Source: Herald News, July 24, 2006
By: Jennifer H. Cunningham
In 1989, the U.S. Environmental Protection Agency found that the Passaic Valley Sewerage Commission’s antiquated treatment plant in Newark was dumping toxic pollutants into the lower Passaic River — further fouling one of the dirtiest waterways in the country.
Now, 17 years later, no action has been taken to upgrade the facility, which handles one-fourth of all New Jersey’s wastewater. In addition, no agreement on a definite plan to do so is in place. Not only has no progress been made, but now the federal agency and the PVSC are haggling over who will pay for improving the treatment plant to stem continuing pollution of the river — and whether the sewerage commission should be legally named as a polluter, opening the path to liability for the cost of cleaning up the river.
The outcome of the seemingly endless negotiations over the treatment plant could well affect the 1.3 million ratepayers in the 48 municipalities in Passaic, Bergen, Essex and Hudson counties who use the PVSC to handle their waste, according to commission officials.
Despite the fact that residential sewer bills have already risen by as much as 20 percent in many communities served by PVSC in the last year, ratepayers could see their sewer bills swell again to cover part — or even all — of the estimated $100 million project cost — or the cost of cleaning up the river, if the commission is found to be legally responsible.
“Short of there being any remedy in the form of grants, the costs have to come from somewhere, and it will be from the ratepayers,” said Rich Ambrosino, spokesman for the sewerage commission. Ambrosino said PVSC thinks the federal officials are dragging their feet. EPA officials said that’s not so.
But as the negotiations over the Newark treatment facility drag on, the question of who should pay to restore the Passaic River has become as murky as the river water.
River used as industrial dump
Often considered the cradle of the industrial revolution, the Passaic River was used as the region’s dump for industrial and sewage wastes at least a century before the PVSC was established in 1902. Fearing residents’ drinking water was in jeopardy, the state Legislature passed a bill creating the commission to treat and dispose of sewage in order to help maintain the river’s water quality.
But throughout the 20th century, industry continued to dump wastes and poisons into the Passaic. After finding high levels of human carcinogens, including dioxins, in Passaic River sediment and crabs, the state Department of Environmental Protection banned fish and shellfish consumption from the river in 1983; swimming was also banned around that time.
By then, however, Congress had passed the 1980 Superfund law,authorizing federal agencies to make polluters pay for remediation. According to that law, any entity, corporate or public, that has transported, handled or discharged toxins is considered potentially responsible for cleaning it up.Eventually, three former industrial properties — one each in Newark, Kearny and Fair Lawn — were named as Superfund sites along the Passaic River.
The Passaic Valley Sewerage Commission treatment plant was not one of them. But the sprawling complex of old and new pumps, pools and buildings, set on a triangle of 158 acres between The New Jersey Turnpike, Interstate 78 and Newark Bay, has contributed to the river’s pollution.
During heavy rains, stormwater, street debris and chemicals mix with untreated sewage in the nearly century-old combined storm water and sanitary sewers in cities including Passaic and Paterson, among other places, then flow through miles of sewer mains to the PVSC plant. Because the old plant can only treat 330 million gallons of wastewater per day, storm events overwhelm the capacity and excess effluent is flushed directly into the river through discharge pipes.
In 1989, the EPA issued a National Sewage Sludge Survey that found that levels of dioxins in sludge from the PVSC plant were consistent with the levels of dioxin in sediment at the bottom of the river, said David Kluesner, an EPA spokesman.
“The EPA believes that the PVSC is a potentially responsible party under Superfund legislation,” said Kluesner.
Renovating the combined sewer system would cost billions. “It would take a complete restructuring of the entire sewage system,” said Ambrosino.
Instead, he said, the Passaic Valley Sewerage commissioners opted for a less expensive solution: seeking federal grants to upgrade the treatment facility to handle more wastewater.
Who should pay?
