The cleanup agreement, which is estimated to cost PPG up to $600 million and remove an estimated 700,000 tons of chromium waste from the area around the company’s former chromium plant, stems from a citizens’ lawsuit filed in 2009 by the Natural Resources Defense Council (NRDC), Interfaith Community Organization (ICO) and GRACO Community Organization (GRACO). PPG had twice previously tried to have the advocates’ suit tossed from court, to no avail.

The groups have long claimed that the city’s 2009 settlement with PPG and the state Department of Environmental Protection is not stringent enough.

“What could have been a Swiss cheese approach to the cleanup is now a comprehensive removal of the contamination — no holes to be found,” says NRDC senior attorney Nancy Marks. “This Jersey City community should never have been stuck living on top of someone else’s toxic waste in the first place. They’re finally receiving the justice they deserve and will be soon free from this poisonous legacy.”

Specifically, the new federal settlement calls for chromium levels to be reduced to 5 parts per million (ppm), a much stricter standard than New Jersey’s current standard of 20 ppm, which was guiding the existing cleanup plan.

In addition, PPG will fund a community-hired expert to monitor the cleanup process and test residential properties near the site upon request and clean up any contaminated properties to the 5 ppm level. And the advocates also note that the federal deadlines brought by this settlement add an extra layer of protection, since the state DEP has in the past failed to act on cleanup plans at the site.

However, the Healy administration, which brokered the 2009 settlement between Jersey City, PPG and the state, is choosing to frame this week’s federal settlement in quite a different light, in an attempt to reiterate its repeated claim that the current cleanup plan is stringent enough.

“We are pleased that the NRDC and GRACO are endorsing our settlement with PPG and the DEP that requires PPG to dig up and remove the chromium waste at Garfield Avenue at PPG’s expense,” Mayor Jerramiah Healy says in a statement. “We have no problem with another layer of review of PPG’s cleanup, as long as it does not delay our goal of finishing the cleanup by 2014.”

Like Healy, the state Department of Environmental Protection is downplaying the federal settlement, with a spokesperson telling the New York Times this week that “it doesn’t get much better” than the cleanup plan already in place.

The federal settlement was submitted to the court this week and will become final when signed by a judge. It does not prevent a class-action lawsuit against PPG from going forward.

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. Until the past few years, it had sat largely untouched, a toxic hazard for the Jersey City residents who happened to 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. One study by the state DEP found that the rate of lung cancer incidence near chromium sites was 7 to 17 percent higher than in other areas of Jersey City.

“This is a victory for public health, for environmental justice, and for the rebirth of an area that’s been a wasteland for a half century,” says Rev. Willard Ashley, pastor of Abundant Joy Community Church and co-chairperson of the Interfaith Community Organization. “This is a victory that will mean more jobs and less cancer in Jersey City.”

PPG’s Federal Settlement for Chromium Cleanup in Jersey City

PPG Industries has now agreed to excavate and remove an estimated 708,000 tons of chromium waste and contaminated soil from Garfield Avenue, the state Department of Environmental Protection (DEP) and Jersey City announced today.

PPG and the DEP had previously left up in the air whether they would pursue a full excavation or instead implement targeted excavation and treatment, a process that was roundly criticized as insufficient by environmental groups and some area residents.

The new plan for the site is outlined in a progress report filed Tuesday by court-appointed site administrator W. Michael McCabe with Hudson County judge Thomas Olivieri.

“After months of first-hand experience at the site, it became even more clear that we should go straight to the cleanup approach most favored by the community and Jersey City: Simply stated, dig it all out and haul it away,” McCabe says in a statement. “I am very pleased that PPG has selected this approach and that DEP has approved it. This has the best chance of meeting our shared goal of a complete remediation by the Fall of 2014, and I look forward to discussing the details of this agreement with the community.”

The site had sat untouched for years despite a 1990 order to begin cleanup until Jersey City, the DEP and PPG entered into a settlement agreement in February 2009. Since then, interim remediation and capping has been put in place to remove the most toxic chromium and protect the area from being further exposed to contamination.

The full excavation phase is expected to begin in the fall of 2011, according to McCabe’s report.

The new plan calls for PPG to excavate and remove all chromate waste to a minimum depth of 20 feet, or until excavation reaches a natural barrier of clay-like material called a “meadow mat.” The company’s preliminary studies indicate that most of the contamination is above the meadow mat.

