Privatization of NJ Toxic Cleanup Law Reveals a Systematic Collapse

“Forget it, Jake. It’s Chinatown.”
http://www.phenry.org/movies/movienight/chinatown.php

In an extraordinary new low for NJ’s declining commitment to protect the health of residents and the environment, this week, Governor Corzine signed legislation that privatized the NJ toxic site cleanup program. See:

Law allows private contractors to oversee pollution cleanups

The pioneering NJ toxic site cleanup law – commonly referred to as the “Spill Act” – was enacted in 1976. It became the model for the national 1980 “Superfund” law, which was sponsored by NJ Congressman Jim Florio, a then emerging environmental champion.

NJ Governor Jon Corzine backed and signed privatization law

Senator Bob Smith (D), Co-sponsor moved the bill through the Senate Committee he chaired.

Assemblyman John McKeon (D), lead Co-sponsor of privatization bill. As Chair of the Assembly Committee that heard the bill, McKeon worked hard to make this bill happen.

Hal Bozarth, lobbyist for NJ Chemistry Council stayed behind the scenes –

Yet, the Governor and NJ Legislature ended up delegating even more corrupt unaccountable power to the same private interests who had broken laws and poisoned communities and people across the state.

Let’s take a look at that ugly history and wonder in amazement how we got here.

Tony Russo – chemical industry lobbyist played the legislature like a fiddle.

In June 2005, the NJ Legislature held oversight hearings on the WR Grace site in Hamilton, NJ. That case is a textbook illustration of the need for strict DEP oversight and fatal flaws in a prior law that privatized portions of the cleanup process.

former NJ DEP Commissioner Bradley Campbell

WR Grace had falsely certified that their site was clean. DEP had rubber stamped this certification without conducting sampling. The site was so polluted with carcinogenic asbestos, that the US EPA later was forced to conduct an emergency removal of over 15,000 tons of toxic soil. The Legislature called DEP Commissioner Campbell to account for that failure. As a result of this oversight, a state criminal investigation of WR Grace was launched (EPA had been involved in a national criminal investigation of WR Grace).

Jorge Berkowitz – private cleanup consultant who would economically benefits from the bill lobbied hard and played a large role.

[5/26/09 clarification: – The WR Grace fiasco preceded the tenure of DEP Commissioner Campbell. The original post mentioned Campbell in tracing legislative history. The post was not meant to imply that the WR Grace debacle was the fault of Campbell. To Campbell’s credit in the WR Grace matter, his legislative testimony was relatively candid about DEP’s prior failures and did identify some statutory and regulatory flaws, but in doing so, Campbell ducked and did not call for repeal of the real sources of the problem, which flowed from the privatization of oversight and decision-making in the 1993 ISRA law. While it is always easier after the fact to blame statutory deficiencies and identify the flaws of one’s predecessor’s (as opposed to aggressively enforcing existing authority to prevent problems), Campbell did recommend criminal penalties for providing false information to regulators. That and other reforms Campbell urged were not incorporated in the LSP bill.]

But the WR Grace debacle was no anomaly. It was quickly followed by other bombshells – in the same town. A “Ford PCB” scandal prompted Hamilton mayor Glen Gilmore to complain:
 

“We’re a community that’s been dumped on and lied to – my community has lost any confidence in what they’re told by experts or officials because of this. And I can’t blame them.”

Wow. Why would a Mayor be so scathingly critical of a fellow Democratic Administration? Because of this:

“Last month, town officials were told that crushed concrete used as a roadbed at a planned housing development was tainted with cancer-causing PCBs. The concrete came from the demolition of the old Ford assembly plant in Edison. Adding to the insult, the state [DEP] had known about the pollution since September but failed to notify locals for six months“

See: Bergen Record. “Cleaning up the Cleanup Process in New Jersey”.
http://www.redorbit.com/news/science/456127/cleaning_up_the_cleanup_process_in_new_jersey/

The Ford PCB scandal prompted another round of Legislative oversight hearings in June 2006. I met with District legislators and testified at those June 2006 hearings. As a former DEP staffer with experience in the cleanup program, my testimony laid out the real causes of the problem, and launched the environmental community’s legislative reform campaign agenda. See:
http://www.peer.org/docs/nj/06_1_6_peer_testimony.pdf

Literally at the same time that the June 2006 legislative oversight hearings and criminal investigations were ongoing, the controversial Trenton Martin Luther King Jr. school (toxic soil imported to school construction site) and Kiddie Kollege disasters were in progress.

Office of Legislative Services staffer and Senate democratic and republican staff wrote the bill.

