“Dirty Dirt” is Dangerous – and Ignored

DEP Ignores Waste Regulations – Falsely Claims “Buyers Beware”

“It’s very much buyer beware,” said Larry Ragonese, a DEP spokesman.

~~~ Bergen Record (March 11, 2012)

[Important Updates below]

I’ve often written about loopholes in DEP regulations and the environmental and health risks posed by lack of effective State and local oversight of contaminated soils, AKA “Dirty Dirt” (h/t Jeff Tittel for coining that phrase).

In addition to soils, DEP has lax oversight of a whole range of dangerous and frequently toxic and high volume wastes – from construction/demolition debris, to dredge spoils and other industrial residuals, like coal and incinerators ash (e.g. see  this July 28, 2008 post about a criminal conviction for contaminated soil disposal: Jail Time for Dirty Dirt – Who’s Next?  [also see: “Recapping a Fiasco” my Bergen Record Op-Ed of May 25, 2008 about illegal contaminated soil imports to Encap, see also:

• Soil coverup shows DEP’s lack of  power, critics say].

The lack of oversight results in toxic materials being commingled with products sold and widely distributed in commerce, from “clean top soil”, to compost, home insulation, and fertilizers (see this for more examples in other states nationally).

People are unknowingly and needlessly exposed to toxics, and local taxpayers often pick up the costly cleanup tab.

As I said in a February 8, 2012 Bergen Record story on soil contamination that closed Votee Park in Teaneck:

“This stuff happens again and again and again, and nobody is connecting the underlying dots,” Wolfe said. “Are there laws in place to do this, and who is responsible for enforcing them? The answer is there are laws in place, but the government is completely asleep at the wheel. And the towns are left holding the bag.”

It’s a complex story, so of course few depleted main stream outlets or reporters will spend the mental energy and time investigating it.

Yet, highly visible problems and costly controversies regularly erupt from the resulting contamination. The stories and problems caused by lax oversight are legion and statewide: from Encap, to toxic soil from a Ford Edison plant cleanup used at 19 residential construction sites in central NJ, to pesticide contaminated soils at schools and School Construction Corp. sites, and to the importation of contaminated soil that cost taxpayers $25 million at Trenton’s Martin Luther King School construction fiasco.

As I testified to the Legislature way back in June 2006, risks from dirty dirt included lax oversight of the cleanup process (e.g. contaminated soils are laundered and commingled and sold as clean fill). Reforms I suggested, included::

So , in response to a recent legislative hearing on reforms and the Record’s coverage of the Votee Park problem, I emailed Record reporter Denisa Superville.

And in a recent post, I laid it all out on a platter for some  intrepid journalist to run with. I wrote:

for those that like to get down in the weeds, here are some regulatory rocks to turn over at DEP, to wake the sleeping giant:

• waste classification guidance and various material Technical manuals
• universal waste
• recycling facility exemptions
• recycling for builders and demolition contractors
• class b recycling facilities and recycling enforcement

Unfortunately, the “intrepid journalist” that was assigned (or stole) the followup story was Scott Fallon, a reporter who regularly lets DEP blow smoke up his ass.

For example, here’s a real serious and basic fact error he made in his story today.

The effect of this error is to allow DEP and polluters to dodge accountability. Read this closely and see how. Fallon wrote:

Contaminated fill “often a mixture of soil and construction debris” brought in decades ago to help level the fields at Votee and Veterans is the likely culprit. Yet there are no safeguards to prevent similar contamination from happening elsewhere. Those who oversee parks are on their own when it comes to ensuring that the soil they use is safe, says the state Department of Environmental Protection.

“It’s very much buyer beware,” said Larry Ragonese, a DEP spokesman.

Fill comes from a variety of sources, from soil excavated for building projects to pulverized concrete from demolition debris. While concrete is required to be tested at demolition sites before it can be recycled, no such DEP regulations exist for soil.

That is just completely factually false.

