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Skids Greased for Rapid Passage of Further Privatization Of NJ’s Toxic Cleanup Laws

Literally no public debate or involvement in statewide cleanup program

DEP & Legislative Oversight Have Devolved To Gibberish And Sleaze

“Even the best program, after 10 years, may need some tweaks,’’ [Senate sponsor and Chairman] Smith said. ~~~ NJ Spotlight

Things are moving remarkably quickly. It is hard to believe, but proposed legislation about to be passed actually goes beyond the reality I described in this post 8 years ago:

• Mercenaries Now Fully In Charge of Toxic Site Cleanup in New Jersey

Since my initial set up post on the current proposed legislation to further weaken NJ’s privatized site cleanup program, several developments have occurred:

1) I’ve listened to the Senate Committee hearing testimony (including the DEP’s);

2) the Assembly Committee released its version;

3) the Senate Committee scheduled a June 17 vote to release the bill, and

4) NJ Spotlight finally wrote a misleading story today about the issue (after their shameful set up propaganda piece on the day of the Senate hearing by Langan Engineering,  one of NJ’s worst “pay to play” engineering firms.

The Star Ledger editorial Board (on 1/2/11) called Langan’s practices “sleazy”:

Langan Engineering & Environmental gave $25,000. It received $2 million from state agencies last year, and a senior associate of the firm sits on the state’s Site Remediation Professional Licensing Board, which oversees cleanups of contaminated sites. … 

… a sleazy practice that puts both parties within winking distance of a bribe, and that it engenders widespread mistrust.-

The Langan “senior associate of the firm” referenced but not named in the SL editorial is George Berkowitz. He is a former DEP Assistant Commissioner who managed DEP’s cleanup program (revolving door) and was heavily involved shaping the legislation that privatized it. Langan has LSRP employees, is involved in and earns significant profits from many toxic site cleanups, and has an LSRP Board member as a manager at the firm  and therefore huge conflicts of interest. Langan had 9 professional employees named to the DEP Stakeholder group that literally wrote the DEP cleanup regulations. None of these key facts were even mentioned as caveats in the NJ Spotlight propaganda piece or subsequent coverage.

So, if that isn’t enough to turn your stomach and open your eyes, let me try to clarify a few key issues.

1. How many sites have been completely cleaned up?

NJ Spotlight uncritically reported DEP’s totally misleading claim:

In the last decade, the Site Remediation Reform Act, in bureaucratic jargon, has reduced the number of sites awaiting cleanup from more than 20,000 to about 13,500, according to Mark Pedersen, an assistant commissioner of the state Department of Environmental Protection.

DEP’s testimony was gibberish.

DEP’s data is based on an absurd and self interested bureaucratic classification of sites that has no scientific basis.

DEP data and classification of sites (“complex”???) are designed to intentionally mislead the public, exaggerate the number of cleanups, and downplay the risks to public health and the environment.

First, DEP has no credible scientific basis to make any statement about the performance of the cleanup program because DEP has failed to implement or release to the public the “Remedial Priority System” (RPS) mandated by the Legislature over a decade ago. Without the RPS, DEP is literally flying blind and making shit up.

The legislature mandated that DEP adopt and implement the “Remedial Priority System” (RPS), which not only provides a valid, structured, risk based scientific basis for classifying and managing toxic sites, it also includes triggers for direct DEP oversight of high risk sites.

The Legislature also mandated that DEP publicly disclose a list of risk based sites in NJ.

The RPS originally was required by provisions of the Spill Act enacted over 30 years ago. More recently, the RPS agains was mandated by the 2009 Site Remediation Reform Act (“SRRA”, phonetically as in SURRENDER).

The legislature mandated that the RPS be adopted and implemented in DEP’s cleanup program by May, 7, 2010 (one year after enactment). DEP has flouted that legislative mandate for over 9 years.

Without a RPS, DEP is flying blind and has no scientific or factual basis to make any credible public statement.

Second, the DEP site classification scheme (“complex sites”???) and program “data” greatly exaggerate the number of cleanups by counting partial cleanups (for soil, not groundwater), and allows cleanups to be counted for a portion of the entire site. The so called “cleanup” data are not site wide for soil and groundwater and natural resources.

The proposed legislation would make this problem worse by re-defining “remediation” to include partial cleanup or a cleanup for a portion of a site. People who purchase land or finance and/or redevelop contaminated land can easily be misled by this chicanery in how DEP classifies site cleanups. AND recall that the Kiddie Kollege tragedy was partially caused by confusion about the actual contamination of the site.

