NJ Senate To Consider Bill To Further Weaken NJ Toxic Site Cleanup Laws

Bill would provide liability relief based on private consultant’s certification

Significant flaws and need to strengthen NJ laws are ignored

On Thursday, the Senate Environment Committee will consider S3682, a bill that would amend and further weaken NJ’s toxic site cleanup laws, despite numerous examples where cleanup laws need to be strengthened to protect public health & restore natural resources; expand public involvement in private cleanup decisions; accelerate complete cleanups, not “pave and wave”; and stop illegal dumping and abuses of “dirty dirt” loopholes and lack of DEP enforcement.

The bill would make numerous changes in current law that would expand the powers of and economically benefit private Licensed Site Remediation Professionals (LSRP’s), including granting LSRP’s a virtual monopoly on cleanup consulting work, delegating regulatory and enforcement powers to the private LSRP Board, and providing liability relief for corporations who rely on a LSRP certified remedial action workplan. Previously, provision of liability relief was limited to and under exclusive DEP’s control. The bill would privatize this core government function.

I’d name the bill the “NJ Boeing Self Certification and Privatization of Regulatory Oversight Act”.

I wrote the following letter to sponsor Chairman Smith – I urge interested readers to weigh in with Smith and your legislator:

Dear Chairman Smith –

I write to request amendments to your bill, S3682, which would make several changes to NJ’s site remediation laws.

First of all, there are several gaps and flaws in current cleanup laws and DEP implementation that the bill fails to address. If the Legislature is re-opening the cleanup laws for amendment via S3682, I request the following issues be included in amendments:

1) what ever happened to proposed legislation to increase Spill Act liability, that would raise or eliminate the current $50 million cap?

2) what ever happened NRD standards Taskforce?

3) what ever happened to the Environmental Advisory Task Force (created by the Legislature) and DEP’s regulatory initiative to promulgate ecological cleanup standards?

4) several recent episodes, similar to the abuses and controversies in Mercer County that led to passage of P.L. 2006, c. 65, strongly indicate the need to expand public involvement the cleanup program, including in the selection of remedy that current law delegates to the responsible party.

5) Recent public controversies strongly suggest the need to restore remedy selection authority to DEP.

6) Recent controversies in Vernon and proposed legislation to respond to the SCI report on “dirty dirt” enforcement is clearly in need of amendments to enhance DEP regulatory oversight and enforcement. Those amendments could be incorporated in this bill.

7) Current law and DEP regulations address vapor intrusion in a reactive fashion on a case by case basis. Implementation experience strongly suggests the need to develop a Statewide program.

8) The Christie DEP rolled back important regulations, including soil/groundwater and vapor intrusion standards. This issues warrant legislative oversight and strengthening amendments.

9) The DEP recently issued a Spill Act Directive and AG Grewal filed litigation regarding toxic chemicals PFOA and PFAS to the same responsible parties.

The AG’s lawsuit raised many issues, including fraud and withholding and failure to disclose materially significant data and science on the public health and environmental risks.

These claims raise gray areas in current NJ law that warrant legislative consideration. But the bill fails to address any of them.

Similarly, I urge you to consider the Dupont/Chemours and Dow responses to DEP’s Spill Act Directive. The Dupont reply was written by NJ firm McCarter & English. Those responses provide a roadmap to significant gaps in NJ law.

Finally, I urge you to delete or revise the following flaws with the bill:

1)  Section 4 (p. 15-16) liability relief –

It is unsound public policy to provide liability relief, based on an LSRP certified remedial action workplan. This invites abuse and would legally equate LSRP decisions with DEP regulatory powers.

2. Section 9 – The proposed sustainable and green practice provisions lack standards and technical requirements. There are no mandatory DEP rule-making requirements, thus these provisions are voluntary and aspirational and not enforceable.

3. Section 13 – public information requests – This section would expand current law, but it puts control of information in the hands of LSRP or the polluter. This could be interpreted to undermine DEP’s obligations under OPRA. It should be amended to clarify that DEP is required to provide information for public records requested by the public pursuant to OPRA.

4. The bill would narrow the definition of “Immediate environmental concern” by deleting the current term “condition” and replacing that with “confirmed contamination”. Given the potential public health risks involved in the IEC framework, “confirmation” is too high a bar. This would undermine a precautionary public health approach. For example, in the Kiddie Kollege disaster, it took 14 weeks for DEP to “confirm” contamination, during which period toddlers were exposed to poisonous mercury vapors. I urge you to delete this proposed revision.

5. Section 21 – would delegate regulatory authority to the LSRP Board, a private entity.

This raises a host of signifiant legal and policy concerns, including constitutional issues about delegating regulatory authority to private entities.It also could be interpreted or applied in a way that undermines DEP’s exclusive enforcement authority. I urge you to delete this proposed revision.

6. Section 22 – This section should be amended to address situations where LSRP’s and/or responsible party withhold material data or science or information. See AG Grewal’s lawsuit on PFOA/PFAS for illustrations.

The standard for LSRP certification is proposed to be based on “belief” – This should be strengthened to require the LSRP base certification on “verified” data and/or “confirmed” information

7. The bill would revise IEC notification standards and obligations to require that the LSRP must “obtain specific knowledge”. Again, similar to the proposed change to the definition of IEC, this is not precautionary and undermines a public health approach.

8. Section 23 –  This section is based on”specific knowledge” of IEC – again, this is a too restrictive standard.

9. section 25 – Defines the LSRP’s obligation to submit records, as limited to those “prepared or relied upon” –

There could be cases where data or documents were rejected, withheld and/or not “relied upon”. This standard needs to be expanded to require full disclosure of all data, documents and information.

9. Section 26 – Would reduce and undermine DEP direct oversight. This would undermine accountability to statutory and regulatory cleanup deadlines and inject further unacceptable delays in cleanup. These provisions should be deleted.

Additionally, this section would undermine deadlines and DEP direct oversight at federal sites. For an example of why this is ill advised, consider the fact that Dupont Pompton Lakes is a federal RCRA corrective action site. There are approximately 100 similar EPA federal RCRA Corrective Action sites in NJ that would be impacted adversely by this provision.

10. The bill would also weaken direct DEP oversight by allowing consideration of vague standards, such as financial hardship, and provide unbounded discretion to DEP to waive direct oversight requirements “in the public interest”. These provisions should be deleted.

I appreciate your favorable consideration. Please enter these comments in the record on the bill.

Respectfully,

Bill Wolfe