the EPA has secured, Occidental Chemical Corporation agreed to start the remedial design step of the LPRSA for the amount of $165,000,000.[14]

The NJDEP needed a reason to go after the PRP’s of the Passaic River. Since the EPA took the helm of actual clean up and costs, the NJDEP could only help them with this endeavor. This would clean the river, but would not truly recoup the value lost. This sentiment is expressed by the New Jersey Senator Corey Booker, who stated that “The people of New Jersey can’t use what should be one of their greatest natural resources because it was stolen from them by corporate greed years ago.”[15] The State of New Jersey tried to rectify this corporate greed by starting the Natural Resource Damage (NRD) initiative. Natural Resource Damages can be defined as “the dollar value of the appropriate degree of restoration necessary to assess, restore, rehabilitate, replace or otherwise compensate for the injury to natural resources as a result of a discharge.”[16] By extending the Public Trust Doctrine, which stipulates that “certain resources . . . are preserved for public use, and that the government is required to maintain them for the public’s reasonable use.”,[17] New Jersey aimed to be able to collect damages from parties that have polluted and disturbed any of the State’s natural resources.

The NJDEP made a concentrated effort to collect damages from the toxic discharges of the DS/A. In 2003, the NJDEP issued the “Passaic Valley Directive” to prompt multiple parties to assess damages to natural resources and to provide interim reserves to compensate for their assessed damages. The full intent of this directive was announced the next year when the NJDEP announced it sought around “$950 million in NRD’s under the directive”.[18] In 2003, sixty-three parties addressed in the directive, forty of them received “Notice[s] of Potential Liability for Response Actions” from the EPA related to the pollution of the lower Passaic River.[19] The NJDEP chose to approach this collection in a three-step fashion, bringing suits to the non-discharging defendants, the third-party defendants and then Occidental Chemical Corporation.[20]

There are several differences and one similarity between the EPA and the NJDEP approach. The EPA will have to agree to a settlement for each remedial step of each operable unit. This means that the litigation team of the EPA would need to establish twelve separate settlements in order to cover the entirety of the Superfund Site. The NJDEP however, only set out three separate settlements in front of them. There are more complexities with each of these legal approaches. The EPA has a more direct way in coming up with the costs of remediation. In drafting the logistical plan in order to clean up a Superfund Site, the costs will be considered.

NRDs, which are intended “to value and compensate for the loss of ‘use’ or ‘services of a resource and not merely the cost of cleaning it up”, are harder to quantify.[21] Insurance and Legal professionals Shawn Kelly, Victoria Roberts and David Niles describe in their how evaluating an NRD is a “highly subjective exercise.”[22] A similarity between both approaches towards remediation is that each agency handled litigation first. The EPA chose this route while litigation was the only option the NJDEP could take by itself. Over the course of the Diamond Shamrock/Alkali Superfund Site remediation, these approaches garnered the results that reveal which one was more successful.

PRP’s as a Metric for Success

When we analyze the effectiveness of each agency’s approach to holding potentially responsible parties accountable for damages, we can determine which one was able to achieve its primary goal. We aim to do this by critiquing two PRP’s present in both EPA and The NJDEP settlement agreements; Occidental Chemical Corporation, the PRP currently with the most liability to the Diamond Shamrock/Alkali Superfund Site as well as Maxus Energy Corporation and its parent company YPF. In this analysis we can see that the NJDEP approach to litigation has been more successful than the EPA’s approach in holding potentially responsible parties liable for the damage they have done in the Diamond Shamrock/Alkali Superfund Site.

The Occidental Chemical Corporation has faced Superfund Liability face first.

Occidental Chemical was one of the first PRP to be addressed by the EPA and the NJDEP, for they owned the rights to the Diamond Shamrock/Alkali facility through a merger of Diamond Shamrock/Alkali and Occidental that occured in 1986, two years after it’s demarcation as a Superfund Site.[23] NJDEP submitted the first administrative order on consent that called on the chemical manufacturer to remediate 80 and 120 Lister Avenue (Operable Unite One).[24] Soon after the EPA followed up with a Consent Decree in 1989.[25]

Both the NJDEP and the EPA were able to reach agreements with Occidental further down the line. In September 2016, the EPA entered into an administrative consent decree with Occidental Chemical Corporation now known as OxyChem Corporation, for an amount of $165 million.[26] Occidental agreed to conduct the remedial design of LPRSA within this agreement and is expected to finish late in the calendar year of 2022. The EPA was successful in reigning this PRP in and continues to collaborate with them. The NJDEP also enjoyed success in negotiations with Occidental as well. Occidental was the third and last settlement that the State of New Jersey looked into. This settlement was reached in 2014. The NJDEP was able to receive $190 million dollars in NRD’s from Occidental and relieving the company from any liability from the state.[27] A portion of this settlement is set to cover the State of New Jersey’s portion of the total cost of cleanup of the Diamond Shamrock/Alkali Superfund Site.

