Fenimore Landfill Litigation Shines Light On NJ’s Waste Laundering Schemes

From Dirty Dirt to Asbestos, Lax DEP Oversight Allows Waste Laundering

“When will they ever learn?”

“This stuff happens again and again and again, and nobody is connecting the underlying dots,” Wolfe said. “Are there laws in place to do this, and who is responsible for enforcing them? The answer is there are laws in place, but the government is completely asleep at the wheel. And the towns are left holding the bag.” ~~~ “More tests done on closed Teaneck Park”, Bergen Record, Feb 8. 2012

Litigation in the Fenimore Landfill case has opened another of NJ’s Pandora’s boxes: the practice of laundering various large volume and often hazardous waste streams in order to avoid costly environmentally sound disposal. (see:

• Jail Time for Dirty Dirt – Who’s Next?
• “Dirty Dirt” Is Dangerous – and Ignored
• Recapping a Fiasco, Bergen Record Op-Ed, May 25, 2008

These large volume waste streams range from construction and demolition debris, to industrial slags, sludges,  &  residuals, and asbestos, to toxic laced soils from contaminated site cleanups (AKA “dirty dirt”). These waste streams frequently are laced with all sorts of toxic chemicals and heavy metals, like mercury, cadmium, and lead.

Environmentally sound disposal of these hazardous materials can be very expensive, frequently requiring long haul bulk transportation to out of state disposal facilities.

The generators and haulers of these waste streams have huge economic incentives to avoid those costly disposal requirements.

Over the last 20 years or so, as disposal costs have skyrocketed, the generators of these various waste streams have lobbied regulators for various less costly “beneficial reuse” or “recycling” management alternatives. Veery few people are aware that US EPA and DEP allow industrial toxic waste residuals to be reused in many products, ranging from concrete, to compost, to cosmetics.

Under those slogans, DEP and EPA regulators have created all sorts of dangerous regulatory loopholes and backed off vigorous “cradle to grave” monitoring and enforcement oversight of these waste streams.

Numerous examples of abuse occur, e.g. where contaminated soil or construction debris has been used as “clean fill” in public parks or housing developments across the state of NJ, forcing towns to have to pay for costly excavation and cleanup.

Which brings us to the Fenimore landfill case, where litigation has exposed a series of loopholes created by DEP regulators:

Property owner Strategic Environmental Partners (SEP), petitioned the State Appellate Division on Wednesday, April 30, to permit soil samples at the site, where 375,000 cubic yards of construction and demolition material was dumped.

“We have asked the DEP to test the Hurricane Sandy debris brought to the landfill but the Department of Environmental Protection (DEP) has denied our request. The DEP stopped the Township of Roxbury from testing the material,” SEP attorney Matthew Fredericks said in a statement. …

“The protocol for testing issued by the DEP did not require SEP to test materials coming from DEP-licensed facilities,” Fredericks said.

“SEP reasonably relied upon the DEP facilities to send only approved, permitted materials. Now we want to see what was sent to the landfill by the DEP Class B recycling centers but the DEP won’t permit the testing.

Fredericks also maintains that the material arriving at the Fenimore site should have already been “screened” by the DEP as being acceptable to be dumped there.

“SEP was not required to test materials coming from DEP-licensed Class B facilities, except for sulfur content, because the material should have already been tested and separated by and at the Class B facility to ensure that the material contained no contaminants,” Fredericks wrote.

“In this way, the Class B recycling center acts as a “gatekeeper” to prevent contaminants from reaching brownfields and landfill capping projects like this one,” Fredericks wrote.

As a result of not being required to, Fredericks said that SEP never tested the materials being dumped on the site.

Asbestos?

Fredericks wrote that “it is possible that fill material transferred from the permitted Class B recycling facilities contained materials and contaminants for which SEP was not required to test, but which are otherwise not permitted under SEP’s approvals.”

In July of last year, Fredericks wrote, a test performed by the state revealed the presence of asbestos-containing material.

“Although SEP was not required by the approved closure plan to test for asbestos, SEP nevertheless received asbestos from a DEP-permitted Class B recycling center, which is required to source-separate materials in order to prevent the transfer of asbestos containing materials,” Fredericks wrote.

This scenarios exposes a series of major gaps and loopholes and lax regulatory oversight that DEP has known about for many years, yet DEP has failed to close those loopholes and beef up monitoring and enforcement.

Stories like this are like groundhog day.

As I wrote, almost 8 years ago, I testified to the Legislature about several of these regulatory problems:

It’s a complex story, so of course few depleted main stream outlets or reporters will spend the mental energy and time investigating it.

Yet, highly visible problems and costly controversies regularly erupt from the resulting contamination. The stories and problems caused by lax oversight are legion and statewide: fromEncap, to toxic soil from a Ford Edison plant cleanup used at 19 residential construction sites in central NJ, to pesticide contaminated soils at schools and School Construction Corp. sites, and to the importation of contaminated soil that cost taxpayers $25 million at Trenton’s Martin Luther King School construction fiasco.

As I testified to the Legislature way back in June 2006, risks from dirty dirt included lax oversight of the cleanup process (e.g. contaminated soils are laundered and commingled and sold as clean fill). Reforms I suggested, included::