NJ Legislators Propose To Change State Role In Superfund Site Listing Process

Posted on March 11, 2014 by Bill Wolfe

Unclear If Goal Is To Erect Hurdles to New Superfund Sites or to Provide Public Involvement & Transparency

DEP Still Has Not Adopted “Remedial Priority System”

A bill that would significantly change the process for designating a toxic site on the federal Superfund “National Priorities List” (NPL) list was approved by the Assembly Environment Committee yesterday, despite no explanation of the intent of the bill by the sponsor (Committee Chairwoman Grace Spencer) and our testimony that raised serious concerns regarding the need for amendments (listen to testimony).

Although the bill purports to provide transparency and public involvement in the critically important Superfund listing decision, curiously, the bill was supported by the Chemical industry and business interests. That’s a strong indication that the intent of the bill is to create hurdles to any future listing of any additional Superfund sites.

There are provisions of the bill that lend credence to that industry attack (see point #5 below), where the bill allows DEP to consider alleged delays and impacts on local communities in deciding whether to recommend Superfund listing to EPA.

The bill (A2340- Spencer, Greenwald), would require that DEP prepare a technical report and hold a public hearing before recommending to EPA that a NJ site be considered by EPA for inclusion on the federal Superfund NPL.

The bill opens a Pandora’s box of controversial issues regarding exactly how a toxic site gets listed on the federal Superfund NPL: i.e. who makes that decision, on what basis the decision is made, the public’s right to know and role in those decisions, and what are the roles of the federal and state governments.

The most controversial illustration of that Pandora’s box is the ongoing battle in Pompton Lakes to get the Dupont site listed on the NPL and cleaned up under the Superfund program. The issue has strongly polarized the community – with at risk residents who live in the “the plume” urging Superfund cleanup, and Dupont, local officials, and downtown business interest opposing the “stigma” that they believe Superfund would give the community.

In fact, some have already speculated that the bill may be a preemptive strike by Dupont to block Superfund listing.

So, let me take a step back and provide the context, and close with the amendments I recommended:

  • Superfund NPL Listing Process – State Role Grows To Effective Veto Power

Under federal Superfund law, the decision to list a site on the NPL is a federal decision made by US EPA.

It is supposed to be made primarily based on science and risk to human health and the environment. The tool EPA relies on to screen sites based on these factors is a point scoring system known as the “Hazard Ranking Score” (HRS). Sites that score 28.5 or greater on the HRS are eligible for Superfund listing.  Here is EPA’s fact sheet on the three ways that a site can get listed.

What EPA’s fact sheet omits is a discussion of the State role in Superfund listing and what is known as EPA’s State “concurrence policy”.

For political reasons, beginning in the Clinton’s Administration’s “reinventing government” initiative, EPA began to back away from a strong federal role over states and instead pursued a “cooperative federalism” approach, with an intent to establish “partnerships” with States.

In the Superfund program, this led to seeking a State’s “concurrence” with EPA’s science and risk based recommendations to list a site on the Superfund NPL (here is EPA’s model concurrence letter). EPA basically asks the State’s permission before listing a site in that State.

The relationship goes both ways – similarly, a state can request that EPA consider a site for NPL listing. This is the recommendation to EPA that the NJ legislation seeks to make transparent and participatory, in order to hold the state DEP accountable.

Over time, EPA’s political concession to a stronger state role has led to State’s having an effective veto power over Superfund NPL listing decisions.

Worse, all these decisions are made in the dark, absent any formal process or public involvement.

  • PEER Lawsuit to force disclosure of sites that qualify for Superfund based on risk

In order to open this Superfund listing black box, PEER filed a federal Freedom of Information Act (FOIA) request to EPA, seeking a list of sites that had qualified for NPL listing based on HRS scores greater than 28.5.

EPA stonewalled, so we sued them successfully to obtain these documents and found that there were at least 36 sites in NJ that qualified for Superfund listing based on risk, but were not listed – for details, see:

  • TWENTY SEVEN NEW JERSEY SUPERFUND-ELIGIBLE SITES LEFT OFF LIST –EPA Still Reviewing Status of Unknown Number of Garden State Toxic Hotspots

Washington, DC — New Jersey already has the most Superfund sites of any state but could have many more according to U.S. Environmental Protection Agency documents obtained through a lawsuit by Public Employees for Environmental Responsibility (PEER).  More than a score of sites in New Jersey pose risks equal to or greater than Superfund-listed sites, yet these uncontrolled sites were not added to the Superfund National Priority List for clean-up by EPA.

Full Report:

  • EPA DISCLOSES NINE MORE SUPERFUND-ELIGIBLE SITES IN NEW JERSEY – Thirty Five Sites Passed Over for Superfund Relief; One More Site Still Pending

Washington, DC — Days after revealing that it did not act on 27 Superfund-eligible sites in New Jersey, the U.S. Environmental Protection Agency now admits that there are nine more such sites, according to agency records surrendered in a lawsuit brought by Public Employees for Environmental Responsibility (PEER).  EPA is still considering Superfund listing for one site in Essex County but has decided not to list the other eight.