Here we see a cooperating PRP that is on two different timelines. With the settlement agreed to in 2014, Occidental redeemed all the liability the NJDEP held over it. The NJDEP ended it’s battle for damages two years before the EPA’s most recent settlement. The chemical manufacturer is not so lucky with the federal agency’s litigation. The EPA still has over half of the project to plan and settle. The EPA states that “this settlement agreement will start the cleanup of the largest environmental dredging project in the history of the federal Superfund program.”[28] Occidental, currently the owner of the DS/A, can expect to hold a share of the workload to come.

We see the success of both approaches diverge in settlements with Tierra Solutions Inc. a subsidiary of Maxus Energy Corporation. Maxus Energy Co. is a subsidiary of Argentina state-owned oil company, YPF.[29] The NJDEP reigned this PRP in for liability. In two separate settlements, New Jersey held the parent company and the subsidiary responsible for damages in 2013.[30] The first settlement, totaling $130 million, was paid mostly by YPF. The second settlement – totaling in $35.4 million however, the one with third-party defendants, was settled between 261 (70 if which were municipalities and public entities) different parties, including Maxus Energy Corporation.[31] In settling with YPF and its subsidiary, NJDEP did help it’s subsequent successful case against Occidental Chemical Corporation.

The EPA, however, did not get the same chance to hold YPF or its subsidiary liable for remediation. Tierra Solutions initially signed an Administrative Consent On Order in order to help remediate Operable Unit 1 of the Diamond Shamrock/Alkali Superfund Site, conducting an immediate removal of hazardous substance right in front of the facility. However, since this announcement in 2008, Tierra Solutions Inc received heat for the actions of its parent company. In 2016, Maxus Energy Co. filed for bankruptcy around the same time the EPA came out with an announcement regarding the scope of the Diamond Shamrock/Alkali Superfund Site remediation.[32]

This filing truly is worrisome for the EPA. They are essentially dealing with an extension of a sovereign government. Due to the United States Bankruptcy Code, PRP’s cannot file contribution claims to a bankrupt PRP’s. Maxus Energy Co. was able to dodge negotiations completely. By draining the funds out of the subsidiary and applying for bankruptcy, YPF effectively dodged any liability PRP’s and the EPA would wish to hold it to.Public officials have come out in public to speak on the corporation’s liability within the Diamond Shamrock/Alkali Superfund Site.[33] The Senators of New Jersey have gone so far as to send a letter to Foreign Embassy of the Argentine Republic requesting a meeting in order to discuss the matter. Even Occidental Chemical Corporation, the exemplary PRP, has called out for Maxus Energy to be held liable with regards to the Passaic River. Despite calls, the EPA finds itself at the mercy of diplomacy in this matter.

Settlement agreements with Occidental Chemical Corporation reveal how different the timetables are between the EPA and NJDEP. The NJDEP was able to collect all of the natural resource damages (NRDs) from all of the parties it intended to. Over 250 parties were held accountable for $355.4 million of damages. The EPA is still identifying each PRP associated with the Diamond Shamrock/Alkali Superfund Site and a proper amount needed for each step of remediation. This leaves Occidental still on the hook. On the other hand, Maxus Energy Corporation and its parent company, YPF show the difference time makes in negotiating settlements. Both the EPA and NJDEP were aware that Maxus Energy Corporation was a PRP. They already entered and completed a settlement agreement with Tierra Solutions Inc. one of Maxus Energy Co. subsidiaries. However their claim for bankruptcy is what is currently what is shielding them from additional liability.

Conclusion

How is it that the state agency was able to settle with a PRP that avoided the EPA? We assert that the reason is time. The NJDEP has always been closer to the problem. They were the first agency to file an administrative consent order over the pollution found at the DS/A. They were able to address the problem quicker than their federal counterpart. This may give the average New Jersey citizen a sense of pride in the morning. It also should give citizens alarm that state agencies are moving faster and more efficiently than the federal entity explicitly tasked to remediate sites of extreme pollution. We consider some reasons why the EPA lags behind them below.

