Murphy DEP Proposes Huge New Loopholes In Toxic Site Cleanup Standards

Posted on April 6, 2020 by Bill Wolfe

Wrong Time To Weaken Public Health Protections

DEP fails to even commit to holding a public hearing

Proposal must be withdrawn until COVID emergency is over

[Technical updates provided below]

I know I said I was done with NJ and public health standards, but I’m still on various DEP regulatory list serves and after just now reading this, I couldn’t resist.

The Murphy DEP just proposed new rules that would, among other things, expand an existing loophole and create entire new categories of loopholes in toxic site cleanup standards.

Here is the language in the DEP summary of the proposal which attempts to explain these loopholes:

Both the existing and proposed rules also allow the person responsible for conducting the remediation to request an alternative remediation standard for a specific area of concern.   The DEP proposes to expand the availability of interim remediation standards to soil leachate, ground water, and indoor air (there is no authority to use interim remediation standards for surface water).

I) “Alternatives” let polluters control “cleanups”, further reduce corporate costs, & increase risks to public health and the environment

“Alternative remedial standards” (ARS) are essentially a mechanism to provide relief, or a waiver, from current strict standards, on a site specific basis. They allow the hired guns (AKA “LSRP’s, or “mercenaries”) for polluters to come in to DEP, meet off the record secretly with DEP staff, and request that they cleanup a site under weaker standards. Use of ARS greatly reduces cleanup costs and likely increases risks to human health and the environment.

DEP is proposing the “expand” the current ARS:

  • Expansion of the existing alternative remediation standards process at N.J.A.C. 7:26D-7 to include soil and soil leachate for the migration to ground water exposure pathway and indoor air; (see p.4)

Given that NJ DEP’s cleanup program was privatized, the effected public and impacted community have virtually no knowledge of or ability to participate in these “alternative” cleanups. It would be as if you could ask the cop to give you a break from a 55 mph speed limit because there were no cars on the road so it was OK to speed.

DEP is proposing to expand site specific ARS despite the fact that DEP finally acknowledged that uniform statewide standards are more enforceable than site specific standards:

Replacement of the development of site-specific soil remediation standards for the impact to ground water exposure pathway with codified soil and soil leachate remediation standards for the migration to ground water exposure pathway, which a stronger basis for the Department to enforce the regulated community’s compliance with promulgated remediation standards, as compared to existing screening levels that need to be established as site-specific standards for contaminated sites. (p. 4)

And there is a reason why there are “no interim remediation standards for surface water” – such an egregious loophole proposed by a State would violate the federal Clean Water Act. Even the Trump EPA would never let a State get away with that – and neither should NJ environmental groups, media, and legislators.

II) Current cleanup standards are weakened

In addition, the proposal eliminates current cleanup standards for some chemicals and rolls back existing standards for some chemicals. These are huge red flags:

  • Deletion of remediation standards for existing chemicals and addition of remediation standards for new chemicals based upon routine detection, routine analysis, and available toxicity information;

  • Use of updated toxicity factors, exposure assumptions, and chemical and physical factors, resulting in some numerical changes to the existing remediation standards;

The DEP summary failed to list, name, or quantify the number of chemicals for which standards are rolled back and compare then to the chemicals for which DEP proposed stricter standards, so I assume the net effect is negative. This will take detailed review of the proposal.

III) Unknown number of former cleanup plans must be re-opened and strengthened

In addition, to their credit, DEP claims to lower (i.e. make more stringent) some current cleanup standards by more than an “order of magnitude” (10X). Under current toxic site cleanup law, this kind of “order of magnitude” change triggers reconsideration of the currently approved cleanup plans that were based on the prior weaker standard. Those cleanup plans are presumptively no longer protective of human health and the environment because current science means that they were based on a standard at least 10 TIMES too lax.

But the DEP summary does not list the number, name and/or location of sites where the current cleanup plans must be re-opened due to the order of magnitude changes. So, impacted communities will have no way of knowing or holding DEP and polluters accountable for a protective cleanup.

DEP also fails to mention any health risks associated with sites at which the weaker standards were used. DEP merely mentions a “fiscal impact” statement.

IV) Indoor air – vapor intrusion standards weakened

The proposal also would weaken controversial “vapor intrusion” standards, which were weakened by the Christie DEP and already are not protective.

To their credit, DEP finally admitted what we long have argued: that their long reliance on vapor intrusion “screening levels” are not enforceable regulatory standards:

  • Addition of indoor air remediation standards for the vapor intrusion pathway, codified to establish a basis for enforceability as promulgated standards, instead of screening levels, which are not legally enforceable;

So for all these years, DEP has been implementing a totally voluntary vapor intrusion program!

V) Ecological standards & cleanup priorities ignored

Amazingly, DEP twice admitted that screening levels are not enforceable. Yet, incredibly, they continue to rely on unenforceable “ecological screening criteria”.

