LETTER Sierra Club Upset Court Denies Motion on Exxon Case

Today Judge Hogan ruled to deny the Sierra Club’s motion to intervene in the Exxon settlement case. We are looking into appealing the court’s decision and other legal actions. The Sierra Club and other environmental groups filed a motion to intervene in the settlement because we believed the people of New Jersey are not properly represented by the DEP. Our motion planned to show that this settlement is wrong and Exxon should be responsible for the environmental damages impacted and woulduphold the Spill Act, Natural Resource Damages, and the Public Trust Doctrine.

“Today the people lost but the fight will continue. We are very disappointed with this decision by the judge to deny our motion to intervene in the Exxon settlement. We believe that this settlement is a sell-out and needs to be blocked. We wanted to intervene to bring in new information to the judge on why this settlement is a bad deal. We believe that there is information that still needs to be put on the record, not only about the Bayway and Linden refineries, but also about the 16 other sites and 800 gas stations. We believe that the record on the settlement in incomplete on the need to restore 1,500 acres of wetlands; not just cap them and pave them over. We will continue our fight to prevent the settlement from going forward and try to represent the public’s interest since the DEP will not,” said Jeff Tittel, Director of the New Jersey Sierra Club. “We are down but not out; we will continue to fight this sellout.”

The state government tends to go along with state agencies in court and it is hard to win over a state agency. The Christie Administration wanted to settle this case fast to be able to use this money to help balance the general fund. This case was filed in 2004 by the McGreevy administration for the damages that Exxon has done to the environment only around the Bayonne and Linden refineries. We had worked and supported the McGreevy Administration on this case. Exxon has been under Administrative Consent Order for the Bayway refinery since 1991 to clean-up the site and they have to do that anyway. Under the new deal, Exxon does not have to clean-up sites to the extent that they had to before. That is a difference between site restoration and remediation. In the original court case, Exxon would have had to restore the site to its original conditions before the spill. They would have to remove all the oil and chemicals and then restore the wetlands to the state. Now Exxon can just cap the site, which is not really a clean-up.

“We were able to raise many of our issues and the judge got to hear why this settlement is not in the public interest. We are upset that we were not able to intervene; however, courts tend to favor government agencies because they have the presumption of validity. It is unfortunate because in this case the DEP is acting in bad faith. The judge did get to hear loud and clear from the public on the scope of the pollution including two refineries and 16 additional sites. Even though we are not part of the case, we helped give the judge enough information so he can stop the settlement,” said Tittel.

Capping the site would mean Exxon would be required to simply fill the site and not completely restore it. So instead of cleaning it up they would this would leave tons of oil and chemicals in the ground. That would mean that the sites would still be contaminated with potential of oil leaking into the groundwater. The next time there is a storm, the toxins end up spreading to people’s basements and homes through vapor intrusion.

“We knew Exxon would oppose our motion because they’re getting a great deal. However, DEP’s opposition is shameful since they should be on the side of the environment. The DEP is more interested in protecting Exxon than the people of New Jersey. Unfortunately the judge listened to DEP and Exxon. They do not want us to intervene because it will bring in transparency and openness to the process and show that this deal is a sham. We can bring in information about why the settlement hurts the environment and costs taxpayers money as well as expert reports to show that Exxon is getting left off the hook. DEP and Exxon are working together to keep us out of the case because they don’t want the facts to be given to the judge nor do they want this sellout to be exposed. The DEP does not want the public to be involved or understand why this is such a bad deal. They want to do this dirty deal behind closed doors. What DEP did is disgraceful because they are a governmental agency who is supposed to support the people and the environment and uphold the public trust. We wanted to intervene to uphold the public trust that the DEP broke,” said Jeff Tittel.

Over 70,000 people have weighed in against the NJDEP ExxonMobil settlement and today environmental groups helped bring the comments to the Judge’s attention. The public is outraged about this sellout by the Christie Administration of the environment and taxpayers. The proposed settlement would accept $225 million for 100 years of pollution at two refineries, 16 industrial sites and over 800 gas stations. The public understands that this is a bad deal. 70,000 comments were generated from a broad coalition of state legislators, environmental, consumer, housing, faith and labor groups. The DEP is siding against the public and against the environment.

“We believe that the judge must look at the over 70,000 comments made in opposition to this settlement. The Christie Administration said we didn’t need to intervene because we have not exhausted our right to public comment. The DEP’s response to comments is part of the lies and misinformation they have been spreading all along; they have ignored what people had to say. We hope the judge reads the comments and sees through the DEP’s spins. One of the reasons we wanted to intervene is so those comments will not only be included in the record, but the judge will understand how important they are. This is the biggest corporate giveaway in state history and Exxon and the DEP doesn’t want us to represent the public. The DEP now stands for the ‘Department of Exxon Protection.’ We wanted to see the money go where it belonged: to the people and communities who have been impacted by Exxon’s pollution,” said Jeff Tittel.

Our motion to intervene and future appeal will show that the DEP has misled the publicThe settlement, as proposed, would cover an additional 16 industrial sites and 800 to 1,700 privately-owned gas stations.  The settlement includes Paulsboro sites, Flemington and Pennington oil depots, Edison Research Lab, Linden oil depot and many other contaminated sites around New Jersey.  The Paulsboro Refinery is a 950 acre site that has contaminated wetlands and tidal marshes and clean up there alone could cost billions. There was a 135,000 gallon oil spill and nine additional spills as well contaminating 63 acres of the aquifer and billions of gallons of groundwater.

“The DEP is not telling the truth about the information they have. They have information in DEP files on the 16 sites as well as the 800 gas stations. We have DEP documents showing that the DEP has substantial information on many of these sites. They’ve been deliberately withholding that information. We wanted to enter the case so we can force the DEP to release that information. They won’t even say how many people commented; they’ve said it was 10,000 when it was actually 70,000. They don’t want the public to know just how dirty this deal is. They want to sell out to Exxon instead of fighting for what the people deserve. They’ve been misleading the public and the court as well,”said Jeff Tittel.

The environmental groups plan to appeal this decision because we believe the DEP is being dishonest in this settlement. In our own files we’ve found information on two gas stations, the Linden Exxon lab, and the Paulsboro Exxon Lube site. This site is considered a C2 site with multiple pollutants and groundwater contamination. The point is the DEP doesn’t want this information out there.

“Even though we lost today, we are going to continue to fight. We are looking to appeal this decision. In the meantime, we can also file to be a friend to the court to get information to the judge on why he should set aside this settlement. Normally when you are a friend of the court, you tend to support the governmental agency but the DEP is only a friend to Exxon. Each time you look the deal gets worse and worse. This is the biggest corporate tax subsidy in state history. This settlement is costing the taxpayers billions of dollars and leaving hazardous contaminants in New Jersey. The DEP is withholding important information and the court should realize that they aren’t being truthful. We will appeal this court decision. This isn’t a settlement; it’s a sellout,” said Jeff Tittel, director of the New Jersey Sierra Club. “Even though we have not yet been able to intervene in the case, we’re going to keep fighting. The people of New Jersey deserve it since the DEP has sided with polluters over the public.”