Newark as seen from the Passaic River. A judge this week approved an agreement that will require 82 firms to proffer $150 million to clean up polluted portions of the river. (Getty Images)
A federal judge approved a consent decree this week that calls for 82 firms responsible for pollution in the lower Passaic River to put $150 million behind cleanup efforts, rejecting a challenge from another alleged polluter that argued the agreement is too lax.
U.S. District Court Judge Madeline Cox Arleo ruled the agreement, which was first proposed in 2022 and covers the cleanup of two zones related to the Diamond Alkali Superfund Site in Newark, is fair and would accomplish an environmental transformation of one of the most polluted waterways in the nation.
The federal Environmental Protection Agency has been working to clean up this part of the river for decades, Cox Arleo noted.
“Fish and wildlife, the environment, and the citizens of this State have suffered long enough because of corporations’ self-interested and deplorable waste disposal practices,” she wrote.
The agreement, which is meant to collect costs from firms with at least some responsibility for pollution in this portion of the Passaic River, faced challenges from Occidental Chemical, the corporate successor to the Diamond Alkali Company.
The firm argued the consent decree presents too-favorable terms to other companies responsible for at least some pollution and would leave OxyChem with a share of the cleanup costs disproportional to its responsibility. But the judge found the firm’s arguments were too little and too late.
“OxyChem’s arguments are unpersuasive, especially considering that OxyChem was invited to participate in the allocation and could have challenged many of these alleged insufficiencies in real time,” Cox Arleo wrote. “Instead, OxyChem refused its seat at the table and waited until the allocation concluded to claim it was treated unfairly.”
Even if the court agreed OxyChem faced worse terms because it did not participate in the negotiations, that was a risk it assumed by eschewing them, the judge found.
The court further rejected OxyChem’s arguments that AlterEcho — the company chosen to allocate responsibility for the cleanup among the polluting firms — committed mathematical and scientific errors in meting out culpability for the costs. Cox Arleo said the court lacks the expertise to challenge AlterEcho’s determinations and would defer to the government’s knowledge.
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In a statement, OxyChem said it is disappointed in the ruling and would appeal.
“The Government’s consent decree — which was opposed by the vast majority of public comments the Government received — proposes to let more than 80 companies walk away from their cleanup responsibilities for pennies on the dollar,” it said.
OxyChem has already put more than $165 million behind capping and dredging efforts to clean up portions of the Passaic River, which is heavily polluted by a range of insecticides, polychlorinated biphenyls, and contaminants used in the production of the defoliant Agent Orange.
Money from the agreement would cover only a small portion of total cleanup costs for the lower Passaic River site — about 8%, or 14% when combined with past recoveries, and OxyChem could face responsibility for the vast majority of what remains.
AlterEcho determined OxyChem is responsible for just under 85.1% of the cleanup — worth roughly $1.6 billion before adjustments to guard against cleanup cost overruns.
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