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DEP Presents New “Technical Impracticability Guidance”

Groundwater Cleanup Just Too Costly for The Christie Crew

Current and Future Water Supplies at Risk

The DEP’s “Technical Impracticability Guidance” will allow polluters to avoid having to install and operate costly groundwater cleanup systems at potentially hundreds of sites, and it also will allow polluters to “turn off” and abandon existing groundwater pump and treat systems currently operating at hundreds of sites.

Amazingly, DEP has not even analyzed the risks and impacts of  doing this.  ~~~ Bill Wolfe

Ironically, DEP is doing with toxic chemicals in groundwater what we should be doing with fossil fuels: leaving them in the ground.

To a small audience of about 35 industry cleanup contractors (AKA “mercenaries” or officially as “Licensed Site Remediation Professionals, LSRPs), today (2/19/14) DEP presented their new Technical Impracticability Guidance for Groundwater (“TI”).

I recently provided an overview of that, see:  Christie DEP Creates Major Loophole in Groundwater Pollution Cleanup Requirements.

I’d like to say I was stunned by what I heard today, but I’d be lying.

Long ago, originally in the 1993 conversion of ECRA to ISRA and expanded in 1997 Brownfields law, in fact, toxic polluters got relief from permanent and complete cleanups at toxic sites when NJ’s cleanup laws were gutted to allow “engineering and institutional controls” – a legal euphemism for capping contaminated soil in place (instead of excavating it) and filing a deed notice to warn prospective property owners of contamination – what environmentalists deride as “pave and wave”.

But those loopholes were limited to soils, not groundwater, which remained strictly regulated as a potential source of current and future public water supply.

It’s been obvious for a long time that DEP has been running away from enforcing strict groundwater standards as toxic site cleanup requirements. To provide relief, DEP devised various loopholes in the groundwater standards, including a mechanism to define where they don’t apply (i.e. a “Classification Exception Area” (CEA)), and to allow passive remedies and “natural attenuation” where pollution is left in place and just monitored.

But now, DEP has abandoned any regulatory role in site remediation – soils and groundwater – and now has become a servant of the polluters and their consultants under the privatization scheme in the 2009 Site Remediation Reform Act (SRRA).

The DEP has become so flaccid, that DEP now even puts that in writing with caveats in the powerpoint they presented yesterday, like this:

“The TI determination is a collaborative process – This is a service not an approval.”

So I came to today’s DEP presentation to ask a series of skeptical questions designed to bring all this out.

Despite a few mild DEP attempts to limit my time, I managed to ask each one and make a few critical observations. DEP managers even managed to respond to a few of them – remarkably, one DEP manager agreed that I made a valid point about lack of public involvement – for which I give them credit.

But instead of going point by point through the DEP’s thorough presentation (which I assume will soon be posted on line, which I will link here), I’ll just run through my list of questions on what I view as the key flaws (and there are several):

1. Origin – justification – need

Before I could ask this question, it was answered by the DEP presentation.

The origin of the issue was when TI was selected by an industry dominated “Technical Guidance Committee” in 2010. Those committees formed to help design and implement the new SRRA program.

The justification and need for TI were never clearly articulated, but it is obvious that the overall policy object was to provide “regulatory relief” and reduction in compliance costs, in accordance with the policy Gov. Christie announced in Executive Order #2 and the criticisms in the Christie “DEP Transition Report”.

So, the origins were really bad and DEP staffers were basically put in a position of doing damage control to policy dictates from the Legislature, Governor, Commissioner, and powerful corporate interests with huge economic stakes in site remediation and redevelopment.

2. Legislative authority and basis

I got to ask what the legislative basis for the TI Guidance was.

The DEP presenter, surprisingly, said there was none.

As I began an big “I told you so and you can’t do that”, another DEP manager jumped into the conversation to explain that the SRRA provides legislative authority to DEP to develop Guiance documents.

I was deeply involved in the Legislative consideration of the SRRA and I can assure you that there was no discussion of rolling back standards, no mention of “technical impracticability”, and absolutely no legislative intent to weaken groundwater standards and drinking water protections. In fact, just the opposite: there were multiple assurances that the standards would NOT be weakened.

DEP is acting lawlessly and inconsistent with law.

