A federal appeals court said the government is not responsible for cleaning up toxic chromium 6, the so-called Erin Brockovich chemical, at multiple waste sites in Jersey City, in an opinion that will force the manufacturer to complete the remediation at its own expense.
The Third Circuit Court of Appeals this week upheld a lower court decision rejecting an argument by PPG Industries that the federal government was liable for removing the potentially carcinogenic chemical because it regulated production of the chemical during the Second World War, and deemed it critical to the national war effort.
The court said that although the government controlled the amount of chromium ore that the operators like NPRC — PPG’s predecessor — could buy and sell, and to whom, the government did not direct how the material was processed, and how the waste was disposed of.
“PPG has presented no evidence that the government specifically controlled operations related to pollution,” the court wrote in a 23-page opinion. “PPG has not offered any evidence to suggest that the government was involved with or responsible for the practice of stockpiling the waste outdoors, which is what led to the contamination.”
The court concluded that the site operator, not the government, had control over storage of waste.
‘Letting it seep into the soil’
“It was entirely NPRC’s decision, not the government’s, to continue the longstanding practice of stockpiling the majority of the waste outside and uncovered, letting it seep into the soil and groundwater,” it wrote. “Therefore, the district court did not err when it found that the government never specifically managed or conducted NPRC’s operations related to pollution.”
Pittsburgh-based PPG, which makes paints and stains for aerospace, carmakers and other industries, said it will continue to fulfill its cleanup responsibilities. “The total cost of the cleanup will not be known until it is completed, but a significant majority of the cleanup work has been completed,” the company said in a statement.
Spokesman Mark Silvey said there are 19 cleanup sites that remain subject to a judicial consent order that the company signed with the City of Jersey City and the Department of Environmental Protection in 2009. The company has completed soil remediation at seven of the sites, and met DEP requirements there, he said.
The company has already spent $367 million in cleaning up contaminated sites in and around Jersey City, the court said.
The chemical is best known for having been exposed as a threat to public health by the environmental campaigner Erin Brockovich, a former legal clerk who investigated a cluster of illnesses in Hinkley, Calif., starting in 1993. She later won a $333 million settlement from Pacific Gas and Electric, which had dumped millions of gallons of chromium waste into unlined ponds. Brockovich’s story was dramatized in a movie by the same name, starring Julia Roberts.
The chemical, whose industrial uses include chromium plating, leather tanning, and inks that color plastic, is linked to some cancers, kidney and liver damage, and irritation of the nose, skin and eyes, according to the National Institutes of Health.
In 2016, a national study by the advocacy organization Environmental Working Group concluded that more than 200 million Americans were exposed to the chemical at sites in every state, including 150 sites in New Jersey.
State settled with the company in 2011
In 2011, New Jersey reached a settlement with three companies including PPG to pay a total of $15 million to reimburse the state for cleaning up numerous chromium 6 sites in Hudson County, and to accept responsibility for ongoing cleanup.
The latest court ruling upholds the principle established in the federal Superfund law of 1980 that the operator is responsible for cleanup, and that the government is not the operator, said Ed Lloyd, a professor of environmental law at Columbia University.
“It’s an important issue, that the government does not become responsible for pollution from an industry that it works with during war,” Lloyd said. The court’s labeling of its opinion as “precedential” indicates that the ruling is not limited to the facts of this case, but applies broadly, he said.
Doug O’Malley, director of Environment New Jersey, said the ruling “closes a loophole” in the law that has allowed some companies to argue that the government is liable for the cleanup of toxic chemicals if it directed their use during wartime.
Site operators will now be clear that they are responsible for the “very extensive and expensive” cleanup of contamination even if the production that caused it was government-related, O’Malley said.
Jeff Tittel, director of the New Jersey Sierra Club, called the ruling a win for the environment and public health, and a red signal to any corporate polluters that argue the government is liable.
“PPG is hiding behind the fallacy of World War II, saying the government was responsible because they operated the facility during the war,” Tittel said. “PPG tried to sue based on an archaic law so that they’d be exempt to clean up the toxic nightmare they made. It’s good the court did not see through their lies.”