So let me break it down for Mr. Fallon and his readers:

• There are DEP regulations that apply;
• There is a DEP waste classification and regulatory program “to prevent similar contamination from happening elsewhere”;
• construction and demolition waste is regulated by DEP
• contaminated soil is regulated by DEP
• it is the waste generator’s legal responsibility to classify his waste

To save Fallon the effort of hitting the link, here is a relevant excerpt from one DEP program that proves DEP press office and Fallon’a reporting are factually in error:

Solid and Hazardous Waste Management Program – Guidance Document For Waste Classification

Waste classification is a service provided to the public by the New Jersey Department of Environmental Protection’s (the Department) Solid and Hazardous Waste Management Program, Bureau of Landfill and Hazardous Waste Permitting (Bureau). The Bureau’s waste classification process functions as support for industry, business, government, and individuals that generate waste and need assistance in determining whether a waste is non-hazardous or hazardous as defined in the New Jersey hazardous waste regulations at N.J.A.C. 7:26G-1, 3-12 et seq. These regulations state that it is the responsibility of the waste generator to determine whether the waste generated is hazardous in accordance with the definition stated in N.J.A.C. 7:26G-5.1 et seq.

TYPES OF WASTE CLASSIFIED

Examples of some types of waste classified include the following:

1. Soil contaminated with virgin petroleum fuel only.
2. Soil contaminated with waste oil.
3. Soil contaminated with process waste.
4. Soil contaminated with virgin chemicals.
5. Soil, N.O.S.^*
6. Spill cleanup waste (non-soil).
7. Ash from fossil fuel combustion.
8. Ash from waste incineration.
9. Dredge spoils.
10. Sewage sludge.
11. Process waste sludge.
12. Sludge, N.O.S.*
13. Waste oil.
14. Grit and screenings.
15. Contaminated water.
16. Municipal waste.
17. Empty containers.
18. Household exempt waste.
19. Construction/ demo debris.
20. Product/ raw materials.
21. Process waste, N.O.S.* Not Otherwise Specified

PROCEDURES FOR OBTAINING REPRESENTATIVE SAMPLES OF WASTE – end excerpt

It’s no secret that Fallon does not like me – he phoned me not so long ago to scream at me for  criticizing his “derivative” and “he said/she said” and crappy failed accountability brand of journalism (he must like the DEP press office smoke up his ass).

Fallon would prefer to get the story wrong and mislead his readers, rather than call me and get it right. That is unprofessional.

Worse, Fallon pulls this shit despite the fact that I was the quoted source in the Votee Park story that set up story that he is specifically rebutting with his false and misleading coverage (see above failure to “connect the dots” quote).

This is despite my expertise, and despite the fact that I laid out the applicable DEP regulations on a silver platter for him (which he obviously didn’t read, or he would not have gotten smoke blown up his ass by DEP).

And on top of all that, Fallon ignored directly relevant the pending legislation – S1355 sponsored by Bergen County Senator  Robert Gordon no less – that would address some of the loopholes.

The Gordon bill would require plans, specification, and bid proposal documents for certain local public contracts too address soil contamination.

The bill was released by the Senate Environmental Committee just days ago, on February 27, 2012.

Yet the Record didn’t even cover the legislation and Fallon ignored it too, while giving DEP a pass.

*Pathetic.

[* Instead of enforcing regulations, DEP ignores them.

Instead of the press holding DEP accountable for irresponsible lack of oversight and enforcement, they provide excuses for doing nothing.

[Update #1: And DEP is not the only problem – county and local governments are looking the other way as well. In that Feb 8 Record article, I also said this:

Bill Wolfe, the director of the state Chapter of the Public Employees for Environmental Responsibility, said towns are not likely to test the soil at their public parks without being required to.

“A town can say voluntarily, to be precautionary, we are going to go out and look and sample the parks and public spaces, that we want to protect our residents because we care,” he said.

“There is not a town in the state that’s doing that, because it costs money,” he added. “It’s as simple as that. If they don’t have to do it, they won’t do it. You literally have to make them do it, and that, to me, is unfortunate.”

[Update #2 – 9/3/12 – Bergen Record column by Mike Kelley lays out the story: Tainted soil is everywhere, but where did it all com from?

Whatever the reason for the contamination, some environmentalists are calling for upgraded monitoring to stop future dumping. One proposal calls for random testing of soil-laden dump trucks cruising New Jersey’s roads.

“It’s like drug testing of athletes,” said Bill Wolfe, the New Jersey representative for Public Employees for Environmental Responsibility, a national group of former government environmental officials. “If dumpers know they might get caught and know the penalty is high, they won’t do it.”

Ooops, I forgot – the Christie DEP doesn’t do enforcement anymore.