Beginning in 2004, the EPA and the sewerage commission began talks about upgrading the plant, as well as defining the commission’s role in the pollution of the Passaic. At that time, the EPA regional administrator for New Jersey, New York, Puerto Rico and the U.S. Virgin Islands was Jane Kenny, the former commissioner of Community Affairs in the administration of former Gov. Christine Todd Whitman, whom President Bush made EPA administrator in 2001. In a phone interview, Kenny said she initiated the talks.
“We were making progress, but more needed to be done,” she said. “The Passaic is complex and many are involved. We didn’t want to hurt any municipalities.”
During Kenny’s administration, the EPA came to an agreement with 31 polluters to fund more than half of a $19 million contamination study of the lower Passaic, which stretches 17 miles from Dundee Dam in Garfield to Newark Bay.
But after Kenny followed Whitman’s exit from the EPA, to join Whitman’s private consultancy, The Whitman Strategy Group, in late 2004, the talks stalled and didn’t resume for almost a year, according to Ambrosino.
“The PVSC thought we were beyond the framework (of negotiations) and on the road to crafting a reasonable solution,” he said.
He blamed the lapse on the 10-month lag between Kenny’s departure and the naming of a new EPA regional administrator, Alan Steinberg.
Steinberg, a former director of the Meadowlands Commission when Whitman was governor — with no other experience in environmental policy, — categorically denied foot-dragging.
“At no point did my taking office slow negotiations,” Steinberg said. “In fact, I’ve tried to accelerate the pace of those discussions.”
Steinberg dismissed as “irrelevant” the question of how many meetings had taken place between EPA and PVSC during his administration. But he said one of the reasons that no deal had been struck was because the U.S. Department of Justice must approve agreements involving potential lawsuits — that could hold the PVSC legally liable for pollution — and the Justice Department hasn’t signed off.
Cynthia Magnuson, a Justice Department spokeswoman, confirmed that Justice would have to approve any settlement and that negotiations were ongoing.
In the past, said Steinberg, municipal sewage authorities have been deemed “responsible parties” in pollution cases. But EPA has repeatedly said it doesn’t want to go court with polluters to clean up the Passaic, he said, because it believes that litigation would further delay the river’s cleanup.
“We don’t want a situation with these PRP’s (potentially responsible parties) litigating against each other,” Steinberg said. “That kind of litigation would delay the remediation forever.”
But Steinberg’s concern was borne out earlier this year, when one of the other major polluters of the lower Passaic River announced its intention to drag the PVSC into its own cleanup obligations under the Superfund Law. In February, East Brunswick-based Tierra Solutions Inc., notified the sewerage commission that it would sue them for some of the corporation’s river cleanup costs.
Tierra Solutions is the successor company to the defunct Diamond Alkali, a Newark manufacturer of herbicides, including Agent Orange, which dumped dioxins into the Passaic for more than 20 years, before going out of business in 1969, according to the state Department of Environmental Protection. In 1984, the company’s Lister Avenue property was classified as a Superfund site, and by 2000, a temporary cap, slurry and floodwall encapsulated the property.
Tierra Solutions spokesman Mike Turner said the company is waiting for a judge to rule on two motions before moving forward with a lawsuit against PVSC.
Ella Filippone, executive director of the Passaic River Coalition, an advocacy group for the river, has monitored Passaic River cleanup efforts for many years. She said the EPA has to decide whether it’s more beneficial to help upgrade the treatment plant or name PVSC as a responsible party.
“It’s an interesting dilemma that the regional administrator has,” Filippone said of Steinberg, “and I’m glad I’m not in his seat.”
Rep. Bill Pascrell Jr., D-Paterson, said he has long worked to bring together federal officials and the sewerage commission to settle the matter of who should pay to clean up the lower Passaic River. Pascrell has introduced legislation which would authorize $1.5 billion in federal grants, specifically for upgrades to sewage treatment facilities like Passaic Valley’s.
EPA didn’t take a position on the bill. But EPA spokesman Kluesner said that, in general, the agency favors legislation for grants to fund sewer treatment plant upgrades.