Gov. Christie Killed Ecological Cleanup Standards At Heart Of Exxon Deal

Ecological Standards Are Far Stricter Than Human Health Standards

[Update below provides example]

Back in 2010, Governor Christie quietly signed legislation – portrayed at the time as eliminating defunct government advisory boards – but that also eliminated DEP’s legislative authority to adopt ecologically based cleanup standards in NJ’s toxic site cleanup program (scroll to page 3 to see the new section 35.a language, which deleted the ecological standards and link to recommendations of the Environmental Advisory Task Force – see below for the specific original language that was deleted by this law. If you want the actual fingerprints, you have to go back and read the bill, A2851 [1R] the Gov. signed – look who sponsored it! Mr. Red Tape himself, Burzichelli, (D-Oil))

• see this for our contemporaneous analysis of Christie’s gutting of ecological standards
  
• also see our 2009 letter to Gov. Corzine urging him to adopt ecological standards for cleanups.

That one stealth move by Gov. Christie reduced the cleanup liability of polluters at hundreds of sites in NJ by billions of dollars and assured that NJ’s natural resources would not be protected from toxic sites. Here’s how.

Previously, we explained the huge difference between the extent and cost of a site cleanup to meet ecologically based standards for “restoration” of natural resources under DEP’s Natural Resource Damage (NRD) program (i.e. “permanent remedy” excavation of contamination to original conditions), versus the far lower cost of a “remediation” under DEP’s Site Remediation program (i.e. “engineering controls” to merely cap contamination on site).

The Exxon deal shines a very bright light on that distinction, but it also shows how ecologically based cleanups are far stricter, better,  and more costly than cleanups based on protection of human health.

The Exxon economic analysis highlights that critical point (on page 8):

The DEP’s ability to compel ecologically based cleanups has long been a controversial issue in NJ. Polluters have strongly opposed DEP’s efforts to base cleanups on far more costly ecological protections that require far more complete cleanups.

In 1993, the legislature sided with the polluters and passed a law that said that DEP could not adopt ecologically based cleanup standards until an expert Environmental Advisory Task Force (EATF)  met and provided scientific recommendations (see: Section 35 .a. of P.L.1993, c.139 (C.58:10B-12):

The department shall not propose or adopt remediation standards protective of the environment pursuant to this section, except standards for groundwater or surface water, until recommendations are made by the Environment Advisory Task Force created pursuant to section 37 of P.L.1993, c.139. Until the Environment Advisory Task Force issues its recommendations and the department adopts remediation standards protective of the environment as required by this section, the department shall continue to determine the need for and the application of remediation standards protective of the environment on a case-by-case basis in accordance with the guidance and regulations of the United States Environmental Protection Agency pursuant to the “Comprehensive Environmental Response, Compensation and Liability Act of 1980,” 42 U.S.C. s.9601 et seq. and other statutory authorities as applicable.

Members of the EATF were supposed to be appointed by the Governor.

The polluters used their political muscle to block those appointments. As a result, there were no appointments and the EATF never met and never made recommendations to DEP pursuant to Section 35.a.

As a result, the DEP never adopted State ecological standards and therefore could not force polluters to cleanup toxic sites to protect natural resources. There was a defacto moratorium that held ecological standards in limbo for many years.

We confronted this lack of DEP ecological cleanup standard in out battle with Dupont in Pompton Lakes – here’s how Dupont themselves note this lack of DEP standards:

NJDEP has promulgated soil remediation standards for residential and nonresidential exposure. However, no promulgated soil standards are available for ecological receptors.

NJDEP does not have any promulgated sediment criteria for evaluating potential human exposure or for ecological receptors. For ecological receptors, NJDEP’s 1998 sediment guidance is available to evaluate sediment quality within Baseline Ecological Evaluations as part of implementing the Technical Requirements (N.J.A.C. 7:26E). However, in accordance with the sediment guidance (NJDEP, 1998), these values are not cleanup standards.

Lack of ecological standards severely weakens DEP’s hand in negotiating with polluters on cleanups, because – as Dupont clearly notes – the Guidance values are not standards and are thus not legally enforceable.

Then, 17 years later, Gov. Christie used the failure of the EATF to be formed, meet, and make recommendations to DEP as an excuse to kill it as a defunct advisory board.

The law that Christie signed in 2010 abolished the EATF.

And in the law killing the EATF, Christie also stripped the above cited Section 35.a. provisions from NJ’s cleanup laws that give DEP the legal authority to develop ecologically based cleanup standards, thereby prevention any future Governor or DEP Commissioner from strengthening NJ’s cleanup program.

That move permanently  absolved NJ’s corporate polluters from the costly cleanups we are now seeing exposed by the Exxon $8.9 billion deal.

Specifically, a $1.53 billion cost component of the DEP’s Exxon on-site natural resource restoration plan was for excavation and off-site disposal of 9 million tons of contaminated sludge, soils, and sediments to meet ecological protection standards.

DEP could not compel such a costly excavation under DEP’s site remediation program, which lacks ecological cleanup standards.

So, long before Gov. Christie cut the dirty deal with Exxon, he gutted NJ’s cleanup laws to prevent DEP from ever adopting the kind of ecological cleanup standards that would have cost Exxon $1.53 billion at just one site.

[Update – as an illustration of how controversial ecological standard is:

In 2002, DEP Commissioner Campbell attempted an end run around the legal bar in remediation law to cleanup standards. DEP relied on its Clean Water Act authority and proposed ecologically based surface water quality standards known as “wildlife criteria” for toxics PCB, DDT, and mercury.

The polluters waged a strong political campaign opposing that proposal, met secretly with Campbell  – see letter to DEP by the Chemistry Council – which forced DEP to withdraw that proposal.]