In addition, PPG will construct an on-site plant to treat contaminated water generated at the site, and will monitor dust and take suppression action with a goal of having no visible dust leaving the site at any time.

“We are pleased that the settlement agreement and cooperation of the DEP, site administrator McCabe and Judge Oliveri has led PPG directly to an excavation course of action,” Jersey City corporation counsel William Matsikoudis says. “[This] will lead to the thorough and expeditious remediation that the community deserves.”

His comments were echoed by DEP officials.

“This plan is a major step forward for people who live near the Garfield Avenue site who have had to live with these wastes buried in their midst for far too long,” DEP acting commissioner Bob Martin says in a statement. “The DEP has been working very hard toward a remediation plan that is mindful of residents’ concerns about this site.”

However, as we’ve reported, it was at least in part the DEP’s failure to enforce the initial order that allowed the site to languish for decades untouched.

The lack of action by state regulators was what spurred the environmental group Natural Resources Defense Council (NRDC) and local group the Interfaith Community Organization (ICO) to file a federal lawsuit in January 2009 to push for a stringent cleanup of the site. (They were later joined in the suit by the neighborhood group GRACO.)

Specifically, the groups have been pressing PPG to excavate and remove all of the chromium-contaminated industrial waste to a safe standard, identify and permanently remediate all the chromium-contaminated soil and groundwater in the area, to test all residential properties in the area and remediate them as needed, and to have a plan that could be enforced by a federal court.

“The PPG work plan announced today by New Jersey DEP would, if implemented, go a long way towards achieving our first goal,” ICO says in a statement. “We will continue to pursue all of these goals in order to protect the health of people in Jersey City.”

The groups have maintained since the beginning that if the cleanup plan were to address their concerns, they would see no need to continue with their own suit.

The new plan seems to be a step in that direction.

“We believe it is clear that our litigation is having a positive effect,” ICO says in its statement.

“This Thanksgiving, residents of Jersey City are grateful for the work of ICO, GRACO and especially the legal staff of the Natural Resources Defense Council for finally getting PPG Industries to begin taking its cleanup responsibilities seriously,” says Rev. Willard Ashley, co-chairperson of ICO and pastor of Abundant Joy Community Church.

The groups — national nonprofit Natural Resources Defense Council (NRDC) and local groups Interfaith Community Organization (ICO) and GRACO — are pushing for stricter cleanup standards than those called for in last year’s multi-party settlement and consent judgment between PPG, the state Department of Environmental Protection (DEP) and Jersey City.

PPG, in arguing for reconsideration, claimed that there was new evidence available that might have changed the decision; namely the current implementation of the consent judgment at the Garfield Avenue chromium site.

But Judge Garrett E. Brown, Jr. wasn’t convinced, instead agreeing with the coalition of groups that, as he writes, “the evidence PPG advances is immaterial and is not new.”

While the cleanup effort is beginning its first phase this summer, it is expected to take several years. With the judge dismissing both PPG’s motion to reconsider and motion for interlocutory appeal of the earlier decision, it appears the federal case, barring any unforeseen developments, will likely get rolling in the next few months.

Memo Denying Motion for Reconsideration in PPG Federal Case

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.

GRACO’s members had hoped the settlement would quell its concerns about the cleanup, and the group’s leaders and attorneys worked with city and state officials through the settlement process to ask that specific measures be included in the final document. But they remain unconvinced that the settlement is the best way to protect public health.

“GRACO has concluded that the best and fastest way to protect the health of residents in this neighborhood is to join ICO and NRDC in their federal lawsuit,” Felicia Collis, the group’s president, says. “State and local government have allowed our rights to be violated by PPG. Through this lawsuit, we are demanding that those rights be assured.”

The lawsuit, filed this February in federal district court in Newark, is brought under the citizens’ suit provision of the federal Resource Conservation and Recovery Act. The court is slated to receive PPG’s response to the suit tomorrow.

Jersey City corporation counsel Bill Matsikoudis stands by the settlement he helped negotiate, and says there’s no reason to think ICO and NRDC are the only groups who can force PPG to implement a proper and thorough cleanup.

“[They're] saying they are the only entities to trust to ensure the cleanup, as if the city, [state] attorney general, DEP, [site administrator] Mike McCabe and Judge Olivieri should not be trusted,” he says. “Our agreement is now a court order that requires PPG to remediate the 20 sites to the strictest standards in the country pursuant to a five-year schedule.”