Full Report:

  • Amendments are required to provide safeguards

Given all these serious problems, I testified and recommended the following amendments (with a copy  to EPA Regional Administrator Enck):

Dear Chairwoman Spencer and Assemblyman Greenwald:

Per your request, following up on my testimony today in support of your bill, A2340, below are the proposed amendments I suggested to improve the bill. Each amendment includes a brief rationale and supporting information. Language of the proposed amendments is in italics.:

1. Include vapor intrusion pathway in DEP Report, risk screening, and risk assessment

Amend section 1.a.(1) at line 19, after “human health and the environment”, insert:

“, including the vapor intrusion pathway and potential for vapor migration”

Here is EPA’s Federal Register Notice proposed revision of the Superfund revision to include vapor intrusion (Jan. 31, 2011):

SUMMARY: The Environmental Protection Agency (‘‘EPA’’) is soliciting stakeholder input on whether to include a vapor intrusion component to the Hazard Ranking System (‘‘HRS’’). The HRS is the principal mechanism EPA uses to place sites on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) National Priorities List (NPL).

http://www.epa.gov/superfund/sites/npl/a110131.pdf

2. Provide a public petition process to request that DEP conduct a Preliminary Assessment, SIte Investigation, and Hazard Ranking Score

This recommended amendment is based on existing federal CERCLA and EPA Superfund Guidance, that provides an opportunity for the public to nominate sites for EPA’s NPL consideration. See this link for that EPA Guidance, which can be used to draft this amendment. The EPA Guidance lays out the content requirements and review process for a petition.

http://www.epa.gov/superfund/programs/npl_hrs/papetition_oct02.pdf

Insert new Section 2 in the bill as follows (basically a similar process to a petition for rule making under the Administrative Procedures Act):

“Any person may petition the DEP Commissioner to conduct a preliminary assessment, site investigation, and a Hazard Ranking Score for a suspected contaminated site where there has been a suspected or actual release of a hazardous substance. The petition shall state the factual basis for the suspected release of hazardous substances on the site and provide any evidence to support the suspected release of a hazardous substance.

DEP shall provide notice of receipt of the petition in the NJ Register within 30 days of receipt.

DEP shall review the petition and make a determination on whether to proceed with the requested PA,SI and HRS within 120 or to deny the petition. DEP may not deny the petition if evidence is provided of a known release of hazardous substances at the site. DEP shall notify the petitioner and file a notice of determination and the factual basis for that determination in the NJ Register.

3. Require disclosure of all sites that have HRS scores of 28.5 or greater and are eligible for Superfund NPL listing. 

As I testified, EPA’s decision to list sites on the National Priority List is primarily based on risk to human health and the environment. The EPA methodology for evaluating these risks is called the “Hazard Ranking Score” (HRS). Sites that score 28.5 or greater on the HRS are eligible for NPL listing by EPA.

The public has a right to know about sites in their communities that pose these kinds of risks. The HRS is one important tool in screening and assessing these risks.

The Legislature, in the the 1982 amendments to the NJ Spill Act and again in the Site Remediation  Reform Act (of 2009) mandated the DEP adopt a risk based “Remedial Priority System (RPS) by May 7, 2010. The DEP has failed to meet this Legislative deadline.

Add New Section.

“The DEP shall prepare and publish a list, on an annual basis, of all known contaminated sites that have been scored under the HRS system. The list shall identify the site, its location, its HRS score, and the responsible party(ies). The List shall be published in the January version of the NJ Register.

4. Enforce current law under the SRRA regarding the May 7, 2010 deadline for adopting a “Remedial Priority System” (RPS)

The RPS is a fundamental component of the SRRA.

One of the factors the Department may consider in assuming direct oversight of a site is  (see: C.58:10C-27 Direct oversight of remediation by department; conditions.):

(b) [1-3]

(4) the site is ranked by the department in the category requiring the highest priority pursuant to the ranking system developed pursuant to section 2 of P.L.1982, c.202 (C.58:10-23.16). 

The RPS also is one of the factors that triggers additional safeguards and requirements pursuant to C.58:10C-21 Inspection of documents, information; review.

b. The department shall perform additional review of any document, or shall review the performance of a remediation, if: 

(1) the contamination at the site poses a significant detrimental impact on public health, safety, or the environment as determined by a receptor evaluation or the site is ranked by the department in the category requiring the highest priority pursuant to the ranking system developed pursuant to section 2 of P.L.1982, c.202 (C.58:10-23.16); 

In order to implement these provisions, the legislature the legislature mandated that the RPS be adopted by May, 7, 2010 (one year after enactment):

C.58:10-23.16 Database listing known hazardous discharge sites, cases, areas of concern; ranking system.

2. The department shall prepare and maintain a database that lists all known hazardous discharge sites, cases, and areas of concern. The database shall comprise an inventory of all the known hazardous discharge sites, cases, and areas of concern in the State. No later than one year after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.) the department shall establish a ranking system that establishes categories in which to rank sites based upon the level of risk to the public health, safety, or the environment, the length of time the site has been undergoing remediation, the economic impact of the contaminated site on the municipality and on surrounding property, and any other factors deemed relevant by the department. The database shall include information concerning each site that identifies the location of the known or suspected contaminated site, the status of the remediation, the contaminants of concern, and whether institutional or engineering controls are in use at the site. The department shall provide public access to reports from the database on its internet website.

The DEP has not complied with this non-discretionary legislative mandate, almost 4 years after the deadline imposed by the Legislature. This RPS risk information is directly related to the purposes of the bill and should be incorporated.

Perhaps budget language can be inserted to condition any expenditure of DEP site remediation program salary accounts on compliance with this deadline.

5. Assure that DEP’s recommendations to nominate a site to EPA for NPL listing are based on science and risk to public health and the environment,, not local politics

Section 1.b would authorize DEP to consider “”impact the listing may have on the municipality” (line 25 page 3)

This is a broad and vague standard that would allow all sorts of inappropriate factors to influence DEP’s recommendations.

To narrow the scope of impact insert the following in Section 1.8 (following “impact may have” on line 25)

“on human health and the environment in”

I look forward to working with you to improve the bill and your favorable and prompt consideration of these proposed amendments.

Sincerely,

Bill Wolfe, Director

NJ PEER

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