The real question reporters, legislators and the public need to ask DEP is this:

How many sites have undergone site wide permanent remedies, for soil and groundwater and vapor intrusion- including restoration of or compensation for damaged natural resources – without engineering and institutional controls?

That is the gold standard and it is a vanishingly small number of sites.

Ironically, the NJ site remediation program generates an enormous amount of real data on toxic contamination of soil, groundwater and biota at thousands of sites across the state. This data is ignored, very difficult for the public to access, and distorted by DEP’s gibberish.

DEP is just shuffling numbers and misleading legislators and the public. This is unprofessional, disgraceful and intolerable.

2. Are public health and the environment being protected?

In contrast with every other NJ environmental regulatory program – clean air, clean water, land use, etc – DEP does not even track and publicly report on trends in soil, groundwater, ecological, or public health contamination and impacts of thousands of toxic sites across the state.

That is a remarkable abdication and the privatization of the program made the problem much worse.

Worse, current cleanup laws and DEP soil and groundwater standards and cleanup regulations have numerous huge loopholes that let polluters off the hook for costly and protective site cleanups:

• highly contaminated toxic soils can be “capped” (engineering control) and left in place
• groundwater pollution can be left in place under a “Classification Exemption Area” (CEA – “institutional control”) which waives the groundwater standards;
• there are multiple “exit ramps” to avoid public health protective remediation of risks from  “vapor intrusion” into occupied buildings
• there are no ecological based cleanup standards (merely screening levels under the technical control and discretion of private consultants), therefore natural resources damaged by toxic pollution are often not restored or fully compensated for.
• there is no public involvement in cleanup decisions, which are made by polluters and therefore almost always sacrifice protections of public health and the environment to reduce the corporate polluters’ cleanup costs and liability.

Here’s are just some of the real questions legislators, reporters and the public need to ask DEP to provide data for include:

• what are the known health effects of exposure to toxic contamination and are these exposures and health effects tracked by DEP and/or DOH?
• what are the levels and trends of toxic chemicals found in soil, groundwater, wildlife, and people?
• what are the levels and trends of toxic contaminants in air, water, sediments, food and drinking water?
• what is the current science on cumulative and synergistic effects of multiple exposures to multiple toxic pollutants?
• How – precisely, with actual field data – is the DEP toxic site cleanup program influencing all these trends?

Finally, I’ll close this post with a final key point, which NJ Spotlight buried in the final paragraph (emphasis mine)

Environmentalists believe the lack of a ranking system leads the market to determine what sites are cleaned up — the ones that can be profitably remediated the quickest — because developers do not want to get involved in complex and expensive cleanup sites.

Yes, the Legislature has mandated that the “market” is in control of our public and environmental health from the risks of toxic pollution.

The toxic site cleanup program has become a real estate redevelopment program.

And even DEP mangers have prostituted their professional reputations to the real estate market. For the dirty details, see:

• According to DEP: Real Estate Values Trump Public Right to Know About Risks From Nearby Toxic Sites

Ban On DEP Oversight Would Put Corporate Polluters In Control of 81 Of NJ’s Worst Sites

Remarkably, this stealth rollback received no explanation, justification, or testimony

It is not in the public interest, would undermine community involvement in cleanups, increase delays in cleanups, and would increase and prolong risks to human health and the environment.

This post is a followup to my prior post on Senate bill S3682.

Before reading, as a reality check, you might want to hit this link and briefly look at this EPA Region 2 list of 81 NJ RCRA Corrective Action Program industrial toxic sites. Look at those corporate polluters!

Then consider that Chairman Smith’s bill would prohibit DEP from assuming oversight at these sites – regardless of whether they are violating or flouting NJ statutory cleanup deadlines or NJ DEP cleanup regulations and/or cleanup standards – thereby putting corporate polluters in perpetual unilateral control of the cleanups! (subject only to the rubber stamp of the pro-industry Trump EPA and industry friendly federal RCRA regulations)

(Here is one illustration of the stakes of this abdication: DEP and US EPA share joint oversight of a RCRA Corrective Action cleanup at one of NJ’s worse toxic sites, the Dupont Pompton Lakes site. While Dupont has delayed cleanup and restoration of natural resources for over 35 years, in theory, DEP could invoke the NJ Spill Act and assume direct oversight and complete control of the cleanup, and send the cleanup bill to Dupont. In theory, this NJ DEP power puts pressure on Dupont and US EPA. Without it, Dupont can act with impunity as there is no federal EPA enforcement stick. If you hit the site specific links in the left hand column on the link I provided, here’s how EPA reports the status of that cleanup:

Human Exposure under Control:

No status has been recorded. ~~~

Thirty five years later, and people are still exposed to Dupont’s toxics. ~~~ end Note]

OK, now that I have your attention, read my letter to Chairman Smith and contact him and your legislators to stop this corporate sellout.

