According to DEP: Real Estate Values Trump Public Right to Know About Risks From Nearby Toxic Sites

DEP Assistant Commissioner Irene Kropp testifies before Senate Environment Committtee that real estate value is more important than public right to know.

I thought I’d seen it all in Trenton, but, again, the Department of Environmental Protection (DEP) has just set a new low. I really shouldn’t be surprised – after all, nobody at DEP got fired for failing to tell parents – for over 14 weeks – that their toddlers were being poisoned by toxic mercury fumes. See NY Times expose: Memo Shows Agency Knew of Danger in Child Care Building–

[Update: compare the lack of accountability at DEP, where children actually were poisoned, with the firing of the Paramus Superintendent Janice Dime  for failure to notify parents about pesticide contaminated soil at the middle school, where there was minimal potential exposure and low risk.]

In the final Lame Duck session of the Senate Environment Committee, on December 14 2009, DEP testified to request an amendment to current law to weaken the public notification requirements to neighbors of toxic waste sites. (you can listen to that DEP testimony here – on S 3004 (Sarlo – D Bergen) approximately 10 minutes into the hearing. Here is the Senate Committee statement explaining the bill. The Assembly version is A3852 (Scalera – D Bergen).

Mr. Sarlo, a demolition engineer at Bishop-Sanzari Heavy Construction in his day job, has become somewhat of a one man legislative environmental wrecking ball, sponsoring bills to kill DEP clean water protections; gut new protections by extending expired old permits; and over-ride local planning and zoning.

But why would DEP want to limit information provided to the public?

Paterson, NJ – sign posted – cleanup underway

The DEP’s sole justification – according to DEP – is that current public notification law allegedly is “negatively impacting property values” (that’s a quote from DEP testimony).

That’s correct, the DEP, the Agency created to protect public health and environment – not the NJ Realtor’s Association who’s mission is to “protect private property rights” –  said that property values were being negatively impacted, including refinancing, sales, and legal disputes over the impact of toxic site contamination on property values. DEP was the only testimony in support of the bill – DEP literally carried the NJ Realtor’s Association’s water.

I wonder if DEP asked the residents of Toms River, where a childhood cancer cluster was linked conclusively to toxic air and water emissions from the Ciba-Geigy Superfund site. Or the owners of homes in Kings Path in Hopewell if they would have liked notification, before they purchased land and built million dollar homes on top of a toxic plume from the nearby Rockwell site (and countless other homeowners across NJ who were scammed or poisoned in their own homes from nearby toxic sites without their knowledge). Here’s the typical community response that DEP dismisses as hysterical misguided risk perception:

Emotions ran high Sept. 21 as Hopewell area residents expressed concern about their health and property values at an information meeting held to discuss cleanup efforts on Somerset and Lafayette streets in the area surrounding the former Rockwell/Kooltronic plant at 57 Hamilton Ave. in Hopewell Borough (HVN; 9/21/06)

The current public notification law (PL 2006, c. 65) was enacted in 2006 in response to outrageous lapses in DEP oversight of the cleanup of toxic sites. To cover up those lapses, DEP withheld information from residents and local officials in Hamilton, NJ (Mercer County) regarding high levels of asbestos contamination at the WR Grace site that DEP had previously said was clean; contamination at American Standard site; high levels of TCE levels at Mercer Rubber site; and failure to warn residents about development sites that had received illegal disposal of PCB contaminated demolition debris and soil from the cleanup of the Ford Edison site.

Outraged by DEP coverup, Hamilton Mayor Glen Gilmore blasted DEP by saying “We’ve been dumped on and lied to“. For weeks, this was front page news in Mercer County, prompting scathingly critical editorials by the Trenton Times.(see: “Confidence in DEP Power on Shaky Ground” [March 5, 2006] followed by an editorial titled: “The Watchdog Fails Again” [March 6, 2006]. DEP was forced to respond. And this was all happening at the same time the Kiddie Kollege scandal was brewing quietly inside DEP, which DEP covered up too – for the full history, see: Privatization of NJ Toxic Cleanup Law Reveals a Systemic Collapse)

The notification bill that was passed into law was sponsored on a bi-partisan basis by Mercer County legislators, Assemblywoman Linda Greenstein (D- Mercer) and Senator Bill Baroni (R – Mercer).

At that time, I met and worked closely with Assemblywoman Greenstein on this issue and testified to strengthen the bill. (See: LEGISLATURE TO PROBE TOXIC COLLAPSE IN NEW JERSEY – Series of Cleanup Fiascoes Have Communities Feeling Betrayed and Vulnerable

Under the new law and DEP regulations, polluters are required to post signs and/or provide written notification, including a summary of the site conditions and information about actions being taken to cleanup the site, to any local property owners and tenants who live within 200 feet of the contaminated site.

This notice allows people to take common sense protective measures, like: 1) sampling their drinking water well; 2) warning children not to play on toxic sites (many of which are not fenced); 3) sampling indoor air for “vapor intrusion” ; 4) sampling soil in the yards or dust in their homes for traces on toxic contamination that frequently migrates off a toxic site (ask people in Jersey City or Pompton Lakes o  Camden about that); 5) not buying contaminated property; or 6) having soil, dust, and indoor air sampling or site investigation done prior to purchase (similar to current septic, termite, underground fuel tank, and engineering inspections).