But the parties to the federal suit maintain that the settlement still fails to guarantee a permanent and protective cleanup of the site.

“This settlement is an attempt to put a new sell-by date on a package that spoiled years ago,” ICO chromium cleanup project director Joe Morris says.

“New Jersey already has the nation’s most protective policy in place for the cleanup of soil contaminated with hexavalent chromium, but we need permanent standards,” acting DEP commissioner Mark Mauriello says in a release. “The principles of sound science as well as state law dictate that we conduct a full evaluation before adopting final standards. We will begin the process of setting final cleanup standards for chromium at the start of next year.”

The press release issued today continues the DEP’s blackout of recommendations made by its own scientists, who said in April that the cleanup standard for hexavalent chromium in soil should be to 1 parts per million (ppm). The scientists’ report, which was based on a federal toxicology study of mice and rats, has not yet been posted on any DEP chromium website. As we reported today, under the department’s new guidelines regarding public information, the recommendations would also no longer be publicly available. The DEP’s current standard for cleanup is 20 ppm down to 20 feet.

NJ Sierra Club director Jeff Tittel was quick to criticize the DEP’s “decision,” calling it a “shameful act” that sells out Jersey City residents.

“The DEP is taking the side of special interests over the public health and safety of the people of Jersey City and Hudson County. More studies and delays mean more toxic chromium getting into out communities and families,” he says. “The Gold Coast is really the chrome coast, and DEP decision is toxic to all of us.”

A memo leaked out of the New Jersey Department of Environmental Protection (DEP) earlier this month amounts to a “gag order on environmental scientists,” critics contend, while open government advocates say the DEP is going too far in restricting information. The DEP, however, says the critics’ allegations are baseless.

The memo in question, written on June 1 by DEP director of policy, planning and science Jeanne Herb, lays out guidelines for employees on the disclosure of technical and scientific reports. It comes hot on the heels of the April release — via the state Open Public Records Act (OPRA)  — of a risk assessment (full report here) from DEP scientists that called on the department to implement drastically tighter cleanup standards for the toxic hexavalent chromium found in Jersey City and elsewhere.

Critics say the release of that risk assessment — and the political pressure on the DEP that resulted — caught the department off guard and led it to clamp down on scientific information it doesn’t want to have to abide by.

Without public dissemination of scientific findings, NJ Sierra Club director Jeff Tittel says, there won’t be any public pressure to tighten potentially harmful policies.

“If you ‘do not have’ any science, then there is no reason to change the policy. An example would be the chromium standard — new studies show the standard for ingestion should be strengthened,” Tittel says. “But if there’s ‘no study,’ there’s no need to change policy, even though the public could be hurt.”

DEP spokeswoman Elaine Makatura says the risk assessment and the information guideline memos are not related. “There’s no correlation that I’m aware of,” she says.

She says the Jeanne Herb memo is simply part of an ongoing reorganization within the department. When asked whether or not the memo amounts to a “gag order,” as critics contend, Makatura says it absolutely does not. “That’s laughable,” she says.

‘An Abuse of the OPRA Process’

The June 1 memo advises that final DEP reports are not to be released until approved by management and the department’s press office, and asks that draft data and reports not be released. It also says that these reports “are not subject to public access under an OPRA exemption.”

“It’s outrageous,” Joe Morris, chromium cleanup project director for the Interfaith Community Organization (ICO), says of the DEP memo. “This seems like an abuse of the OPRA process.”

He says that he believes the department will be selective in how it implements the guidelines.

“They’ll release the science they like and suppress the science they don’t like,” Morris says. “If they don’t like something, they can just leave it in draft form.”

Morris, a veteran of chromium cleanup fights in Hudson County, has decades of experience dealing with the DEP. He says the department has become more secretive under Gov. Jon Corzine.

“This is a real departure from the way that the DEP has conducted science discussions in the past,” he says. He points out that when former DEP commissioner Bradley Campbell, who was appointed by Gov. Jim McGreevey and served until 2006,  convened the Chromium Workgroup, study drafts were willingly shared along the way with ICO and other community stakeholders.

A recent DEP response to an open records request seems to prove Morris’ point.

After the June 1 memo was released, ICO filed an OPRA request seeking documents related to the peer review of the April report that called for stricter chromium cleanup standards.

On Wednesday, ICO was informed by DEP that its request was denied, since the documents “are part of the deliberative process and confidential until the draft document has been finalized.”