[Note – the Assembly version, A5293 was released by Committee today. Senate Chairman Smith promised to release the bill from his Committee next Monday, June 17. This bill is moving incredibly quickly – the skids are greased. Totally corrupt. Totally.]

Dear Chairman Smith –

This brief note follows up and clarifies one point in my prior June 4, 2019 email regarding the impact of the bill on cleanups at sites with federal involvement.

Since that initial review, I listened to the testimony before your Committee on the bill. I will be submitting additional comments, but today will focus only on Section 26. Curiously, there was no testimony or publicly presented summary or policy justification provided for Section 26.

Section 26 of your bill, S3682, would amend current law regarding the criteria and conditions that trigger and under which DEP is required to (“shall”) assume direct oversight.

The amendments in your bill would prohibit DEP (“shall not undertake direct oversight”) from undertaking direct oversight, among other things, when: (emphasis mine)

The folks on Sparta Mountain just sent me the following June 4, 2019 email from DEP, which sought friendly comments on expansion of next year’s Highlands logging, but made no mention of concerns with current gross abuses:

From: Petzinger, Sharon <Sharon.Petzinger@dep.nj.gov>
Date: Tue, Jun 4, 2019 at 10:45 AM
Subject: Year 2 implementation at Sparta Mountain – draft maps
To: Emile < emile@njconservation.org>, Julia Somers < julia@njhighlandscoalition.org>
Cc: Don Donnelly < don.donnelly@njaudubon.org>, Golden, David <David.Golden@dep.nj.gov>, Heilferty, John < John.Heilferty@dep.nj.gov>

Emile and Julia,

We are seeking your feedback on the placement of the Year 2 activities on Sparta Mountain WMA.

Attached are draft maps broadly outlining where we would likely place a 10-acre modified seed tree (MST) cut, which would retain an average basal area ranging between 20 and 30 sq ft per acre, and a 75-acre single tree selection (STS), which would retain an average basal area ranging between 60 and 70 sq ft per acre. Note that the outline is much larger than the actual footprint of activity, allowing us some wiggle room on the actual placement.

We plan on finalizing everything by August 2 so we may begin implementation in November, so please respond before August 2, 2019. If you want to meet with us on site, Don and I are available July 10-12 and July 29-31.

Thank you in advance for your time and consideration,

Sharon Petzinger

Endangered and Nongame Species Program NJ Fish and Wildlife

First of all, this is NOT a public comment process.

The public is NOT given any opportunity to review and comment on how DEP is mismanaging public lands that taxpayers paid for.

Sending an email to request comments from friendly NJ Audubon, Julia Sommers (NJ Highlands Coalition) and Emile DeVito (NJ Conservation Foundation) is NOT a formal public notice and public comment opportunity.

Second, DEP offering to conduct a site visit with 2 friends ignores all the other people who have raised concerns and actually observed and criticized DEP approved logging on site, and made these criticisms:

1) access road was significantly widened by logger on both sides (as much as 3 to 4 feet) in some places…on both sides

2) there is major soil disturbances so much so there is huge ruts and now oil /hydraulic fluid has been found on the recent cut.

3) logger has yet to pay fine for 6 trees that were cut that weren’t supposed to

4) vernal pools were compromised…that is 300 foot buffer were not protected.

Third, DEP is using the metric of “basal tree area” as a technocratic exercise designed to mask logging.

To put DEP’s basal area metrics in context, here are US Forest Service forest metrics of old growth forest:

That is more than 5 times more dense forest than DEP logging plans.

How does DEP continue to get away with this manipulative bullshit, as they log public forests in the Highlands?

Finally, the so called “modified seed tree (MST) cut” and “single tree selection (STS)” are euphemism for clear cuts. Compare to USFS old growth metric cited above.

We again urge legislative oversight and an audit of DEP’s public forest forestry practices and policy.

What explains all these contradictions? 

How do you feel about a manipulative and fake media campaign to ignore real climate risks, to undermine real activists, to benefit elite interests & to give Gov. Murphy a pass?