The EPA is currently constrained in dealing with the Superfund Site. Due to its duty to lead the physical remediation of the Superfund Site, it set up its legal approach to PRP’s similar to the technical approach to clean up the river. As mentioned before, The EPA needs at least 12 settlement agreements in order to address each remedial step for each of the four operable units. This would not be an obstacle if the EPA was able to effectively use the “cost-recover” action in its favor. However, the “polluters pay tax”, the tax set up by CERCLA to supplement the Hazardous Substance Superfund expired in 1995.[34] The United States Government Accountability Office offers some insight into the importance of this tax. This tax accounted for “68% of trust fund revenues” from the timespan of 1981 – 1995.[35] From 1995 – 2007, this dropped to “6% of trust fund revenues.”[36] This lack of funding has forced the EPA to get PRP’s to pay and conduct remediation. This relationship sets the EPA to rely on PRP collaboration in order to push progress in remediation. All of these factors and more may contribute to the EPA’s ability to clean up Superfund Sites.

The Diamond Shamrock/Alkali Superfund site is considered to be one of the largest remediation projects the EPA has started. It certainly is the biggest site the NJDEP has encountered. Considering that the EPA supersedes the jurisdiction of NJDEP, it is novel that the state agency has met more success in potentially responsible parties (PRP’s) accountable. This is not to say that holding PRP’s accountable is the only thing needed in order to address sites of extreme pollution. However, each agency took an approach that put the settlement of damages and costs of remediation in a crucial position. They ventured through the same adverse environment and addressed partners liable to the same Superfund Site. The EPA interest is explicit in the Diamond Shamrock/Alkali Superfund Site, however the State seems to be leading the charge of justice for the citizens surrounding the Lower Passaic River. From the evidence above, it is clear to see that the NJDEP has had more success in collecting funds for remediation from the PRP’s than the EPA.

