Fake controversy over Exxon settlement, Morses Creek cleanup is obliterated by Judge’s decision

Fake controversy over Exxon settlement, Morses Creek cleanup is obliterated by Judge’s decision

By Matt Rooney | The Save Jersey Blog

The hyper-partisan bitch fest over New Jersey’s much-reported Exxon settlement was always light on facts, Save Jerseyans. Devoid of supporting facts would be more accurate. The clearest evidence? The same liberal critics who currently oppose the $225 million in damages negotiated by the Republican administration had previously said that that figure was in the ballpark back in 2006 when New Jersey had a Democrat governor.

I could have gone (and did go) on ranting from there but you get the point.

lesniak greenzoThe Trial Court got the point, too. Superior Court Judge Michael Hogan’s 81-page decision released this week concluded that the controversial deal is “fair, reasonable, in the public interest, and consistent with the goals of the Spill Compensation and Control Act.”

“The fact that the recovery amount far outpaces the state’s previous wetlands settlement recoveries shows that the amount adequately compensates the public,” he wrote. “The fact that in the past, both federal trustees and other trial court judges have considered lower per-acre recovery sums to be reasonable, underscores the reasonableness of the DEP’s nearly 40 percent improvement over their historical average. Moreover, this recovery is adequate considering the litigation risks and real possibility that the state could have walked away from litigation with far less money, or none whatsoever.”

Any appeal could turn on the fate of Morses Creek under the settlement agreement.

Ray Lesniak, a thin-skinned state senator who golfs with Bill Clinton and blocked Save Jersey on Twitter, had hoped to base an appeal of the decision almost entirely on the delayed cleanup of Morses Creek. Anticipating this attack like any jurist worth his salt would, Judge Hogan exhaustively explained how this particular provision had given him initial “pause” but not “fatally,” continuing on to discuss many reasonable explanations for it (at pages 76-77):

First, if Exxon and the DEP attempted to remediate the Creek while 30 million gallons of water were being discharged into the Creek per-day, their task would be nearly impossible. There was no trial evidence that provided a practicable alternative for long-term water supply. For this reason, any remediation they attempted might not be possible, let alone effective. By waiting until the refinery no longer discharges 30 million gallons of water into the Creek, the public is guaranteed that remediation will be more complete and thorough. In this sense, the provision, like the rest of the Proposed Consent Judgment is a reasonable compromise, even with the extended deferral.

Second, the provision is in the public interest because it only defers remediation until “operational conditions at the BRC no longer require the regular discharge into Morses Creek of 30 million gallons per day or more of once-through non-contact cooling water . . . .”161 In their critique, Amici have overlooked this clause and instead only focus on the “cessation of refining conditions” language. This clause defines what the cessation of refining conditions are under the Consent Judgment. Currently, technology does not exist that would allow one to operate the refinery without using at least 30 million gallons of non-contact cooling water. Once that technology is developed, either the refinery owner will voluntarily adopt the new technology, or the DEP will cease to issue “NJPDES Permit No. NJ0001511 (or as renewed/reissued).” 162 Once either of these events occur, the DEP will then have a right to require Exxon to fully remediate Morses Creek under the ACO and Consent Judgment. 161 Proposed Consent Judgment, ¶ 13. 162 Ibid. 77

Third, even if the court were to reject the Consent Judgment, Morses Creek could not be remediated anytime in the immediate future. Under the Bayway ACO, Exxon is obligated to complete a feasibility study for Morses Creek. This study will identify a range of options and available technology concerning how to go about remediation. After reviewing this study, the DEP will then select the best option and issue Exxon a permit allowing them to remediate the Creek. The Proposed Consent Judgment still requires Exxon to comply with its obligation to complete the feasibility study. The study, which recommends the appropriate technology, should therefore be completed by the “cessation of refining operations,” allowing the DEP to select a remedy in a timely fashion.”

“One thing is for sure: Morses Creek will be remediated much faster through the parties’ cooperation under the Consent Judgment than through prolonged battles in appellate courts,” the Judge concluded, putting a very fine point on the matter.

I’ll now continue to hope -with no basis for my hope, of course – that Trenton will clean-up its own act and start focusing on real controversies, not manufactured ones designed to damage presidential campaigns.

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2 thoughts on “Fake controversy over Exxon settlement, Morses Creek cleanup is obliterated by Judge’s decision

  1. 2006 dollars do not equal 2015 dollars and Corzine wanted double that then

    Nj dem legislators were myopic then

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