NJ Spotlight published an Op-Ed today on the Penn East pipeline, ostensibly written by Brandon McCoy, President of NJ Policy Perspective:

• PENNEAST PIPELINE DOESN’T GO WITH A CLEAN-ENERGY FUTURE

Aside from Mr. McCoy’s lack of expertise, experience or prior involvement in climate or energy policy   –  while NJ Spotlight fails to publish Op-Ed’s by many groups and authors who have these qualifications or other fossil infrastructure projects – in reading Mr. McCoy’s Op-Ed, ask yourself one basic question:

Why is NJ Policy Perspective, a State level group, led by a President who touts his his personal leadership

“of the organization’s efforts in shaping policy debates to advance economic justice for the many, not a chosen few”

 and with a statewide organizational mission

“to advance economic justice and prosperity for all New Jerseyans through evidence-based, independent research, analysis and advocacy” (emphases added)

writing an Op-Ed about the Penn East pipeline, a project and narrow single issue (not any POLICY) that most directly impacts the backyards of and is opposed by the “CHOSEN FEW” of Hunterdon County? (do I need to publish the demographics of Hunterdon County? – or the Board , membership and financial contributors of the NJ Conservation Foundation?)

Why wouldn’t such an advocate of “policy” and “economic justice“, leading an organization seeking to “advance economic justice and prosperity for all New Jerseyans”, actually mention any of that in an Op-Ed?

Why wouldn’t that President of that Organization, tackling climate and energy issues being addressed at the State level by BPU and DEP, instead focus on real statewide policy issues that impact the 99% of New Jerseyans, other than the “chosen few” wealthy property owners in Hunterdon County impacted by the Penn East pipeline?

There is nothing in Mr. McCoy’s Op-Ed of statewide significance.

There is nothing about climate change or energy policy.

There is nothing about the disproportionate impacts of climate chaos on distressed urban communities or economic and environmental justice for those communities.

There is nothing about Gov. Murphy’s rhetorical commitments to battle climate change and promote environmental justice and the need to hold the Governor accountable to those commitments.

There is nothing about the pending Murphy BPU Energy Master Plan, the driver of Statewide energy policy and whether it will enforce and finance the dire warnings of climate scientists and make deep and accelerated reductions of greenhouse gas emissions.

There is nothing about DEP’s failed efforts to implement the Global Warming Response Act or flaws in the GWRA or RGGI.

And why would opposition to a specific pipeline not criticize the fact that DEP regulations do NOT consider climate change in fossil infrastructure permitting? (Or that the Christie DEP rolled back these protections?)

There is nothing about all the other pending fossil infrastructure projects and the Coalition of numerous state and local groups that are urging Gov. Murphy to impose a moratorium on new fossil infrastructure.

Virtually nothing that meets the stated mission of NJ Policy Perspective and the leadership commitments of its President, Mr. McCoy.

On top of all those failures, while Mr. McCoy does mention New York State – yet amazingly, he fails to mention the most obvious and significant fact that NY Gov. Cuomo previously has killed pipelines, most recently the proposed pipeline under Raritan Bay currently pending an imminent DEP permit decision!!!

Instead, we get the same recycled arguments and talking points of Tom Gilbert and Rethink Energy NJ.

What explains all these contradictions?

Could it be that Jon Shure – longtime  partisan NJ Democratic political operative and corporate democratic policy wonk with relationships with Gov. Murphy –  the Founder and current member of the Board of Trustees of NJ Policy Perspective, and currently employed by Taft Communications, had something to do with writing and marketing this Op-Ed?

[Jon Shure]He was communications director through Gov. Jim Florio’s term in office. Jon was founding president of New Jersey Policy Perspective, building it into an influential state research/advocacy organization, and was director of state communications at the Center on Budget and Policy Priorities in Washington, D.C.

Back in February, we exposed the role of Taft Communications in an incredibly timed prior NJ Spotlight Op-Ed by Tom Gilbert, which we called out as an effort to sabotage the fossil moratorium campaign, see:

• Rethink Energy NJ Is Sabotaging The Fossil Moratorium Campaign

Rethink NJ pays for a consulting firm for communication services, including drafting Op-Eds and working behind the scenes to get them published (it is not easy to get an Op-Ed published, and as noted above, Tom Gilbert meets NONE of the traditional qualifying tests for an Op-Ed opportunity).

That consulting firm is Taft Communications.

If you hit the link on “Client List”, you can see Rethink Energy NJ listed as a client.

But if you also look slightly above Rethink, you will see that PSEG is also a Taft client.

Mr. McCoy – and Mr. Shure – are engaged in the same game that Mr. Gilbert played back in February.

They won’t put any pressure on or make any demands of their political friend, Gov. Murphy.

The won’t join is solidarity with other NJ Communities and activists battling fossil infrastructure projects.

They work hard to marginalize the radicals, co-opt the local activist, and take credit for their work.

They are willing to sellout out their grandmothers and lie to the public (by commission or omission).

All they care about is the wealthy elite who fund them and their own careers and salaries.

I call bullshit on all that and shame on them.

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