If this Guidance were a proposed regulation, it could be struck down as inconsistent with legislative intent. But the Legislature has no specific power over Guidance, other than oversight and budget powers.

3. Inconsistency with recent legislative ban on Guidance documents

In January 2012, Governor Christie signed a law that prohibits the use of Guidance documents, and directs State agencies to follow rule making procedures, see P.L. 2011, c. 215

The legislation was an industry backed bill that was targeted at DEP and I testified in opposition to it as it move through the Legislature (NJ Spotlight 3/4/10)

The action by the committee, recently reconstituted by the Democratic leadership in the Legislature, drew strong criticism from environmental advocates who argued it could undermine public health and environmental protections.

“There is need for discretion,” said Bill Wolfe, of New Jersey Public Employees for Environmental Responsibility (PEER), an employee watchdog group and former DEP manager, who feared the bill might handcuff the agency in protecting public health. “It may take away the current enforcement discretion of the department, which would be bad.”

I wrote about it when it passed both houses and was sent to Gov. Christie, see:  Bill Banning Enforcement of Guidance Moves to Governor Christie’s Desk

The hypocrisy of the chemical industry persuading the Legislature to pass a bill banning guidance documents, and then later using those same Guidance documents as cover for ruling back groundwater cleanup requirements is stunning.

4. Lack of enforceability

The ban on Guidance documents also includes a provision that prohibits the enforcement of anything in a Guidance document:

c.     A regulatory guidance document that has not been adopted as a rule pursuant to P.L.1968, c.410, shall not:

(1)   impose any new or additional requirements that are not included in the State or federal law or rule that the regulatory guidance document is intended to clarify or explain; or

(2)   be used by the State agency as a substitute for the State or federal law or rule for enforcement purposes.

So the few safeguards that are in the DEP TI Guidance can not be enforced. DEP admitted this several times.

Worse, under the SRRA, the LSRP’s are given the authority to use “best professional judgement” to ignore any DEP Guidance document or regulatory requirement.

DEP will not be able to enforce the TI Guidance and otherwise control the decisions of private LSRP’s.

So, by opening the door to consideration of cost and technical impracticability, DEP has invited a one way tidal wave for polluters to walk away from cleanup obligations and after having invited it, there is nothing DEP can do to stop that walk away.

5.  Universe of eligible sites

DEP’s TI Guidance lays out several broad factors that define the conditions under which a TI determination may appropriately be made. These factors include hydrology, chemistry, and technology.

They are so broad, that virtually any contaminated groundwater site may be eligible. Ten years ago, there were over 6,000 groundwater contamination sites, and hundreds  more have been discovered since then.

I asked DEP how many sites and how big a land area of the state meet those factors – DEP could not even provide an answer.

6. Expected number of TI cases

When I worked at DEP, before DEP could implement a significant new and resource intensive policy and program, we were required to quantify things like the expected caseload, the staff workload, and the budget for that program. We also would have to design internal review procedures.

So, I asked DEP how many TI cases they projected – would it be 20? 200? 2,000? DId they have staff to manage what appeared to be a very complex program?

Again, DEP had no idea how many TI cases they would become involved in – DEP had not estimated the universe of case, had conducted no workload analysis, had no projected case load, and no budget for the TI program or implementation of the TI Guidance.

This is stunning – a remarkable mismanagement bordering on incompetence. All under the leadership of that private sector management consultant, Bob Martin. Way to go Bob, heck of a Job!

7. Questionable ability to protect human health and the environment –  regional impacts – future changes in land and water use

The TI Guidance suggests that before a TI determination can be made, the LSRP must show that human health and the environment will be protected.

In addition to not being enforceable and allowing the LSRP to make a determination that is an essential governmental role (i.e. protection of public health and drinking water), the TI Guidance is seriously flawed because it is limited to current site conditions, current adjacent land uses, and current uses of the groundwater.

Future nearby land or groundwater uses may change, which increase the human exposure or risks.

One example offered by DEP in response to my question on future conditions was that a town may decide to drill a water supply well nearby.

Amazingly, by allowing polluters to walk away from groundwater cleanups, the DEP is effectively condemning nearby land and limiting future water supply.

