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A federal judge has ruled that a coalition of local groups and environmentalists can continue a federal lawsuit to push for stricter cleanup of chromium contamination in Jersey City than the cleanup called for in last year's multi-party settlement and consent judgment.

PPG Industries, the Pittsburgh-based company that left behind toxic hexavalent chromium at its former manufacturing site at 880 Garfield Ave., had asked the judge to dismiss the federal suit, arguing that the company's settlement with the state Department of Environmental Protection (DEP) and Jersey City was good enough and preempted any other cleanup efforts.

But the parties to the federal suit -- the national nonprofit Natural Resources Defense Council (NRDC) and local groups Interfaith Community Organization (ICO) and GRACO -- argued all along that they had the right under the federal Resource Conservation and Recovery Act (RCRA) to pursue stricter cleanup standards than the consent judgment called for.

The judge agreed.

"Although the Consent Judgment addresses the same concern which underlies Plaintiffs’ suit here -- hazardous waste at the Garfield Site -- it does not provide for all of the remedies that Plaintiffs seek, or that this Court may provide," U.S. District Judge Joseph Greenaway wrote in a 33-page ruling handed down Friday.

The judge also declined to grant PPG a stay in this matter until the cleanup governed by the consent judgment is complete; a process that will take at least five years, according to all involved.

"Such a lengthy stay would defeat the purpose of an environmental provision seeking to remediate imminent and substantial endangerment and run contrary to this Court’s unflagging obligation to exercise its jurisdiction," the opinion reads.

"He recognizes that a federal court could call for a broader cleanup, and that state standards might be insufficiently protective," NRDC attorney Nancy Marks says, adding that the latter is the point her coalition has been making all along.

"If the state remedy were good enough, we wouldn't have brought the lawsuit," she says.

Her point is echoed by GRACO's Felicia Collis.

"The settlement agreement between PPG and Jersey City fails to guarantee adequate cleanup with high protective standards," she says, adding that the neighborhood group appreciates the judge's decision and the support of the NRDC. "This is an opportunity for our concerns to undergo judicial review."

A Question of Standards

Under the consent agreement, PPG agreed to clean up the hexavalent chromium to standards set by the DEP. The agency's current standard is 20 parts per million (ppm) or less of chromium, at levels down to 20 feet.

"The Consent Judgment requires that PPG remediate chromium levels to DEP’s current standard of 20 ppm, but this Court could potentially, for instance, order remediation to a standard lower than 20 ppm," Greenaway's ruling reads.

The judge specifically points to a recommendation from the DEP's own Division of Science, Research and Technology (DSRT), which argues that the standard be much more stringent, to a level of 1 ppm.

While Jersey City corporation counsel Bill Matsikoudis, a key negotiator in the PPG settlement, has repeatedly stressed that the 1 ppm standard will govern the cleanup if adopted, critics say the DEP's track record -- and its apparent attempt to prevent the 1 ppm recommendation report from being publicly released -- casts serious doubt that the standards will ever be strengthened. (In June of last year, the DEP announced it would develop “final standards” for chromium cleanups by 2011.)

As one of several angles PPG took to get the case tossed, the company also argued that NRDC, ICO and GRACO were, in essence, suing for the wrong reasons, and simply trying to attack the DEP and the consent decree.

But the judge ruled that argument "merely seeks an 'end run' around the RCRA citizen suit."

Greenaway acknowledged that PPG is in part correct when it argued that the groups were attacking the DEP's past actions and cleanup standards, but said that, in some ways, that is the whole point of the federal law.

"This [is] the very nature of an imminent and substantial endangerment citizen suit: it allows citizens to seek judicial remedies where, allegedly, an agency has failed to protect people or the environment from danger," the ruling reads. "To abstain on the basis of collateral attack here would defeat Plaintiffs' statutory right to a citizen suit."

Going Forward

PPG now finds itself in a sticky situation. It is obligated under the consent order to clean the chromium sites, but it could potentially be on the hook for additional remediation -- at what would likely be a steep cost -- down the road if it loses the federal suit.

A spokesman for PPG says the company "has received and is evaluating" the decision, and that it "will continue to satisfy its remedial obligations" in Jersey City.

The Healy administration, meanwhile, says it is "not surprised" by the ruling, but stands by the judgment it negotiated as the best path forward.

"We are absolutely convinced that with the guidance of the site administrator and the DEP, that the consent judgment is the best way to provide for an expeditious and thorough cleanup of the Garfield Avenue site and the other PPG sites," says Mayor Healy spokeswoman Jennifer Morrill. "While we are still digesting the court's opinion, the survival of the NRDC lawsuit may have a positive role in providing a greater sense of urgency in the chromium cleanup."

While the NRDC's Marks is pleased with the judge's decision, she acknowledges that it is "just round one of many, many rounds" in their legal battle, which could still stretch out for several years.

Still, she says that with this ruling now forming the baseline of how the case will proceed, a tide may be turning.

"It feels like justice to me," she says.

To read the judgment, click here.

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