ICO says it will likely appeal the denial to the state Government Records Council, which oversees OPRA law (and, incidentally, was recently sued by an open government organization for allegedly violating OPRA law).

‘Shrouded With a Cloak of Deliberation’

Several open government advocates agree with Morris that the DEP seems to have overstepped its bounds.

“It looks to me like an unnecessarily clunky system that’s designed more to stop information from reaching the public than it is to protect the public,” New Jersey Foundation for Open Government (NJFOG) president Ron Miskoff says.

While noting that he’s not a lawyer, Miskoff points out that “the spirit of OPRA is to come down on the side of openness,” not secrecy. With these guidelines, the DEP is not presuming disclosure, he says, likening the move to a controversial 2001 memo written by then-U.S. Attorney General John Ashcroft. The Ashcroft memo overturned the previous presumption of disclosure for federal records, one of the keystones of what is widely regarded among experts to be the most secretive presidential administration in American history.

The Ashcroft directive was considered so severe that Barack Obama, on his first full day as president, directed his administration to reverse it, saying the government “stands on the side not of those who seek to withhold information, but those who seek to make it known.” Less than two months later, Attorney General Eric Holder issued formal guidelines overturning the Ashcroft memo.

“These historic measures do mark the beginning of a new era of openness in our country,” Obama said at the time. “And I will, I hope, do something to make government trustworthy in the eyes of the American people, in the days and weeks, months and years to come. That’s a pretty good place to start.”

Miskoff, echoing the president’s remarks, says the DEP needs to — at the very least — give off the appearance that information isn’t being hidden.

“The appearance of openness leads to more openness,” Miskoff says. He points out that when people feel like the government is not going to give them records, they often stop trying. With that in mind, he says the DEP’s action will likely “have a chilling effect on people who’d like to know more about the environment.”

Makatura, the DEP spokeswoman, stands behind the DEP’s transparency record.

“I think that the department’s reputation for being open and transparent is evident in the continual updating of its webpages and its continual release of information to the public,” she says. “The department has nothing to hide.”

But one attorney who specializes in OPRA law isn’t so sure.

“The department appears to be creating or reinforcing multiple levels of bureaucracy that data and studies must pass through before they become ‘final,’” Walter M. Luers says. “OPRA shields from disclosure documents that are ‘deliberative’; this is called the ‘deliberative process privilege.’  However, data is not deliberative — data is objective. I would be concerned that data is being shrouded with a cloak of deliberation.”

Luers says the memo also doesn’t seem to distinguish between information disclosed to the public and information available under OPRA.

“Not all records may be ‘released’ to the public, but that does not necessarily mean that if DEP receives an OPRA request for a document that they can deny access,” he says. “Specifically, a ‘Final Report’ must go through seven steps before being posted on the DEP website, but if a report is truly ‘Final,’ then it would be disclosable under OPRA, regardless of whether it was cleared for publication on the DEP’s website.”

From Trenton to Jersey City

This open government battle plays out as the DEP, along with the city and PPG Industries, recently finalized a revised settlement to clean up tons of hexavalent chromium along Garfield Avenue. The settlement says PPG must clean up the sites under the terms of “Applicable Remedial Provisions,” which is defined as “all applicable statutes, regulations and laws including the DEP Commissioner’s Chromium Policy as it now exists or may be adopted in the future.”

Currently, the DEP remedial guidelines — laid out by former commissioner Lisa Jackson — call for excavation of the chromium to a level of 20 parts per million (ppm), down to 20 feet.

But the DEP’s now-shuttered Division of Science, Research and Technology (DSRT) recently recommended to implement a cleanup standard of 1 ppm in a risk assessment that was uncovered via OPRA. The DSRT recommendation was based on a new federal National Toxicology Program (NTP) study that shows a clear link between ingesting hexavalent chromium and the development of cancer in mice and rats.

Jersey City corporation counsel Bill Matsikoudis has repeatedly stressed that PPG will have to comply if the DEP adopts the 1 ppm standard. But he says the DEP’s recent actions on what’s considered public information will have no effect on the PPG settlement process.

Matsikoudis points to language in the settlement agreement as proof that the public will be kept in the loop. In the agreement, the court-appointed site administrator will “attend and participate in community or public meetings to discuss proposed remedial measures at the PPG sites.”