Endnotes

1. https://www.nj.com/news/2019/07/the-passaic-river-is-njs-biggest-crime-scene-booker-blasts-epa-over-pollution-progress.html
2. https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.contacts&id=0200613
3. https://www.nj.gov/dep/nrr/doctrine.htm
4. “EJSCREEN: Environmental Justice Screening and Mapping Tool”. (United States Department of Environmental Protection. May 2, 2020.)
5. U.S. Department of Environmental Protection. (Office of Superfund Remediation and Technology Innovation. Region 2. Record of Decision Declaration: Diamond Shamrock Superfund Site. September 30, 1987.)
6. U.S. Department of Environmental Protection. Emergency and Remedial Response Division. Region 2. Administrative Settlement Agreement and Order on Consent for Remedial Investigation / Feasibility Study: Lower Passaic River Study Area Portion of the Diamond Alkali Superfund Site. May 8, 2007.
7. Richard Brooks. “Which Countries Have the Most English Speakers”. K-International. February 27, 2017.
8. Sarah Lerman-Sinkoff ”Reclaiming the River for the People – The Lower Passaic River Community Advisory Group” Lower Passaic River Urban Waters Federal Partnership (PDF). (n. d.). May 2, 2020.
9. Scott Gurian. “As Tax Expires, EPA struggles to Clean up Superfund Sites”. National Public Radio: WNYC Radio.August 6, 2010.
10. Louis Berger. “Community Involvement Plan for the Lower Passaic River” United States Department of Environmental Protection. July 08, 2017.
11. New Jersey Department of Environmental Protection. “COURT APPROVES FINAL SETTLEMENT IN PASSAIC RIVER LITIGATION; OCCIDENTAL CHEMICAL TO PAY $190 MILLION TO RESOLVE LIABILITY”. New Jersey Department of Environmental Protection. December 17, 2014.
12. Brianna E. Tibbet. “Reinstating CERCLA Polluters Pays Statute with the Circuit Courts Mutually Exclusive Approach”. Vermont Journal of Environmental Law. (n. d.).
13. “Superfund Site: Diamond Alkali Co. Newark NJ.” Department of Environmental Protection. April 20, 2020.
14. U.S. Department of Environmental Protection. Office of Enforcement and Compliance Assurance. Case Summary; $165 Million Settlement to Start to Cleanup Work on the Passaic River in New Jersey.
15. Michael S. Warren. “The Passaic River is N.J.’s biggest crime scene’: Booker blasts EPA over pollution progress”. New Jersey Environment News. July 22, 2019.
16. John G. Nevius and John N. Ellison. “Natural Resource Damages, You should be Covered.” Environmental Claims Journal 15, no. 4 (2003): 427-435.
17. “Public Access” New Jersey Department of Environmental Protection. January 27, 2020. https://www.nj.gov/dep/cmp/access/index.htm
18. Kelly, Shawn, Victoria H. Roberts, and David A. Niles. “New Jersey’s Natural Resource Damages Initiative: Is the “Sleeping Giant” Waking Up?[Dagger].” FDCC Quarterly 56, no. 3 (Spring, 2006): 345-398.
19. Et. al
20. New Jersey Department of Environmental Protection. “COURT APPROVES FINAL SETTLEMENT IN PASSAIC RIVER LITIGATION; OCCIDENTAL CHEMICAL TO PAY $190 MILLION TO RESOLVE LIABILITY”. New Jersey Department of Environmental Protection. December 17, 2014.
21. Kelly, Shawn, Victoria H. Roberts, and David A. Niles. “New Jersey’s Natural Resource Damages Initiative: Is the “Sleeping Giant” Waking Up?[Dagger].” FDCC Quarterly 56, no. 3 (Spring, 2006): 345-398.
22. Et. al
23. U.S. Department of Environmental Protection. Emergency and Remedial Response Division. Region 2 Fourth Five-Year Review Report: Diamond Alkali Superfund Site Essex County, New Jersey. June 23, 2016.
24. Et. al
25. Et. al
26. Erin Delmore. “EPA Secures $165M Settlement for Passaic River Cleanup”. New Jersey TV Online, October 7, 2016.
27. New Jersey Department of Environmental Protection. “COURT APPROVES FINAL SETTLEMENT IN PASSAIC RIVER LITIGATION; OCCIDENTAL CHEMICAL TO PAY $190 MILLION TO RESOLVE LIABILITY”. New Jersey Department of Environmental Protection. December 17, 2014.
28. U.S. Department of Environmental Protection. Office of Enforcement and Compliance Assurance. Case Summary; $165 Million Settlement to Start to Cleanup Work on the Passaic River in New Jersey.
29. States News Service. “BOOKER, MENENDEZ RAISE CONCERNS OVER PASSAIC RIVER POLLUTER’S BANKRUPTCY FILLING LAWMAKERS DRAW ATTENTION TO ACTIONS TAKEN BY ARGENTINA’S STATE-OWNED OIL COMPANY YPF YPF SUBSIDIARY IDENTIFIED AS HAVING SUBSTANTIAL ENVIRONMENTAL LIABILITIES IN THE CLEANUP OF THE PASSAIC RIVER”. States News Service. May 26, 2017 Friday.
30. New Jersey Department of Environmental Protection. “COURT APPROVES FINAL SETTLEMENT IN PASSAIC RIVER LITIGATION; OCCIDENTAL CHEMICAL TO PAY $190 MILLION TO RESOLVE LIABILITY”. New Jersey Department of Environmental Protection. December 17, 2014.
31. Et. al
32. States News Service. “BOOKER, MENENDEZ RAISE CONCERNS OVER PASSAIC RIVER POLLUTER’S BANKRUPTCY FILLING LAWMAKERS DRAW ATTENTION TO ACTIONS TAKEN BY ARGENTINA’S STATE-OWNED OIL COMPANY YPF YPF SUBSIDIARY IDENTIFIED AS HAVING SUBSTANTIAL ENVIRONMENTAL LIABILITIES IN THE CLEANUP OF THE PASSAIC RIVER”. States News Service. May 26, 2017 Friday.
33. States News Service. “BOOKER, MENENDEZ RAISE CONCERNS OVER PASSAIC RIVER POLLUTER’S BANKRUPTCY FILLING LAWMAKERS DRAW ATTENTION TO ACTIONS TAKEN BY ARGENTINA’S STATE-OWNED OIL COMPANY YPF YPF SUBSIDIARY IDENTIFIED AS HAVING SUBSTANTIAL ENVIRONMENTAL LIABILITIES IN THE CLEANUP OF THE PASSAIC RIVER”. States News Service. May 26, 2017 Friday.
34. Tibbet, Brianna E. “Reinstating CERCLA Polluters Pays Statute with the Circuit Courts Mutually Exclusive Approach”. Vermont Journal of Environmental Law. (n. d.).
35. United States Government Accountability Office. Funding and Reported Costs of Enforcement and Administration Activities.GAO-08-841R. Washington D.C.July 18, 2008.
36. Et. al

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