In addition, the proposal ignores the need to promulgate enforceable standards for the ecological impacts, for natural resource damages, for the “remedial priority system”  (RPS). RPS are the trigger to DEP assumption of oversight & control over high risk sites.

Does anyone remember this promise on RPS? On October 26, 2006, DEP Commissioner Lisa Jackson kicked off the legislative reform (cum privatization) hearings with this testimony:

The DEP is taking steps internally to help prevent residents of the State of New Jersey from exposure to contamination from regulated sites. The most important thing we are doing is developing a new ranking system to prioritize sites so that we focus our resources on the worst cases; those that present the greatest risks to public health and the environment. 

VI) Climate Change Ignored

Finally, following a longtime pattern of neglect, the proposal ignored energy and climate impacts associated with the discharge of toxic chemicals and the cleanup of toxic sites. Climate impacts include toxic sites that are inundated by flood waters, storm surge, and rising sea levels. Climate impacts include sites that are related to alternative energy (wind and solar). Climate impacts include energy consumption and GHG emissions caused by cleanup operations. Polluters must be held responsible for these impacts.

Here is a link to the proposal, which appears in today’s (April 6, 2020) NJ Register.

Now is not the time to be proposing any policy or regulatory changes, obviously because it is not possible for the public to effectively participate in reviewing or opposing them.

VII) Public shut out due to COVID public health emergency

There should be a moratorium of on all DEP permitting and regulatory actions until the COVID crisis is over.

WTF is DEP Commissioner McCabe doing? Check this out – “IF” the DEP holds a public hearing:

The Department anticipates holding a public hearing on the proposal. The date and time of the hearing will depend on circumstances surrounding the COVID-19 public health emergency. If the Department holds a hearing, the public comment period will be extended until after the hearing.

Further information on a public hearing, if one is held, will be posted on the

Department’s website at www.nj.gov/dep/rules/notices.html at least 15 days prior to the dateof the hearing.

Hello! Pubic hearings on major rules – which were exempted from the rule making calendar and therefore blindsided the public – are mandatory.

[Update #1 – The DEP admits that, due to a loophole in cleanup law regarding “natural background”, that the actual soil standard for arsenic is almost 40 TIMES higher than what it should be if it were a health based standard:

The Department established a Statewide soil standard for arsenic of 19 mg/kg because the health-based criterion (0.5 mg/kg) was typically lower than the naturally occurring concentrations. (p. 54)

Obviously, the “natural background” provision of cleanup law contradicts the health based standard in cleanup law. The DEP should not have interpreted the law as they did. Or they should have gone back to the legislature and requested an amendment to fix the conflict.

So, when the rules were updated, did DEP try to narrow or revise this conflict?

No, they made it even WORSE by proposing another loophole:

While the Department is proposing a Statewide soil remediation standard for arsenic, the Department recognizes that there is a wide variation in background concentrations of arsenic that exists across the State. Therefore, in those instances where the person responsible for conducting the remediation believes that the naturally occurring level of arsenic at a site is greater than 19 mg/kg, the person responsible for conducting the remediation can conduct a site-specific background determination as part of the remediation.  (p. 55)

Note that DEP failed to require that, in locations where the natural background concentration is LOWER that the 19 mg/kg statewide standard, that the stricter standard be use.

Instead, DEP only provided relief from the 19 mg/kg standard where local conditions were HIGHER than the statewide standard.

That is total bullshit with no science or public health or even legal justification.

[Update #2 – DEP is proposing, under the new “alternative remedial standards” loophole, to allow lax cleanup and more toxic pollution to be left in the most environmentally sensitive lands!

In fact, the proposal uses the word “ecological” just once – amazingly to weaken protections for ecologically sensitive lands – here is just one the places where weaker “alternative cleanup standards” can be applied: (see p. 170)

Infrequent access areas, such as ecological preservation and conservation areas.

Passive recreational land use, such as land and trails used for walking, cycling, and hunting;

DEP justifies this outrage because these lands have lower exposure potential, i.e. less people.

Total bullshit.

[Update #3 – I just submitted this comment to DEP demanding that the proposal be withdrawn. I urge readers to do the same:

Dear DEP:

As you know, Gov. Murphy has declared a statewide public health emergency due to the COVID-19 pandemic. As you also know, the NJ Administrative Procedures Act requires that a public hearing be held on a major regulatory policy proposal.

It is totally inappropriate and unlawful for DEP to propose a major regulator change during such a declared emergency, which the DEP itself admits makes it impossible for the public to participate, as required by the NJ Administrative Procedures Act.

The DEP admits this by failure to include a public hearing (“if” a public hearing is held).

This proposal was not subject to the calendar requirements of the NJ APA. That compounds the need for a public hearing on the proposal, as the public was blindsided.

Given the declared emergency, the APA calendar issue, and the lack of a public hearing, the proposal must be withdrawn immediately via public notice in the NJ Register.

I reserve my rights to submit additional comments on the proposal.

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