However, under the DEP’s new guidelines, it would appear that Jersey City residents would continue to be left in the dark about scientific developments at the department. In fact, the recommendation for a stricter standard, released in April, still has not been publicly disseminated by the DEP on its websites, and would not even be available via OPRA under the new guidelines. Actions such as these lead advocates to question whether the DEP should be involved in the Garfield Avenue cleanup at all.

“This is just another illustration of why jurisdiction on chromium needs to be taken away from the DEP,” Morris says.

NJFOG’s Miskoff says that if the department is playing politics with key information about human health and safety, it’s the public who ultimately loses.

“I don’t want to be drinking [dangerous levels of] chromium in my water, or eating it,” he says. “It could be life-threatening.”

The revised settlement between Jersey City, the state of New Jersey and PPG Industries regarding the cleanup of hexavalent chromium along Garfield Avenue was finalized this week, and the Jersey City Independent has obtained a copy.

The settlement, which was originally announced in February, underwent a public hearing process, where residents and environmental advocates raised a number of concerns. Jersey City corporation counsel Bill Matsikoudis says that many of the issues that arose during the public comment period are addressed in the revised settlement.

So what’s new in the settlement?

* If PPG fails to comply with the cleanup schedule to be laid out by potential site administrator W. Michael McCabe, it is now subject to stipulated financial penalties, as laid out in the 1990 ACO.

* The schedule that the site administrator comes up with will be judicially enforceable.

* The site administrator will create a telephone hotline that any resident within 200 feet of a PPG site can call if the resident suspects chromium contamination on her property. This will lead to an inspection of the site and possibly testing to determine if chromium is present. If it is, PPG will undertake remedial measures as dictated by the site administrator.

* The site administrator is now also tasked with reviewing all the previous and current medical studies regarding chromium exposure in Hudson County, and, if he deems it necessary, recommending a new medical monitoring study for residents near the Garfield Avenue site.

* The amount that PPG will be forced to pay into the city’s Environmental Trust Fund is increased from $1 million to $1.15 million.

* PPG will be forced to “make all reasonable efforts” to make sure that all contractors and subcontractors working on the remediation give 20 percent of its job opportunities to Jersey City residents.

* All PPG sites, not just the Garfield Avenue site, will now fall under the “5-year goal for completion.”

“This is by far the best way to go,” Matsikoudis says. But the Natural Resources Defense Council’s (NRDC) Nancy Marks, who is the lead attorney in a federal citizens’ lawsuit brought by the NRDC and the Interfaith Community Organization (ICO) against PPG, says not so fast.

“The real problem [with the revised settlement] is all tied in with the cleanup standards, or lack thereof,” she says. Marks says that, as it stands now, the settlement would use the excavation standard of 20 parts per million (ppm) down to 20 feet, as set by former Department of Environmental Protection (DEP) commissioner Lisa Jackson.

While Matsikoudis has consistently pointed out that the Jackson standard is the most stringent in the nation, some of the DEP’s own scientists recently recommended the standard be more stringent (to 1 ppm). If the DEP adopts the new standards, PPG would have to clean up to that level, but Marks and others aren’t convinced the department will enact those recommendations due to political pressure. She says that could potentially mean that residents’ health would continue to be in jeopardy.

“We don’t have any confidence that they’re going to eliminate the endangerment,” Marks says, adding that the NRDC and ICO will continue pursuing their litigation.

There will be a public hearing on the revised settlement on Monday, June 15, at 7 pm at City Hall in the City Council chambers. The City Council is slated to vote at Wednesday’s meeting on an resolution authorizing the settlement.

On Monday, a coalition of community and environmental groups filed petitions for rulemaking with the state Department of Environmental Protection (DEP), asking the agency to adopt more stringent standards for hexavalent chromium cleanup.

The petitions, sent by the Interfaith Community Organization (ICO), the Natural Resources Defense Council (NRDC) and the Jersey City community group GRACO, specifically call on the DEP to adopt the cleanup standard 1 of parts per million (ppm) recently recommended by the department’s own Division of Science, Research and Technology (DSRT).

The DSRT memo is based on a new federal National Toxicology Program (NTP) study that shows a clear link between ingesting hexavalent chromium and the development of cancer in mice and rats, and was sent to acting DEP commissioner Mark Mauriello on April 8 but was only made public by an Open Public Records Act (OPRA) request. The memo and corresponding report have not yet been posted to any of the DEP’s chromium websites either.

