The Jersey City Independent"

On Feb. 19, the city and the state announced, to great fanfare, that it had reached a settlement with PPG Industries, Inc. to clean up chromium along Garfield Avenue. “TOXINS BE GONE” screamed the headline on the next day’s Jersey Journal.

“This settlement will give residents the peace of mind and better quality of life that comes with a cleaner, healthier neighborhood,” acting Department of Environmental Protection (DEP) commissioner Mark Mauriello said in a press release.

But as the settlement entered a one-month public comment period this week, many community members and environmental advocates say it isn’t tough enough, and some are continuing their own fights against what they call a rogue polluter.

Chromium’s Dirty Legacy

The chromium plant located on Garfield Avenue began operation in 1924, refining raw chromium ore into paint pigment and other items 24 hours a day. PPG purchased the facility in 1954 and ran it until its closing in the fall of 1963. Since then, it has sat largely untouched, a toxic hazard for the Jersey City residents who live or work near it.

Nearly three million tons of chromium ore processing residue (COPR) was produced at Hudson County’s three plants (one was located in Kearny), according to the DEP. Much of this COPR was given away to developers to use as fill material during construction in the 1950s and 60s.

The COPR produced by the sites includes chromium of the trivalent and hexavalent kind. Hexavalent chromium is known to cause lung cancer in humans, and has been linked to other types of cancer, including nasal, stomach and blood, in a number of studies. Trivalent chromium is more common, and while many consider it “safe,” many scientists say it can — and does — convert to hexavalent chromium in nature. A recent study by the state DEP found that the rate of lung cancer incidence near chromium sites was 7-17 percent higher than in other areas of Jersey City.

Joe Morris is a veteran of local battles over chromium. As the director of the chromium cleanup project for the Interfaith Community Organization (ICO), he has fought to implement strict environmental standards for chromium cleanups in Jersey City. Most notably, a lawsuit won by ICO in 2003 forced Honeywell International Corporation to commit $400 million to clean up a 34-acre site along the Hackensack River banks, where companies dumped the same toxic waste as on Garfield Avenue.

In early February, ICO, along with the Natural Resources Defense Council (NRDC) filed a citizens’ lawsuit against PPG in federal court to compel the cleanup of the Garfield Avenue site.

“We were really hoping that the city’s agreement would put [our lawsuit] out of business,” Morris says. “It looks like it won’t.”

Calling the settlement “toothless,” Morris says that “other than a five-year goal, it has no timetable, no sanctions, no penalties.”

NRDC attorney Nancy Marks agrees.

“After 25 years of not cleaning up, there’s nothing in the settlement that shows us the cleanup will actually go forward,” she says.

Jersey City’s lead attorney Bill Matsikoudis says that notion is false, noting that a more detailed schedule will be put together once the settlement is formally adopted.

“This is not a remedial action work plan,” he says. “It sets up a procedure.” He adds that any of the parties can also go to court if one is not holding up its end of the bargain.

The settlement, jointly negotiated by the city and the state, calls for PPG to remediate the Garfield Avenue contamination “as expeditiously as possible with a five-year goal for completion” and pay $1 million into the city’s Environmental Trust Fund. In turn, that money must be used “to fund an environmentally beneficial project, such as the acquisition of property for open space or the development and/or improvement of a public park.”

Both Marks and Morris say that the current proposed settlement is weaker than an agreement already in place.

“It actually weakens the environmental cleanup,” Morris says. A 1990 Administrative Consent Order (ACO) issued by the DEP had real enforcement measures, he notes. For example, if PPG fell behind in the cleanup, the DEP could assess penalties under the ACO.

So what happened?

According to Morris, PPG and the other chemical companies’ intense lobbying efforts to change state cleanup standards, well-documented by the Star-Ledger five years ago, “sapped the will of the DEP” to enforce the 1990 ACO. Former DEP case manager Frank Faranca told the Star-Ledger in 2004 that the companies used a variety of stalling tactics, like submitting flawed plans and dragging out cleanups while waiting for standards to become more lax.

“The legal instrument was never the problem,” Morris says. “The will was the problem.”

Matsikoudis says that this settlement “is far superior to the ACO,” in part because it will be “an enforceable court order,” but Morris is quick to point out that the ACO was also “explicitly enforceable in court.” The problem, he says, was that the state never went to court to enforce it, and when it did, PPG deflected enforcement orders.

Community Groups Also Wary

Morris and the NRDC aren’t the only ones up in arms over the proposed settlement.

“Jersey City is selling out the current and future residents of Ward F for $1 million,” Robert Harper says. As the director of the Garfield Avenue Chromium Coalition, Harper has been following the potential settlement with great interest.