8. Inappropriate and unauthorized consideration of costs

DEP stressed that cost was a “secondary consideration” – but that was a thin veneer for the real underlying economic motivation that is driving the TI process.

None of the various site remediation laws – Spill Act, ISRA, Brownfields, and SRRA – authorize DEP to explicitly consider and balance the costs of compliance against protection of public health and the environment. Yet, that is exactly what the TI Guidance allows private LSRP’s to do in deciding whether to walk away from groundwater cleanup requirements.

DEP offered a case study to illustrate the economic implications:

In one case, DEP spent $1.75 million on a groundwater cleanup system. That system cost $200,000 per year to operate.

The TI Guidance will allow polluters to not only avoid having to install and operate these costly systems at potentially hundreds of sites, but it also wil allow polluters to “turn off” and abandon existing groundwater pump and treat systems currently operating at hundreds of sites.

9. Lack of public involvement in DEP Task Forces, which are 100% industry dominated

The need for the TI Guidance was justified and developed by a Committee comprised of all industry representative. There were no environmentalists, no academics, and no public interests representatives on this Committee.

That is totally unacceptable and leads to a biased process and rollbacks of protections of public health and the environment.

10. Lack of transparency and public involvement in implementation

The data gathering, analysis, and decisions about whether or not to cleanup groundwater and protect public water supplies are made by private LSRP.

These decisions have significant impacts not only on health and the environment, but on the value and ability to develop nearby properties. The presence of groundwater contamination makes water supply wells impossible and can effectively condemn properly or strictly limit the ability to develop it or the intensity and type of development.

If government regulations or local zoning did this, it would be attacked by business groups and land owners are a “taking”.

There is no involvement and no review by the public, local government, or impacted nearby property owners. The TI decisions are made by LSRP’s in the dark.

11. The TI is an end run around existing law and regulation for classification of aquifers and site specific relief

The TI Guidance represents an ill advised reversal of longstanding policy on groundwater as public water supply

Groundwater in NJ has long been defined as a public resource and strictly regulated as a public water supply.

But, the law and DEP regulations have allowed site specific exemptions to this policy, if scientifically justified and done with full transparency and public participation.

The mechanism for site specific relief from strict application of groundwater cleanup standards is to reclassify the groundwater as non-potable, i.e. a Class II-B aquifer.

The TI Guidance amounts to an end run around the strict scientific standards and transparency requirements for aquifer reclassification.

12. Misleading to present as consistent with USEPA Superfund program Guidance

DEP states that the TI Guidance is based upon federal US EPA Superfund “Technical Impraticability Waiver Guidance” (it is interesting to note that EPA calls it what it is: a WAIVER – but DEP lies and calls is Guidance). By doing this, DEP implies that the NJ TI Guidance is as protective as the federal Guidance.

But this is highly misleading because the EPA TI Waiver is issued by EPA staff and part of an open and transpsrecnt public process in the Superfund program. All technical judgements, policy calls, and final decisions ae made by EPA and subject to public review.

In contrast, the NJ DEP TI Guidance is administered by private lSRP’s with little NJ DEP oversight. There is no transparency, no public involvement, and no oversight. This is a recipe for disaster (or should I echo that famous Presidential debate line about “that giant sucking sound” on loss of jobs due to NAFTA).

13. Wrong Approach to Groundwater

Groundwater is our current and future water supply and it is linked to and has impacts on the quality of surface water and ecosystems.

It must be careful managed and strictly regulated by a public agency like DEP through open, participatory, and science based planning and regulatory processes.

The SRRA and now this DEP TI Guidance abdicate that DEP responsibility and give private corporate entities effective control over the quality of our groundwater and drinking water supplies.

14. Ill advised reversal of longstanding policy on groundwater as public water supply

Groundwater in NJ has long been defined as a public resource and strictly regulated as a public water supply.

But, the law and DEP regulations have allowed site specific exemptions to this policy, if scientifically justified and done with full transparency and public participation.

The mechanism for site specific relief from strict application of groundwater cleanup standards is to reclassify the groundwater as non-potable, i.e. Class II-B aquifer.

The TI Guidance amounts to an end run around the strict scientific standards and transparency requirements for aquifer reclassification.