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Superfund decisions should be based on science & risk, not politics & economics

[Update: 11/9/15 – Small victory. The Senate Environment Committee held the bill today – many thanks to Acting Chair Linda Greenstein for listening to testimony (listen here). More to follow. ~~~ end update]

This might sound innocuous, or even a good idea, but it’s not: (Assembly statement)

The bill requires the Department of Environmental Protection (DEP) to prepare a report and conduct a public hearing prior to recommending a site for inclusion on the federal Superfund list.

Let me explain why. (I previously wrote about this legislation last March when it was considered by the Assembly).

Under the guise of providing transparency and additional public involvement in how the State DEP recommends to US EPA that specific NJ sites be listed under the federal Superfund program, tomorrow the Senate Environment Committee will hear proposed legislation (A2340/S2562) that would inject politics into whether DEP makes Superfund listing recommendations to EPA.

The bill grew out of DEP’s recommendations to US EPA that sites in Assemblyman Greenwald’s district be added to the Superfund list.

Greenwald and local officials opposed the DEP’s listing and apparently DEP made the recommendation to EPA without first consulting with local officials and Assemblyman Greenwald.

The legislation is Greenwald’s retaliation for that.

If you want to understand the kind of political and economic issues that Greenwald is advocating, just look at how he intervened and the arguments he made to block a US EPA proposed Superfund listing of the Troy Chemical site in Newark, more than 80 miles from his district. These concerns have little to do with better protections for public health and the environment – and note how Greenwald mentions his proposed legislation.

As I wrote: (wonks can read the full post to get all the details):

Greenwald wrote to EPA on March 18, 2013.  His attack was not limited to the EPA proposed Troy Chemical NPL listing, but also praised Troy Chemical, criticized the entire Superfund program as a “time consuming cost prohibitive process“, and mentioned his NJ State legislation. Greenwald wrote  [see EPA Administrative Record for full letter]:

Designating Troy’s Newark facility a Superfund site only would serve to hurt its current manufacturing employees, a segment of New Jersey’s workforce that is critically important to the state’s long term economic growth. Having recently been briefed on Troy’s current remedial efforts pertaining to its Newark property, I believe that this remedial effort must be allowed to continue without delay….

As an elected official I feel it is necessary to also mention that Troy is a good corporate neighbor to Newark. …

Additionally, I am the sponsor of legislation at the state level that would require the New Jersey Department of Environmental Protection to prepare a report and conduct a public hearing prior to recommending a site for inclusion on the federal Superfund list

As a State Assemblyman, Greenwald has little political influence on US EPA. Fortunately, EPA did the right thing a Troy Chemical and finalized the proposed Superfund listing that Greenwald opposed.

But as a leader of the Assembly Democrats (and former Budget Committee Chair), Greenwald wields significant power over NJ DEP, a power he has used to leverage DEP in the past.

The Superfund Listing Process is a Black Box

We’ve done a lot of work of the Superfund listing process, both at US EPA and at NJ DEP.

That effort including filing a Freedom of Information Act (FOIA) lawsuit against EPA to procure documents regarding the Superfund listing process in NJ.

We were disturbed by what we found (for details, see:

• TWENTY SEVEN NEW JERSEY SUPERFUND-ELIGIBLE SITES LEFT OFF LIST –EPA Still Reviewing Status of Unknown Number of Garden State Toxic Hotspots

Washington, DC — New Jersey already has the most Superfund sites of any state but could have many more according to U.S. Environmental Protection Agency documents obtained through a lawsuit by Public Employees for Environmental Responsibility (PEER).  More than a score of sites in New Jersey pose risks equal to or greater than Superfund-listed sites, yet these uncontrolled sites were not added to the Superfund National Priority List for clean-up by EPA.

Full Report:

• EPA DISCLOSES NINE MORE SUPERFUND-ELIGIBLE SITES IN NEW JERSEY – Thirty Five Sites Passed Over for Superfund Relief; One More Site Still Pending

Washington, DC — Days after revealing that it did not act on 27 Superfund-eligible sites in New Jersey, the U.S. Environmental Protection Agency now admits that there are nine more such sites, according to agency records surrendered in a lawsuit brought by Public Employees for Environmental Responsibility (PEER).  EPA is still considering Superfund listing for one site in Essex County but has decided not to list the other eight.

Full Report:

There is no doubt that the decision to recommend a site for Superfund listing has significant public health, environmental and economic implications for a community and that the DEP should have scientifically based reasons for making a listing recommendation and that the public should have a voice in those decisions.

There are dozens of towns in NJ that have sites that meet or exceed Superfund listing qualification in terms of risks to human health and the environment that are not being listed on Superfund or that DEP is not recommending to EPA for listing. Pompton Lakes is the poster child for that, where local officials and Dupont have blocked EPA Superfund oversight and RCRA enforcement.

This is especially critical because EPA has adopted a policy that essentially requires State support before EPA will list a site, so DEP can frustrate feral law by inaction.

Real Reforms Lacking

If Assemblyman Greenwald were serious about reforming the Superfund listing process and providing opportunities for the public to be aware of risks in their communities and participate in the process, he would include things like:

• require disclosure of all Superfund “Hazard Ranking Scores ” (HRS) at all NJ sites. An HRS is a point based system to estimate risks to human health and the environment. Sites that score greater than 28.5 are eligible for Superfund listing. The public has a right to know about these risks.

• require that DEP adopt and implement the “Remedial Priority System” (RPS), including direct DEP oversight of high risk sites, and disclose a list of risk based sites in NJ. The RPS was required by amendment to the Spill Act over 30 years ago, and more recently mandated by the 2009 Site Remediation reform Act. The legislature mandated that the RPS be adopted and implemented in DEP’s cleanup program by May, 7, 2010 (one year after enactment). DEP has flouted that legislative mandate for over 5 years.

• Include vapor intrusion pathway in DEP Report, risk screening, and risk assessment Here is EPA’s Federal Register Notice proposed revision of the Superfund revision to include vapor intrusion (Jan. 31, 2011):

http://www.epa.gov/superfund/sites/npl/a110131.pdf

• Provide a public petition process to request that DEP conduct a Preliminary Assessment, SIte Investigation, and Hazard Ranking Score This recommended amendment is based on existing federal CERCLA and EPA Superfund Guidance, that provides an opportunity for the public to nominate sites for EPA’s NPL consideration. See this link for that EPA Guidance, which can be used to draft this amendment. The EPA Guidance lays out the content requirements and review process for a petition.

http://www.epa.gov/superfund/programs/npl_hrs/papetition_oct02.pdf