DEP Creates “Safety Cushion” for Toxic Polluters

DEP Promoting More Delay in Cleanups, Increased Health Risks, and Higher Cleanup Costs

There could not be a more flagrant or transparent example of DEP protecting polluters at the expense of protecting public health and the environment

The DEP proposed new rules last week to provide a “safety cushion” for those responsible for causing and cleaning up pollution at toxic waste sites.

The proposal would gut major reforms and core safeguards in regulations adopted last December by the Corzine Administration’s privatized “Licensed Site Professional” (LSP) program.

To expedite long delayed cleanups and hold private consultants accountable, the Corzine LSP rules set mandatory timeframes for each step in the cleanup process, and penalties for failing to meet those schedules.

Corzine DEP officials and legislators repeatedly claimed that new mandatory timeframes required under the LSP law would speed up stalled cleanups.

Hundreds of cleanups under lax DEP oversight have suffered years of delays. Delay greatly increases toxic exposure risks by allowing pollutants to migrate further off site and poison drinking water and people’s homes. As a result, delay increases ultimate cleanup costs.

Christie Administration DEP Commisioner Bob Martin supports the Corzine privatized LSP program, and has repeatedly claimed that his primary goal is to speed up DEP approvals.

The proposed new rule flat out contradicts repeated pledges of legislators, DEP officials and Commissioner Martin.

The DEP proposal itself explicitly states that the objective of the proposal is to extend current cleanup schedules.

There could not be a more flagrant or transparent example of DEP protecting polluters at the expense of protecting public health and the environment.

Scores of communities across the state have demanded a “safety cushion” to protect their health (i.e. follow the precautionary principle by conducting complete cleanups, known as “permanent remedies” instead of cheap caps, derided as “pave and wave”, or defended by polluters as “engineering controls”).

But DEP has ignored those demands. Yet DEP shows no shame in seeking a “safety cushion” for polluters.

Here it is, in DEP’s own words from the proposal:

In the [LSP] interim rules, the Department established mandatory timeframes for the following four of the seven remediation milestones enumerated in SRRA, and set those timeframes at one year from a specific trigger date unique to that milestone: (1) submitting an initial receptor evaluation, (2) addressing immediate environmental concerns, (3) addressing the interim remedial measure for remediating free product, and (4) submitting the preliminary assessment and site investigation reports.

Since the adoption of the [LSP] interim rules, the Department has conducted extensive stakeholder outreach. During stakeholder input sessions, commenters uniformly expressed concern that persons responsible for conducting the remediation of sites will inevitably be subject to direct Department oversight because the mandatory timeframes established in the ARRCS rules at N.J.A.C. 7:26C-3.3 are too short. …

Therefore, the Department is proposing to amend the mandatory remediation timeframes established in the ARRCS rules at N.J.A.C. 7:26C-3.3 by extending them for one additional year, and is also proposing to amend the regulatory timeframes set forth in the Technical Requirements in order to afford the person responsible for conducting the remediation a full one-year “safety cushion.”

At the same time, in an extraordinary move, the DEP Enforcement Office waived compliance with existing regulations, before the proposed new rule is even in effect.

Since some of the regulatory time frames in the current rule may run before the new rule can be adopted, the Department will exercise its enforcement discretion and will not take enforcement action against a person for failure to meet a regulatory time frame contained in the current rule if the time frame for that requirement is proposed for amendment, provided that the person responsible for conducting the remediation meets the proposed regulatory time frame. ..

In light of the anticipated change in the vapor intrusion immediate environmental concern definition, when a vapor level exceeds the Indoor Air Screening Level but is below the Rapid Action Level the Department will exercise its enforcement discretion concerning compliance with current vapor immediate environmental concern requirements and time frames, provided the person responsible for conducting remediation complies with the proposed requirements and time frames that pertain to these situations.

This bait and switch can not be allowed to stand.

The Legislature has authority under the NJ Constitution to strike down any regulation found to be “inconsistent with legislative intent”.

