NJ Gov. Murphy DEP Weakening State Toxic Cleanup Regulations
DEP Will Now Allow Volatile Organic Chemicals To Permanently Pollute Groundwater
McCabe Reversed Decades Old DEP Prohibition On “Caps” Over Volatile Chemicals
Major Victory For Corporate Polluters Who Will Save Billions In Cleanup Costs
It is easy for DEP Commissioner McCabe to criticize Trump EPA rollbacks.
But to do so while your own DEP is rolling back historical protections is shameful and inexcusable hypocrisy.
I knew the deal was in last May, when Gov. Murphy’s new (still acting at the time) DEP Commissioner Catherine McCabe joined Trump EPA Administrator Pruitt to praise his new Superfund policy, see:
… What was she thinking?
McCabe is dead wrong not only on the optics, but on the policy as well.Wonder if she’s read the Pruitt EPA Superfund Task Force Report?
I wonder if McCabe understands that NJ’s now cleanup law she touts as a model for Superfund, was privatized under the Corzine Administration and Lisa Jackson’s leadership?
So, it was no surprise to learn that McCabe’s DEP just reversed a decades old DEP toxic site cleanup policy that prohibited the use of so called “caps” over soil and groundwater contaminated with toxic volatile organic chemicals (so called VOC’s).
In spite of highly touted pending legislation to protect NJ residents from Trump EPA regulatory rollbacks, the radical new DEP policy was quietly developed behind closed doors with huge influence by corporate polluters and their paid consultants:
Take a look at the industry dominated groups that wrote them. I counted 71 representatives of regulated industry or paid industry consultants – and not one public member, environmental group member, local government representative, or independent scientific or academic expert.
That Sham Stakeholder process is still part of the Murphy Administration’s DEP and still part of the DEP website (see this link for documents). Note that it is prominently displayed on the DEP website, just under the photo of Commissioner McCabe.
In fact, the McCabe DEP has expressly supported that Sham – the DEP website states (my emphasis):
Site Remediation Program Stakeholder Process
Acting Commissioner McCabe and Assistant Commissioner Pedersen believe that working with a broad range of stakeholders is essential to continuing the growth and success of the Licensed Site Remediation Professional (LSRP) program. To this end, the Department continues to implement an extensive stakeholder process to address general program issues, rules, and guidance.
How can 71 industry representatives and zero public, environmental or academic represeantives possibly constitute a “broad range of stakeholders”? Echoes of George Orwell!
The Guidance was recently implemented in January 2019 with no public awareness or involvement, see:
VOC’s are the worst of the worst chemicals. They are highly toxic human carcinogens that are highly mobile in soils and groundwater, allowing them to disperse widely in soils and groundwater to pollute drinking water wells.
They also migrate upward creating “vapor intrusion” and expose people to carcinogens in their homes.
The Dupont Pompton Lakes site is the poster child for these problems caused by VOC’s in soils and groundwater.
Dupont currently has a cleanup plan for the Pompton Lakes site before the DEP. If allowed to go forward, this new DEP Guidance would apply to that proposed cleanup plan and let Dupont off the hook for complete cleanup of all contaminated soils and groundwater.
This would increase cancer risks to the people of Pompton Lakes and save Dupont millions of dollars in cleanup costs.
Amazingly, in the Guidance document, DEP openly admits that they are rolling back an existing prohibition of caps over VOC soil and groundwater and explains why the prior protective prohibition existed. DEP Guidance (@ p.3):
Previously, capping as a remedial option to prevent contaminants from impacting the ground water was not permitted by the Department, although capping has been allowed at sites for other reasons if the remedy for the Impact to Ground Water Pathway did not depend on the presence of the cap. In 2014, the Department released Capping of Inorganic and Semi-volatile Contaminants for the Impact to Ground Water Pathway guidance that allows for capping of inorganic and semi-volatile organic contaminants as a method to specifically address the impact to ground water pathway under certain conditions (www.nj.gov/dep/srp/guidance/rs/). Volatile contaminants were not included in the 2014 guidance because these contaminants may still migrate downwards, even in the absence of infiltrating rainwater when a site is capped, via vapor phase diffusion. This complicating factor regarding the capping of volatiles has now been addressed and capping as a remedy for addressing exceedances of default Impact to Ground Water Soil Screening Levels (IGWSSLs) and/or site-specific Impact to Ground Water Soil Remediation Standards (IGWSRSs) is now permitted under certain conditions for volatile contaminants.
The new DEP Guidance document will impact not only the Dupont Pompton Lakes site, but potentially hundreds of sites across the State. It is actually worse than the Christie DEP rollbacks to groundwater cleanup requirements.
Major corporate polluters have been seeking this specific “regulatory relief” from DEP for decades.
The allowance of “caps” – instead of complete excavation of VOC contaminated soils and treatment of groundwater – will shift risks to drinking water, surface water and the likelihood of residential exposure to vapor intrusion – like the 450 homes in Pompton Lakes.
The radical new DEP rollback policy announced in the Guidance document applies Statewide uniformly to hundreds of sites. It would have dramatic substantive economic, environmental and public health impacts.
Because of this, it meets the criteria the NJ Supreme Court found require administrative rule-making procedures.
That NJ Supreme Court decision is known as the “Metro-media” decision (hit link for the Court’s opinion).
However, the DEP Guidance rollback was not adopted by DEP pursuant to rule making procedures.
Therefore, because the DEP’s radical new rollback Guidance document meets the Court’s criteria for defining a regulation and triggering rule-making procedures, and because it has not been subject to public notice and comment rule-making procedures, it violates the law and is vulnerable to legal challenge.
Calling the legal eagles! This DEP move can not stand!
It is easy for DEP Commissioner McCabe to criticize Trump EPA rollbacks.
But to do so while your DEP is rolling back historical protections is shameful and inexcusable hypocrisy.
[End Note: for context on “caps”:
In NJ law, capping is an “institutional control” – or a “non-permanent” “passive” remedy (sometime derided as “pave and wave”). Prior NJ law emphasized “permanent remedies”, i.e. complete cleanup of soil and groundwater: excavation of contaminated soils and treatment on groundwater.
Allowing institutional controls in lieu of permanent cleanups was part of the gutting on NJ’s ECRA law in 1993. ECRA was replaced by ISRA, see:
http://www.currenenvironmental.com/njdep-isra-process
Other NJ cleanup laws were further gutted in the 1997 Brownfield law.
The Corzine/Lisa Jackson 2009 privatization was the final nail in the coffin.
The NJ rollbacks were part of a national campaign run by the corporate polluters to reduce cleanup costs and liability .
To do this, industry lobbyists and lawyers were able to get “risk based” decision-making into Superfund. Caps were allowed to replace “permanent remedies” based on alleged acceptable risks, i.e. control of human exposure instead of removal of the contaminated soil and groundwater.