DEP spokesperson Elaine Makatura says Mauriello has not yet reviewed the science behind the memo in full. She couldn’t give JCI an estimate of when that might happen, or how long it might take for the commissioner to decide whether or not to adopt the 1 ppm standards.

Critics say the DEP will continue to delay the adoption of the standards if not pressed by outside organizations.

“DEP can’t be trusted to handle these issues going forward,” Joe Morris, the ICO’s chromium cleanup project director, says. “At some point, DEP is going to have to start to do its job.”

In addition to calling on the department to issue new standards, the groups are asking DEP to “immediately adopt the 1 ppm soil standard on an interim basis” and to immediately suspend the use of other cleanup techniques like capping.

When asked about the petitions filed this week, Makatura said the department would not comment, saying it was too soon after it had received the notices.

“We feel like if we wait for the commissioner, the public loses,” Morris says, citing the history of non-action established by DEP on chromium issues.

Critics say emails released this week after another OPRA request provide the latest evidence of delay. The emails show that the federal study’s findings were known within the department two years ago.

“I have always thought of government as protecting public health, and erring on the side of precaution,” Zoe Kelman, a former DEP scientist who served on the agency’s Chromium Working Group, says. “It’s clear by the correspondences in these emails that isn’t the priority.”

The emails obtained by Kelman show that then-DEP commissioner Lisa Jackson asked in May 2007 what the federal study would mean for soil cleanup standards in New Jersey. She was told by the science division’s director that the study would result in “a more stringent soil clean-up number … somewhere between 2 and 20 ppm.”

Around the same time, ICO and NRDC sent Jackson a letter alerting them to the federal study and saying the findings “warrant prompt action [by DEP] to strengthen chromium cleanup standards in order to protect the public.” She never responded to that letter.

Earlier in 2007, Jackson, who now heads the federal Environmental Protection Agency, had issued a memo putting forth guidelines that hexavalent chromium be excavated to a 20 ppm standard down to a level of 20 feet.

After being told by her science director that 20 ppm would likely be the least stringent standard brought about by the federal study, Jackson did not tighten her guidelines or impose a moratorium on cleanup approvals while the department waited for the science department to examine the study.

Instead, she allowed a dust study on chromium exposure and heath effects in Jersey City that used the 20 ppm guideline as the acceptable threshold for household dust to proceed. The study, headed up by Paul Lioy, found that few households sampled breached the 20 ppm threshold, and concluded that “risks are low” for residents.

“I think the most irresponsible thing the DEP did between 2007 and now was let Paul Lioy’s study go forward,” Morris says. “[The federal study] fully discredits all of his conclusions.”

Any new DEP standards are likely to affect the proposed settlement between the city, the state and PPG Industries over the cleanup of a chromium-contaminated site along Garfield Avenue. Jersey City corporation counsel Bill Matsikoudis has said previously that if the state imposes more stringent standards, PPG will have to abide by them.

GRACO president Felicia Collis says her organization will be asking members of the City Council to endorse the petitions sent to the DEP.

“Every single Jersey City resident, especially Ward F residents, should have an insatiable desire to demand that Garfield Avenue and any other smaller contaminated sites be cleaned up to the highest of standards,” she says. “Unfortunately, elected officials need to be reminded that they are expected to acknowledge the voice of the people and execute any actions that would ensure the well being of all.”

The DEP has 60 days to respond to the petitions. It can either deny them, grant them, or refer the matter for further deliberations, which gives the department another 90 days to decide how to proceed.

Morris says the science in the federal study is “about as peer-reviewed and tested as a recommendation can get,” and Kelman concurs.

“I’m very confident [the scientists] did it in a way so that it couldn’t be challenged scientifically,” she says. “But that’s the science — now the politics can take over.”

Morris points out that the buck ultimately stops with Gov. Corzine, who has thus far been reluctant to get behind more stringent chromium cleanup standards.

“The governor is the person who could make this happen,” he says.

DOCUMENTS:

* The groups’ letter to DEP commissioner Mauriello

* The petition for rulemaking on a residential standard

* The petition for rulemaking on a non-residential standard

* The Division of Science, Research and Technology’s memo to commissioner Mauriello, and its full final report.

* The ICO/NRDC June 2007 letter to then-commissioner Jackson

* The emails provided to Zoe Kelman this week after an OPRA request

* The remainder of the studies and memos referred to in this story can be found on the DEP’s chromium website.

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.”

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.”