The notice also empowers citizens to act as watchdogs and demand that the polluter and state officials cleanup the site expeditiously and completely.

Because contamainted soil, groundwater, and toxic vapors often migrate thousands of feet off a contaminated site, if DEP wanted to make the law work “better” as they testified, DEP would have sought changes to delete the 200 feet restriction; amend the definition of “area of concern” for off site migration; and dropped the pretext of concern about reals estate values. Proper notice to account for off site migration would vastly INCREASE the number of properties getting notified, and thereby further diminish land values.

Furthermore, in addition to the outrageously bad public policy position taken by DEP, their testimony was highly misleading, manipulative, and flat out false.

Specifically, DEP testimony claimed that the alleged issues of negative impacts on real estate surrounding toxic waste sites was an unintended consequence of the law that they recently discovered. That testimony is flat out contradicted by history and the facts of the regulatory proceeding conducted by DEP.

Specifically, DEP has known for many years that the presence of toxic contamination adversely impacts not only the quality of the surrounding environment and the health of exposed residents, but also the property values and ability to sell land. DEP has been reluctant historically to publicly say this, but those realities have affected virtually every aspect of the DEP cleanup program.

DEP has known for many years that the community strongly negatively reacts upon learning of toxic exposure health risks associated with toxic sites, and that the property owners feel doubly betrayed by the loss of the value of their homes – nearby homeowners pay with their health and their wealth. This is all widely known. And all swept under the rug at DEP. DEP has knowingly withheld information and failed to warn residents about toxic pollution for years. It is policy at DEP.

In addition to longstanding knowledge by DEP, these alleged adverse real estate issues were raised during the DEP regulatory phase of implementing this new notification law.

The Department published the proposed amendments in the New Jersey Register on August 6, 2007 at 39 N.J.R. 2687(a). ( see Proposal Document) The public comment period for the proposal closed on October 5, 2007. The DEP rules were adopted on September 2, 2008 (see Adoption Document)

In flat out contradiction to the testimony of Assistant Commissioner Kropp, the Real estate industry opposed the new requirements and sought to limit their scope from the get go. Here are the relevant public comments and DEP responses, provided here for those that like to delve in the details. They also are provided here for purposes of accountability. The boldface text is my explanatory notation. I hope Senator Smith – who called Kropp “the most credible person in state government” – reads them:

The Real estate industry (NJ Association of Realtors as commenter #13) flat out opposed the program:

8. COMMENT: Unless a beneficial public purpose can be established, the Sensitive Population and Resource Checklist provision, which appears to provide no public benefit in exchange for added remediation cost, should be removed. The Department should clarify the definition of “sensitive populations and resources” in proposed N.J.A.C. 7:26E-1.4(f) and how this information will be used. The Department did not adequately describe the need or use for this information. The Brownfield Act does not require the checklist and the requirement should be deleted from the rules.

The identification of sensitive populations and resources will be difficult, time consuming and expensive, and the information required is vague. Under the current rules if contamination has impacted an off-site property, the responsible party must notify that entity, regardless of whether it is a school, child care centers, residence or business. The purpose of the checklist is unclear. (2, 7, 8, 10, 13, 14, 18, 19, 22, 23, 24, 26)

 

57. COMMENT: Public notice requirements should be limited to the posting of a sign, with no opportunity for other parties to request additional public outreach, for site remediation activities that have little impact on the surrounding neighborhood. More extensive public notice and outreach procedures should be reserved for certain activities and the Department has failed to provide sufficient discretion as to which sites require the use of its limited resources for public outreach. The result will be fewer cases reviewed, longer delays in reviews conducted and ultimately fewer sites remediated. (13, 14, 19, 24)

 

66. COMMENT: The steps necessary to complete the requirements of these rules are onerous to a property owner attempting to clean up and rehabilitate a site. Application of these new public notification rules to all contaminated sites within the State is not necessary. The new rules represent a significant additional burden to the business and development communities in New Jersey. (13, 14, 19, 24, 25)

RESPONSE: The Department acknowledges the potential for time delays and increased costs of a remediation project. The Department believes that public notification of ongoing remedial activities will ultimately allow remediation projects to move faster by facilitating discussions sooner rather than later. The Department does not view these requirements as onerous or burdensome because the cost to implement the proposed requirements is not great.

 

121. COMMENT: People should have the opportunity to have their concerns about the remediation of contaminated sites in their neighborhoods heard by the Department and those comments should be made part of the public record. The public should be able to influence the how the remedial action is conducted.

