Murphy DEP Proposes To Deregulate Contaminated Soil And Allow Disposal Under Parking Lots And Roads
- “Pave And Wave” On Steroids
- “Dirty Deeds Done Dirt Cheap”
It’s bad enough that it took the Murphy DEP over 5 years to propose new regulations to implement the “Dirty Dirt” law, passed back in 2019 (the DEP proposal is now open for public comment).
That 2019 Dirty Dirt law was enacted in response to a series of illegal dumping schemes of highly contaminated toxic soils, dubbed “dirty dirt” by my good friend and former colleague Jeff Tittel. Dirty Dirt is contaminated soil excavated from toxic waste sites, or soil that is blended with hazardous industrial wastes and fobbed off as clean fill to avoid high disposal costs.
In one of the most notorious cases, contaminated soil was used as “clean fill” during construction of the Martin Luther King, Jr. school in Trenton.
That fiasco forced demolition of the partially built school, millions of dollars in demolition and cleanup costs, and escalating construction costs:
Construction on the school was suspended in May 2005, after officials discovered that the contractor, Turner Construction, had used dirt contaminated petroleum products as fill under the school’s foundation. To date, state records show, more than $17 million has been spent on the project. (NJ.Com)
The situation got so bad that 10 years later, in 2017 the State Commission On Investigation (SCI) issued a scathing Report that documented lax DEP regulations, inadequate oversight, and little enforcement. The SCI Report exposed corruption and a broken DEP program, but demanded limited reforms:
So, after decades of illegal disposal of “dirty dirt” and poisoning of land and water across the State, the Legislature finally enacted limited reforms in 2019 to require registration and criminal background checks for companies that manage contaminated soils.
To give you a sense of what caused decades of delay in responding to a gross Statewide pattern of illegal dirty dirt disposal, check out recent comments by the NJ Senate President (which prompted this scathing Asbury Park Press editorial:”As the SCI scandal swirls, Scutari says NJ needs fewer watchdogs. Is he serious?”
“I think what we have is a lot of watchdogs, a lot of them. We have ELEC, SCI, we have comptroller, the Attorney General’s Office, we have county prosecutors,” he said. “One of these days we’re going to have to look at consolidation of those efforts.”
Really, Mr. Senate President?
So, that is the context and history. I’m reminded of the AC/DC song “Dirty Deeds Done Dirt Cheap”.
In just now reading the DEP Dirty Dirt proposal, before I got to page 20, I was shocked to find that the Murphy DEP is actually proposing to deregulate dirty dirt and allow it to be disposed of under roads and parking lots as clean fill.
In what can only be described as an Orwellian rationale, the DEP proposed to deregulate dirty dirt in limited situations, assuming that a cap (parking lot or road) would protect the environment. DEP described the new rules as:
a new category of approval, for which no further approval or authorization is required
What kind of DEP “approval” requires “no further approval or authorization”? Pave and wave! One and done!
In doing this, DEP took a terrible policy from the toxic site cleanup program – “caps” or “engineering controls” that are better known as “Pave and Wave” – and used it to deregulate toxic dirty dirt. Here’s just one of hundreds of abuses of that (NJ Spotlight)
Critics claim the settlement lets Exxon “pave and wave” — basically cap the contamination and leave — instead of restoring the site back to life.
The DEP proposal on dirty dirt disposal under roads and parking lots invites abuse.
It is extremely short sided and bad public policy and has no basis in science.
Toxic chemicals under the cap will eventually migrate to nearby surface and/or ground water. That practice will lead to scores more contaminated sites and other abuses at some point in the future.
(and the public and DEP will never know about it, because once the toxic soil is buried under the “cap”, there is “no further approval or authorization” required, which include monitoring and inspections and reporting.)
I fired off this letter to the Senate Environment Committee demanding legislative oversight:
Dear Chairman Smith –
As you know, I’ve long been a critic of current NJ remedial laws and DEP regulations that allow “caps” over contaminated soils, as non-permanent remedies.
Similarly, I’ve long been involved in exposing lax DEP regulatory oversight of “Dirty Dirt” and advocating for stricter regulation.
Accordingly, I feel compelled to bring an important DEP regulatory proposal to your attention, as this proposal would effectively dramatically expand the number of “caps” and contaminated soil sites.
Over 5 years after passage of the law, the DEP proposed rules would implement the 2019 “Dirty Dirt” legislation, which was based on a 2017 Report by the State Commission On Investigation (SCI).
Incredibly, in that rule proposal the DEP has managed to combine features of current lax remedial cap regulations with new loopholes in “Dirty Dirt” regulations.
DEP describes this deregulatory move as a “new category of approval, for which no further approval or authorization is required.”
I call that deregulation.
Specifically, buried in the DEP’s “Dirty Dirt” rule proposal, which is currently open for public comment, the DEP proposed to deregulate the disposal of contaminated soil under “caps”: (Page 18 – 19):
https://dep.nj.gov/wp-content/uploads/rules/proposals/proposal-20250121a.pdf
“Proposed new N.J.A.C. 7:26-1.7(g)2vi is a new category of approval, for which no further approval or authorization is required. Falling within this new category is contaminated soil and/or fill material that is being used as a subbase for roadway construction or a parking lot if the contaminated soil and fill materials meet the criteria established in the proposed rule. The Department has determined that if contaminated soil and/or fill materials are used as provided in the proposed rule, they are, in effect, capped, and have little likelihood of harming public health, safety, or the environment.”
It is completely unacceptable to allow and deregulate the disposal of contaminated soils under caps in roadway construction and parking lots.
What was DEP thinking?
The SCI Report documented the need for STRICTER regulation of contaminated soils, not deregulation and disposal under parking lots and roads.
I urge you to contact DEP and oppose this irresponsible move.
Bill Wolfe