Millburn Township Committee Awards $7 Million Contract for Construction of Parking Garage; Passaic River Cleanup Suit Costs Possibly Astronomical

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MILLBURN, NJ—The Township Committee on Tuesday awarded a $6,985,000 contract for the construction of a parking garage over the current Lot No.2 on Essex Street to Dobco, Inc.

French & Parrello Associates will test soil removed from the parking garage site and concrete and precast materials thanks to a $50,100 contract also approved by the committee.

Meanwhile, three attorneys from the Genova & Burns firm that is the lead litigator for the Joint Meeting of Union and Essex Counties and most of the public entities involved in the Passaic River cleanup litigation outlined the potential cost of the litigation.

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Attorney Christopher Hartwyk estimated that, in addition to the original nine chemical company defendants in the case and about 375 public agencies and governmental bodies brought in as third-party defendants by the original defendants, the third-party defendants could bring in as many as 10,000 additional fourth-party defendants.

These could include the industries that may have contributed to pollution of the river within the borders of the governmental entities and manufacturers of materials that added to the pollution.

He said a cost estimate for just a two-square-mile area of the river already undergoing cleanup totals about $80 million. The lawsuit seeks to cover 17 square miles of the Passaic River basin.

According to Millburn Township Committeeman Thomas McDermott, Millburn holds about a 6 percent share of the Joint Meeting. Therefore, its exposure to the costs of the litigation would be equivalent to that share.

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, including Millburn.

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.

The Genova attorneys said Tuesday that the special master appointed by the New Jersey Superior Court judge hearing the case has set a number of deadlines for all sides to present materials as part of discovery in the case.

According to Hartwick, the non-computerized records requested from the Joint Meeting and its member communities could amount to about three to five million pages of information.

To present these records efficiently, Hartwick said, digitalization probably will be necessary and the cost of that process alone to the third-party defendants could amount to $800,000 to $2.4 million.

He added the third-party defendants hope to meet the court’s discovery demands with a “rolling obligation,” meaning they will not have to complete each discovery phase precisely at each deadline provided they can prove they are continuing with the discovery process.

That process is expected to continue at least until the end of this year, and the third-party defendants probably will ask for an extension on that deadline, Hartwick noted.

While meeting the discovery parameters, the attorney pointed out, the third-party defendants will be appealing the court’s earlier ruling that they should not be dismissed from the case.

The Joint Meeting and other sewage authorities that are third-party defendants, along with their members, feel the action should be dismissed, first, of all, because, as governmental bodies, they should be immune from such suits, and secondly, sewage and sewage sludge are specifically exempted from the Spill Act under which the lawsuit first was instituted.

In addition to the appeal, Hartwick said, the governmental entities will be pressing for new state legislation to strengthen their exemption from the Spill Act.

Millburn Township Attorney Christopher H. Falcon said the governmental entities have been contributing to the cleanup of the Passaic River by treating wastewater before it enters the river rather than contributing to the pollution.

He noted a recent related case during which testimony cited the fact that “Diamond Shamrock continuously discharged Dioxin into the Passaic River and even instructed employees to chop up the discharges so they could not be detected by passing boats. Its employees were exposed to these dangers and the company refused to modify its procedures.”

Falcon added, “The materials Diamond Shamrock discharged into the river were like black oil and the treated wastewater the sewage authorities discharged into the river was, by comparison, clear water. A person could die from drinking the black oil discharged by Diamond Shamrock, but most likely would not die from the water discharged by the sewage authorities.”

In another official action at Tuesday’s meeting, the Millburn governing body adopted an ordinance appropriating $740,000 for the acquisition of a building and land at 425 Essex Street owned by the Coppola Family Partnership.

The Coppola property currently houses a medical building. It is located east of the township law enforcement and court facilities. When the acquisition ordinance was introduced last month Deputy Mayor Robert J. Tillotson said a driveway at the rear of the property provides access for emergency vehicles from the police and fire departments to Old Short Hills Road.

He added the township would honor a lease with the current tenant of the building through 2014.

However, the township is considering merging its municipal court with that of Livingston and the new acquisition could possibly fit into plans having to do with that merger.

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