Remediating parties should not be given the sole authority to select how remediations are implemented. The Legislature gave remediating parties that authority inappropriately. The Department should have more control over how contaminated sites are remediated. The Legislature should give the Department more authority to dictate how and to what level remediations are conducted. (27)

RESPONSE to COMMENTS 120 to 122: Historically, there has been debate about the proper level of the Department’s and the public’s involvement in the selection and approval of remedies, particularly when sites are slated for sensitive future uses such as residential or educational facilities. The Department agrees that the Department should have a greater role in selecting remedies where there is greater probability for future exposure of the public to contamination. Over the last year, the Department has been working with Stakeholders and the Legislature to address these and other issues related to the Site Remediation Program. The Department believes that these rules go a long way to helping engender public participation concerning remediation of contaminated sites.

DEP was fully aware of the real estate issues and rejected them over 1 year ago. The DEP justification:

11. COMMENT: Under subsection N.J.A.C. 7:26E-1.4(f), the Department is proposing to require the identification of sensitive populations within 200 feet of the site boundary.

Compliance with this requirement imposes a great economic burden and a drain of resources on the responsible party, yet does little to provide any actual additional benefit to the public. In fact, making such notification, absent any assessment of actual risk could cause harm to the public by creating a perception of risk that is out of proportion to the actual situation. The Department should develop a series of notification requirements that are linked to the actual level of risk to which the public is exposed. (10)

Response – …  Notification requirements are not, nor should they be, triggered by the risk of exposure to contaminants from a site. The primary goal of notification is to let people near any site know that a remediation is occurring and from where they can get information. The statute establishes the options of posting a sign or of sending notification letters, and these options are codified in these rules. The letters will provide remediating parties the opportunity to clearly explain any potential or actual risk posed by the site that may not be able to be included on the sign. The Department anticipates that more effort will be put into notification at sites that pose actual risk to their communities. Parties remediating high risk sites will probably choose to hold public meetings or conduct other outreach efforts. (@ page 9)

DEP states importance of notice, but admits – even for sensitive receptors – they can’t set priorities, even for daycares:

The Department has learned, based on its experience remediating contaminated sites over the last 20 years, that it is important to identify sensitive populations and resources that are in close proximity to a contaminated site. The Department is confident that this information will become a valuable tool in helping both the person responsible for conducting the remediation and the Department to evaluate the real and perceived risks associated with remediation. For example, if a contaminated site has several areas of concern, the checklist may provide information that could affect the order in which the areas of concern are remediated. Specifically, if there are two leaking underground storage tanks at a site, one of which is within 100 feet of a child care facility and the other of which is within 50 feet of a parking lot, the person responsible for conducting the remediation might prioritize the remediation of the tank that is near the child care facility. (@ page 6-7)

The statute establishes the options of posting a sign or of sending notification letters, and these options are codified in these rules. The letters will provide remediating parties the opportunity to clearly explain any potential or actual risk posed by the site that may not be able to be included on the sign. The Department anticipates that more effort will be put into notification at sites that pose actual risk to their communities. Parties remediating high risk sites will probably choose to hold public meetings or conduct other outreach efforts. (@ page 9)

Real estate and industry interests opposed other language notification:

18. COMMENT: Public notice should be provided in English. The law does not require that public notice be provided in any non-English language. If a municipality officially establishes and uses a non-English language for its public notices, then public notice of site remediation work should also be provided in that non-English language. It is unclear how remediating parties are to determine with any precision if non-English speaking people live in or utilize facilities within 200 feet of a contaminated site. Given the penalty provisions in this provision, any requirement to provide notification in a language other then English should be eliminated from the rules. (6, 13, 14, 19, 24)

DEP rejected all those arguments:

The Department anticipates that most remediating parties are already aware of whether a language other than English is predominantly spoken in the neighborhoods surrounding their sites. Neighborhoods where a language other than English is spoken can usually be identified by existing business and community-related signs. If the person responsible for conducting the remediation is unsure whether a language other than English is predominantly spoken by property owners and tenants, they could contact the municipality or the U.S. Census Bureau for information.

The Real estate and industry tried to keep polluters in charge, opposed direct citizen access to government and control info and raised concerns about DEP entering the loop. But again, DEP did the right thing and rejected those claims:

46. COMMENT: Notification signs will prompt concerned citizens to contact the Department prior to contacting the person performing the remediation. Even if the person performing the remediation is called first, the concerned citizen will still call the Department for confirmation of the information provided by the former. This would place a tremendous responsibility on the Department to field those calls. The Office of Community Relations (OCR), with a total of ten staffers, is woefully inadequate. Furthermore, those staffers will not have specific knowledge of the sites to provide adequate information to the callers and will have to call the case manager for answers. (13, 14, 19, 24)

RESPONSE: Although the purpose of these rules is to encourage dialogue between the public and the remediating party, the Department recognizes that some citizens will elect to contact the Department, rather than the remediating party. The Office of Community Relations staff will be able to provide callers with basic site information because the person responsible for conducting the remediation is required to submit a description of the site, the contamination and the actions being taken to that office. If the caller requires more detailed information, OCR staff will encourage them to contact remediating parties directly.

Also, the Department believes through proactive notification, communities will be receiving information that can allay the concerns of their citizens about sites being remediated nearby. This type of proactive outreach should result in fewer public inquiries from individuals in the vicinity of a contaminated site because concerns due to lack of information will arguably be curtailed.

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