The DEP proposal flat out contradicts both legislative intent to expedite cleaups and the provisions of the LSP law, which require mandatory cleanup schedules. Therfore, today we wrote to the sponsors of that law to request that the DEP rule proposal be killed by the legislature as “inconsistent with legislative intent.”. Here is that letter:

Dear Senator Smith and Assemblyman McKeon –

In the October 4, 2010 NJ Register, DEP proposed new rules that would gut the only positive feaure of the recent LSP program, the mandatory timeframes and enforcement penalties.

Regulations imposing those requirements were adopted by DEP in accordance with the LSP statute in December 2009. The October 4 proposal would gut these rules.

DEP also issued an enforcement advisory indicating that they will exercise enforcerment discretion and not enforce the mandatory existing rules adopted in December 2009. DEP has waived enforcement of legally binding regulations prior to and in the absence of adoption of the proposed rules.

We believe that DEP does not have the discretion to use enforcement discretion to waive mandatory requirements. Equally, the proposal makes a mockery of the rule-making process, because it is obvious that the policy decision – designed to provide a “safety cushion” for polluters – has been made.

The proposal will only lead to further cleanup delays, higher cleanup costs, and needless risks to public health and the environment.

As prime sponsors of the LSP law who repeatedly promised that the mandatory cleanup schedules would expedite cleanups, I urge you to hold hearings on this rule proposal.

Your credibility – and that of the Legislature – is on the line.

Should DEP not agree to withdraw this rule proposal, I request that you intervene to block adoption of these rules as inconsistent with legislative intent.

I look forward to your prompt response and favorable consideration.

Please see the below press release, which provides details and links to the DEP documents.

Sincerely, Bill Wolfe, Director NJ PEER

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For Immediate Release: October 13, 2010
Contact: Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337

NEW JERSEY GUTS NEW PRIVATIZED TOXIC CLEAN-UP RULES – “Safety Cushion” Extended to Polluters at Expense of Public Health

Trenton – Before new rules governing privately operated clean-up of toxic sites could be implemented, New Jersey has already substantially relaxed them to provide a “safety cushion” to responsible parties. This removes enforceable timetables that were the main promised benefit from ceding control of clean-ups to corporate consultants, according to Public Employees for Environmental Responsibility (PEER).

On October 4, 2010, the state Department of Environmental Protection (DEP) proposed new rules that weaken new mandatory clean-up timeframes that were adopted just last December. In addition, DEP wants to soften standards for addressing vapor intrusion, a major problem in New Jersey on thousands of toxic sites that have merely been capped rather than thoroughly cleaned.

“This is regulatory bait and switch where public health is what gets ripped off,” stated New Jersey PEER Director Bill Wolfe, pointing out that legislation authorizing privately overseen clean-ups was premised on the promise that they would be much faster than state supervised operations. “DEP caved before they even applied the new rules.”

Besides setting aside the specific deadlines for each phase of the clean-up process and penalties for failing to meet these schedules, DEP is also proposing to:

• Weaken the standard for addressing vapor intrusion from sites that supposedly had been remediated; and
• Abandon requirements that the corporate consultant “complete the delineation of the immediate environmental concern contaminant source” within two years; and
• Relieve consultants from liability for factors that arise after their initial reports, creating an incentive not to discover troublesome facts until late in the process.

According to DEP postings, the rationale for these rollbacks is to provide a “safety cushion” to responsible parties and their contractors due to the fact that “Stakeholders expressed concern” about strict requirements in the original regulations.

“The only stakeholders that DEP consulted were the polluters and their contractors. Blighted communities and homeowners are not complaining that clean-ups may be moving too fast – just the opposite,” added Wolfe, a former DEP analyst. “Why is DEP pulling away the”safety cushion” on vapor intrusion? DEP is now only concerned about toxic fumes seeping into basements when it sends people to the hospital and not when people are being slowly poisoned.”

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Read the DEP Compliance Advisory  

See the DEP proposed relaxation

View the rules adopted in December 2009 that will be relaxed

Look at huge vapor intrusion problems in New jersey

Note how delays have plagued New Jersey toxic site clean-ups

New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability