Summit Council Seeks ‘Political Solution’ from State in Passaic River Lawsuit That Could Result in Multi-Million-Dollar Settlements
Thursday, June 7, 2012 • 7:31am
SUMMIT, NJ—Summit officials are seeking to avoid paying out an enormous amount of taxpayer dollars to settle the multi-million-dollar Passaic River cleanup lawsuit that could be one of the largest in United States history.
The Common Council on Wednesday decided to enlist the help of state and Union County officials in indemnifying the city and more than 360 other communities and government entities against the costs of the suit or getting the third-party defendants removed from an action in which they contend they should have no part.
The New Jersey Department of Environmental Protection first sued Diamond Shamrock Corporation in 2005 because, it said, the company for years had been dumping untreated dioxin and other toxic materials into the Passaic River from a plant it operated on Lister Street in the Ironbound section of Newark.
Tierra Solutions and Maxus Energy Corp., two of the successor firms at the Lister Street site, who were named in the original suit, in 2009 turned around and sued a number of public entities, including the Joint Meeting and its member communities, such as Summit and a number of other communities in The Alternative Press readership area.
Tierra and Maxus claim that the third-party defendants had, in fact, allowed or participated in the pollution of the Passaic River for about 30 years prior to the alleged pollution of the river from the Lister Street plant.
Summit and the other communities have been brought in as third-party defendants both as members of the Joint Meeting, the entity that treats sewage from the communities and releases it into rivers and as individual third-party defendants.
This, in effect, places the Hilltop City and its sister municipalities in “double-jeopardy,” according to Common Council President Richard Madden.
The original nine defendants, Madden added, didn’t clean up the river in the 1980s as they promised they would and then the site changed ownership from Diamond Shamrock and Diamond Alkali to Occidental Petroleum, Tierra and Maxus. Also included were four Argentine companies who also were associated with the Lister Avenue site and are seeking to get out of the suit because they are based in a foreign country.
The council president noted that the original defendants intentionally polluted the river with dioxin, which was used to make Agent Orange during the Vietnam War, and they are bringing in the other entities in order to dilute their financial exposure.
He said communities like Summit were not involved in that pollution, which dates from the 1950s and 1960s.
Madden estimated the potential exposure to each of the communities could run as high as $100 million and called the suing of the third parties a “frivolous boondoggle” for law firms and other professional organizations involved with preparation of the billions of pages of discovery information being sought in the case.
Dave Bomgaars, the council’s finance chair, said the United States Army Corps of Engineers is seeking to recover its costs from the Passaic River cleanup from the New Jersey Department of Environmental Protection and that is why the original suit was filed.
He added the special master for electronic discovery in the case has speculated it could become the fifth largest lawsuit in United States history.
Councilwoman Nuris Portuondo said the Summit governing body was not passing judgment on the fact that the river needs to be cleaned up and that people have been injured due to the pollution.
Wednesday’s action, she explained, was aimed at preventing the municipalities from bearing legal costs in a suit whose end they could not predict and over concern with the potential liability. In the end, she noted, the communities could be spending all this money for many years just to find out what they already know, that they are not the ones responsible for polluting the river.
Madden and Councilman Patrick Hurley also said Summit would refuse to drag in industries within its borders as fourth-party defendants and make enemies of them by saying they were the sources of alleged pollution of the river.
The council president also noted that Elizabeth, which has a 37 percent share in the joint meeting, has refused to contribute to the legal defense plan and he hoped Summit would do the same.
Councilman Robert Rubino added the communities that belong to the Joint Meeting and other sewage authorities along the river were, in effect, being sued for providing government-required treatment of wastewater before discharging it into the Passaic.
“If we defend this action we could go broke and if we decide not to defend it we could also go broke,” he said.
“Noone is declaring bankruptcy in this ridiculous lawsuit,” Hurley noted, “and Summit certainly is in not danger of going bankrupt.”
That danger would loom only if the suit was allowed to go forward for a great amount of time, he said.
City Administrator Christopher Cotter noted the Union County Board of Chosen Freeholders has pledged to pass a resolution supporting the municipalities in their fight against the suit.
Mayor Ellen Dickson added she has contacted the lieutenant governor and the city’s legislators to get their support in arranging a meeting with the DEP to discuss the matter.
The Common Council resolution passed Wednesday authorizes Dickson to write letters to the legislators, the freeholders and the governor’s office seeking support for indemnification of the municipalities against the lawsuit and in extricating them as defendants.
In other action at Wednesday’s session, the council approved Dickson’s promotion of Michael Treiber to police sergeant, Sgt. David Richel to lieutenant and Lt. Andrew Bartollotti to captain.
The promotions were made necessary by the retirement of Capt. John Dougherty.
In another police matter, the council amended the traffic ordinance to limit parking to two hours on Kent Place Boulevard between Morris Avenue and High Street from 7am to 3pm on school days, prohibiting a right turn east on Glenside Avenue to west onto Baltusrol Road by motor vehicles more than 30 feet wide and left turns by all vehicles east on Baltusrol Road to west on Glenside Avenue.
Resident assessments for road improvements also were approved for: 175 Springfield Avenue, the Woodland Avenue Improvement Project, the Parkview Terrace, Clearview Drive, Oaklawn Road and Midland Terrace Improvement Project and improvement projects on New England and Norwood Avenues, Beekman Road, Miele Place and Plain Street and Sunset Drive.
Councilmen also adopted the 2012 municipal salary ordinance.
Dickson also declared Wednesday as Home for Good Dog Rescue Day in Summit to congratulate the dog rescue organization on the adoption of its 1000th stray dog after only 20 months in existence.
Also, Community Programs Director Judith Jacobs outlined the many events, ranging from children’s games in the morning, to a bicycle race during the day and fireworks at night as part of the city’s 65th annual Independence Day celebration.
She asked for donations to help pay the $80,000 privately funded pricetag for the event. Approximately $4,000 already has been raised, Jacobs said.