Judge denies eco-group's motion for injunction

NEWARK — A federal judge denied a local environmental group's request for a preliminary injunction against a pair of chemical companies that the group accuses of contaminating the Raritan River and its shore near the company's Meadow Road site.

The plaintiffs' motion was in support of a federal lawsuit the organizations filed against the companies in January. If the injunction had been successful, the court would have prioritized hearings on the matter and taken action earlier than it ordinarily would.

While disappointed with the judge's ruling, representatives from the group, the Edison Wetlands Association (EWA), which, along with the Eastern Environmental Law Center, filed the lawsuit, have said they will continue in their efforts to get remediation for the site that they claim has become a health hazard to humans due to the buildup of industrial chemicals released by the site's owners, first Akzo Nobel and then Basell USA, over the years.

The hearing was held before U.S. District Judge Faith S. Hochberg in Newark on Sept. 11 and lasted about two hours. During the court battle, each side presented its case regarding the extent of and responsibility for a variety of toxic chemicals and debris that had been found in the river and along the shoreline. Through the courts, the EWA was seeking to compel the site's owners to clean up the riverbank, implement measures to stop further contamination, and to post signs in the area warning people of a public health risk while the cleanup is going on.

Arguing for the EWA, attorney Richard Webster said the beach was "quite heavily contaminated" with chunks of asbestos and tar as well as a number of hazardous chemicals.

According to tests conducted by Richard Chapin, an engineer hired by the EWA, some of the chemicals found include benzene, classified as a carcinogen by the federal government; 4-chloroaniline, which the state Department of Health and Senior Services says can cause skin blistering and is also classified as a carcinogen; arsenic, another carcinogen, capable of causing nausea and vomiting; and lead, known to be hazardous to the central nervous system. A variety of other unsafe chemicals were also reportedly discovered through testing.

Earliest attempts to control the contamination, forced by state regulatory agencies, included the digging of three large wells to trap the chemicals before they reached the river, but Chapin said that this was ineffective in keeping the pollution from the groundwater. The engineer believes that the best way to address the problem is to dig large trenches after removing the contaminated sand and soil.

John McGuire, an attorney speaking for the defendants, however, argued that much of the environmental remediation has already been completed under the supervision of the state Department of Environmental Protection, and said that the EWA was distorting the facts.

"The DEP has been involved in this site for quite some time. Akzo has been working on this remediation for quite some time," said McGuire.

In the response that the defendants filed to the injunction, it is stated that the EWA has made a "slanted presentation of the facts" and that the technical report from the organization exaggerated what was, according to the defendants, a minor environmental incident. Their response disputed, for example, the extent of the contamination, saying that very few of the contaminants in the seep exceeded any of the DEP's criteria to constitute a health hazard.

McGuire did concede that the site does contain some debris of the description the EWA had put forth, but said that there was no way it had come from them, since debris would have been caught up in the wells the company had dug for that specific purpose. Further, he stated that the Raritan is a flowing river in an industrial site, so the chunks could have come from anywhere.

"It's like cleaning up the side of a highway. You may pick up some cups today, but you'll still find some cups a week later," said McGuire.

Webster fired back with a chart he showed to the judge, tracking the amount of debris coming off the site. He said it proved that the wells were "not only theoretically virtually useless, but empirically virtually useless."

McGuire, however, raised doubts about the credibility of the EWA's evidence, and said that a lot of what the EWA presented was vague and out of context.

Ultimately, the judge decided that she could not make a decision on her own, due to the highly technical nature of the arguments.

"I need to hear from the experts — yours, theirs and the DEP's — so that I can hear from all sides of the basic question," said Hochberg.

After a brief recess, it was decided that both the plaintiff and defendant would present the findings of their own experts in the case.

"They'll have their expert, we'll have our expert," said McGuire.

The experts will exchange technical reports by Nov. 14, 2008, and a hearing will be set for Dec. 17, 2008, specifically to go over their testimony. After that, Hochberg said, the court will convert the preliminary injunction to a full injunction.

McGuire, in a phone interview the next day, said he was pleased that the court decided not to grant the preliminary injunction in the case.

"I think Judge Hochberg's decision not to grant EWA a preliminary injunction was the correct one, and Akzo Nobel will continue working closely with NJDEP to be sure that the site does not endanger the health of the environment," said McGuire.

Bob Spiegel, executive director of the EWA, said he intends to use the time between now and the next hearing constructively by bringing more attention to the situation at the Raritan River. The organization's engineer will conduct additional testing and, in addition, Spiegel will bring as many elected officials as possible to the site in order to increase awareness of the issue.

He said the EWA was hoping to get more from the court case, but stated that the arguments from the defendants did affirm that the site was contaminated, with the issue being the speed and method of the cleanup itself.

"The other side didn't dispute that there was material swashing off, they didn't dispute that the river was contaminated … . They affirmed what we have said, and even the lawyers for the companies did not deny that they were the ones responsible, didn't deny there were chemical seeps, didn't deny that they had contaminated the river. So, they affirmed what we already know, that there is a problem there," said Spiegel.

Chris Gaetano can be reached at Sent- North@gmnews.com.