“PPG doesn’t want to really clean it up,” he says. “They’ve played games in court and with the DEP for decades. It’s beyond criminal.”

He compared the lack of action by PPG to combat the toxic chromium to the infamous U.S. Public Health Service studies on poor Southern blacks that studied the effects of syphilis.

“We’ve got a modern-day Tuskegee Experiment going on in Ward F,” he says. “There should be people running around in hazmat suits over here.”

Ed Vergara of the community group known as GRACO (Garfield, Randolph, Arlington, Clerk, Claremont, Carteret, and Ocean) agrees that more action needs to be taken. He says the settlement is “bogus,” which is why his organization retained environmental lawyer Stuart Lieberman to look into its own course of legal action.

Earlier this month, Lieberman and GRACO announced they were filing suit in state court to expedite the cleanup, but after a meeting with officials from the city, the DEP and PPG on Monday, Lieberman says he is putting the suit on hold for 30 days.

“The city deserves credit” for doing something at the site after so many years of no action, he says. He is hoping to work some of the things he and GRACO are looking for — like more extensive medical monitoring of residents close to chromium sites and guarantees that the settlement money go to the community around 900 Garfield Ave. — into the city’s settlement during the 30-day public comment period.

Matsikoudis says that some medical monitoring is already in place (see related blog post), but he “remains open to a more expansive medical monitoring procedure.” He also says the city “will negotiate with the communities on how to distribute the funds,” adding that he “tried like hell” to get the city more than $1 million but faced an uphill climb considering the current economic conditions.

Morris, who also met with the city, the DEP and PPG on Monday, left the meeting less optimistic than Lieberman.

“I didn’t hear anything that was reassuring,” he says. “The refrain was ‘trust us.’ After this many years, ‘trust us’ is not a strategy.”

A Question of Standards

Even if the Garfield Avenue site is cleaned up in a timely manner in accordance with state DEP guidelines — a big if, according to critics — some argue that still may not be good enough for public health.

The DEP no longer has statewide cleanup standards, but relies on site-specific standards based on how much chromium is deemed to be present at a given site.

Matsikoudis says that the Garfield Avenue site will be cleaned up to the standard of no more than 20 parts-per-million down to 20 feet, a standard put in place by former DEP head Lisa Jackson. He adds that it will include no capping — the practice of simply “covering up” chromium waste by various mechanisms.

Morris says that 20 feet down is not nearly enough, because there are “very high levels of chromium below that at the Garfield Avenue site.”

Proper cleanup of the site is especially important, Harper notes, because the recently-approved Canal Crossing Redevelopment Plan Area includes residential zoning at the Garfield Avenue site that is the epicenter of the chromium problem.

For now, the city and the state have tapped former Environmental Protection Agency deputy administrator W. Michael McCabe as the site administrator for Garfield Avenue.

McCabe says that while he’s “inclined to take the job,” he wants to “gauge the level of community support” before formally accepting the offer.

“I’ve seen communities where they’re never able to get beyond the oppositional politics that paralyzes movement forward,” he says. “If that’s what this is about, life’s too short.”

McCabe explains that he understands residents’ frustrations — after all, they’ve seen a toxic site sit untouched for decades. He simply hopes that people are willing to work constructively towards the end goal of cleaning up the site.

He says he has full confidence that the settlement will end in a thorough and safe cleanup.

“I wouldn’t take the position unless I thought that was absolutely the case,” he says. “I’m not going to put my reputation on the line to do a halfway job.”

While admitting that McCabe comes to this task with an impressive history, Morris argues that in the end, it doesn’t really matter.

“A resume is not a cleanup plan,” he says. “It’s neither here nor there.” He notes that former U.S. Sen. Robert Torricelli has done a “very good job” as the court-appointed special master of the Honeywell site, despite having no experience in environmental cleanup.

For Garfield Avenue, Morris says the plan — not the person administering it — is what is important, and in its current form the plan is just too vague.

“You could have Barack Obama as the site administrator,” he says, “and we don’t know if anything would happen.”

---

As we mentioned above, the settlement is currently in a 30-day public comment period, which will end on April 15. There is also a scheduled public meeting on the topic on Monday, March 30 at 7 pm at City Hall. If you wish to comment, you can mail your thoughts to: Thomas Cozzi, Assistant Director, NJDEP, 401 East State St., PO Box 028, Trenton NJ 08625.

After the public hearing, the settlement will have to go to the City Council for approval.  “When that happens depends upon the level of public comment and potential modification to the document,” Matsikoudis says. “If we collectively agree to make changes based upon public comment, that drafting period may take a while.”

Like what you've read here? Please consider making a donation or becoming a sustaining member. As a grassroots news organization, we rely on community support -- as well as paid advertising -- to survive.