Memo to DEP: Protect Kids – Enforce the Law

[Update: 10/07/09 – ANOTHER Tragedy: New tests show elevated chemical vapor levels in Middlesex Borough preschool what did DEP know and when did they know it? ~~~ end update]

Children attending Atlantic Highlands Elementary School are being exposed to toxic chemicals from a contaminated site across the street. Polluted groundwater from the site has migrated under the school building and toxic chemical vapors are seeping into the building. Levels detected in the school exceed DEP’s own safety levels. Science suggests that DEP’s levels may not be tough enough to protect young children.

DEP has known about the problem for over 3 YEARS and failed to enforce cleanup laws by mandating that the polluter install a cost effective and demonstrated technology called a sub slab depressurization system recommended by a national expert who has worked on similar cases across the country.

Amazingly, state officials have failed to learn the lesson of Kiddie Kollege, reported by the New York Times:

Memo Shows Agency Knew of Danger in Child Care Building

By TINA KELLEY

Published: September 1, 2006

The New Jersey Department of Environmental Protection knew in 1994 that a building that later housed a Gloucester County day care center was so dangerous that state inspectors were instructed to use respirators when entering the building, according to an internal memo obtained by The New York Times yesterday.

But the site remained contaminated, and as far as the department knew, unoccupied, until inspectors visited it in April and found that Kiddie Kollege, a day care center serving children as young as 8 months old, was operating in the building. Yet the center, which is in Franklin Township, was allowed to remain open for more than three months, until state environmental investigators determined in late July that the site was still contaminated.” (read the complete story here)

The legislature quickly reponded to this tragedy by passing a law to protect children in day care centers and schools (read it here).

The new law directed the DEP to require complete cleanups at these sites, and mandated that the state Department of Health and Senior Services adopt indoor air standards to protect children, based on children’s higher sensitivity to chemicals. Governor Corzine signed the bill into law in January 2007 and issued a press release that said:

TRENTON – Governor Jon S. Corzine today signed legislation to help ensure that child care and educational facilities are environmentally safe for the children attending them.

“This bill will help identify and remediate educational facilities and child care centers located on environmentally high risk sites,” Governor Corzine said. “This puts New Jersey at the forefront of states nationally in protecting children from environmental contaminants while at child care facilities and schools.” (full release here)

The Department of Health has failed to comply with the Kiddie Kollege law and adopt mandated indoor air standards, which were required to be promulgated by July 2008, 18 months after the law’s passage.

Equally amazing is that the DHSS also has been aware of the situation in Atlantic Highlands and has advised – literally – to open the windows and prepare to abandon the school (read the DHSS 9/30/08 recommendations here)

• continue to ventilate the areas that were monitored to reduce the levels of  volatile compounds identified; 
• develop and implement a contingency plan to limit occupancy if conditions within the building change and levels increase in the sampled areas

Local school officials and a group of parents have been working for months on a solution. But they need the power of state law and DEP enforcement to back them up.

Yesterday, I wrote DEP Commissioner Mark Mauriello the following letter – let’s hope this gets resolved immediately. We will keep you posted.

Dear Commissioner:

For many months, the Department has known that children in the Atlantic Highlands elementary school (AHES) are being exposed to unsafe indoor toxic air pollutants that exceed DEP’s vapor intrusion (VI) guidance levels. 

As you know, the Department’s VI guidance levels for indoor air exposure are not based on children’s health risks, pharmacokinetics, and metabolism, as required by P.L. 2007, c.1 (AKA, the “Kiddie Kollege” law, which mandated that DHSS adopt such standards by July 2008), and therefore may not be adequately protective.

The AHES indoor air levels exceed levels that have triggered active indoor vapor mitigation systems in other NJ schools, such as the EPA Pohatcong Valley Superfund site in Franklin Township. The AHES levels also exceed those found in DEP’s oversight of vapor intrusion into homes from Dupont’s Pompton Lakes site (note health based screening level for TCE is 1 ug/m3), where active vapor recovery systems have been installed. They exceed protective science based risk levels by 30 to 3,000 times for TCE. The AHES subslab levels also exceed DEP VI groundwater and soil gas screening criteria.

A plume has migrated under the school building from a site across the street that is the suspected source of the problem. Groundwater standards and soil cleanup criteria are exceeded as well. While indoor air has been monitored, the Department approved remedial action at the site is not designed to reduce indoor air levels or protect children’s health.

Indoor air exceedences are for multiple parameters, but cumulative risks to children have not been quantified or considered as a basis for taking action to prevent needless ongoing toxic exposures of children while at school.

For several months now, an organized group of parents has chosen to work quietly and cooperatively with the DEP case manger and local schools officials  – they were led to believe that a sub-slab depressurization system would be installed BEFORE the start of this school year.

Unfortunately, DEP has not enforced cleanup laws and mandated that this system be installed.

As a result, parents are considering drastic action, including mounting an aggressive public campaign focused on the Department’s failure to protect their children and enforce cleanup laws (something, frankly, I’ve urged them to do many months ago. But they have chosen to work with the Department. But their patience is exhausted and they are feeling betrayed.)

I am giving you this heads up in hopes of preventing a train wreck and to try to secure what should be a fairly simple and cost effective remedy installed immediately.

Please direct your staff to issue a Spill Act Directive to the Responsible Party (with a compliance schedule and stipulated penalties). The Directive should order the revision of the remedial action workplan for the site to mandate that a sub-slab depressurization system needed to protect the health of children at AHES is installed immediately. In the event that the RP does not timely comply, the Department should be prepared to take emergency action and install the system.

Thank you.

Bill Wolfe, Director

NJ PEER (Public Employees for Environmental Responsibility)