In the infamous Kiddie Kollege case – in which a day care center was operating in a mercury-contaminated former thermometer factory – the DEP did not immediately warn the parents and workers about possible dangers for three months! The Kiddie Kollege site (Accutherm, Inc.) was under a 1995 cleanup order issued by DEP but never enforced.
But in an August 3, 2006 DEP press release (issued jointly with the NJ Attorney General), Lisa Jackson covered up a massive DEP failure by falsely claiming that DEP shut the daycare center down “as soon as DEP discovered” it. Jackson lied:

NJ DEP Commissioner Lisa P. Jackson

“As soon as the DEP discovered that the formerly abandoned site was housing a day care center, inspectors moved in, took samples and shut it down…A day care center should be a safe haven — not a room full of toxic mercury.”  (Lisa Jackson, NJDEP Commissioner)

See:  AG Farber Announces Investigation
of Contamination at South Jersey Day Care Site;
“Kiddie Kollege” Closed Down After Testing Revealed Excessive Mercury Levels
http://www.nj.gov/oag/newsreleases06/pr20060803b.html

But, as the New York Times disclosed, before issuing that press release, Jackson knew the chronology. She knew that DEP had failed to enforce the DEP’s own 1995 Clean-up Order and she knew that DEP had “discovered” the problem at the day-care center during the first week of April 2006. She also knew that Instead of acting immediately upon discovery of the problem, DEP quietly negotiated a voluntary cleanup agreement with the owner and waited more than 14 weeks before they sampled the indoor air and notified parents on July 28, 2006. According to the New York Times story of 9/1/06:

See: Memo Shows Agency Knew of Danger in Child Care Building
http://www.nytimes.com/2006/09/01/nyregion/01mercury.html?scp=5&sq=Kiddie%20Kollege&st=cse

This kind of bad press forced DEP Commissioner Lisa Jackson to respond. But she was never held accountable.

In October 23, 2006 testimony to NJ Legislature conducting oversight hearings of DEP toxic site cleanup program, Jackson admitted that DEP lacked any priorities to guide the cleanup program. This exposed the long-standing lie repeated over and over again by DEP that they addressed the “worst sites first”:

NJ DEP Commissioner Lisa P. Jackson was Corzine’s loyal Lieutenant and championed the privatization bill, but later reversed course during her EPA confirmation hearings before the US Senate.

“The DEP is taking steps internally to help prevent residents of the State of New Jersey from exposure to contamination from regulated sites. The most important thing we are doing is developing a new ranking system to prioritize sites so that we focus our resources on the worst cases; those that present the greatest risks to public health and the environment.“

See Jackson’s testimony: http://www.nj.gov/dep/commissioner/102306_srp.pdf

The Jackson commitment to develop priorities was never met.

As a result, the lack of a priority list allowed DEP to make an excuse that 20,000 cases and not enough staff were the problem. This lie backfired, as industry lobbyists used it to argue that privatization was the solution to DEP staff shortfalls.

But Lisa Jackson later went even further in pointing out glaring flaws at DEP. In a rare moment of truth, Jackson admitted that the DEP cleanup program was “broken”. Jackson identified the source of the problem as private sector self reporting and a lack of enforcement that undermined DEP’s ability to protect the public. Jackson stated in a September 24, 2007 DEP Press Release:

“We realize that the state’s system that allows self-reporting for monitoring of these contaminated properties is broken, and we are taking the first steps toward fixing this,” Commissioner Jackson said. “Still, this situation seriously undermines the department’s ability to ensure protection of public health and the environment. We are committed to using every enforcement tool available to bring these responsible parties into compliance as promptly as possible.” http://www.state.nj.us/dep/newsrel/2007/07_0041.htm

But something happened between September 2007 and April 2008, because Jackson reversed course.

Now, instead of a lack of DEP priorities, industry self reporting, and lax enforcement of cleanup requirements as the causes of the problem, Jackson joined the polluters and now championed PRIVATIZATION.

DEP Commissioner Jackson whispers in Governor Jon Corzine’s ear

On April 3, 2008, Lisa Jackson said:

“The New Jersey Department of Environmental Protection will privatize pollution control and deregulate toxic cleanups, according to statements by the agency’s top official.

In a breakfast roundtable with a real estate group on April 3, 2008, DEP Commissioner Lisa Jackson said, “… I feel outsourcing the consultant program to the private sector will ease the workload and lower the wait time for all those involved in site remediation.“

See: New Jersey Seeks to Outsource Pollution Cleanups
http://www.ens-newswire.com/ens/apr2008/2008-04-15-094.asp 

But – after she left NJ to become head of US EPA – Jackson reversed course AGAIN.

During January 2009 US Senate Confirmation hearings for US EPA Administrator, Jackson was asked point blank whether she would bring to EPA the privatization program she supported in NJ.

US EPA Administrator nominee Lisa Jackson testifies at confirmation hearing before the Senate Environment and Public Works Committee.

Jackson repudiated privatization – here’s an excerpt of testimony regarding NJ’s privatized “Licensed Site Professional” (LSP) toxic site program:

Question by Committee Chair Senator Barbara Boxer:

Q: Please provide “your views on polluters self certifying that property is clean” (@ time 3:26:45)

A: Lisa Jackson:

“I don’t believe that process [i.e. private certification, as in LSP] has merit at the federal level” (@ time 3:42:43)

Chairman Boxer confirms that Jackson has rejected privatization at EPA and removes any ambiguity at time 3:43:03 by saying:

Q: Boxer: “you don’t anticipate and you do not expect to allow private consultants to certify sites as clean”

A: Lisa Jackson: “NO”

Watch CSPAN video of Jackson testimony here:
http://www.c-span.org/Watch/watch.aspx?MediaId=Congress-A-14317

It is not hard to recognize that the sources of the problems in DEP site remediation program stem from TOO MUCH private sector influence. DEP does ZERO enforcement of cleanup requirements and industrial polluters are allowed to simply stonewall DEP case managers and run out the clock. Other polluters that want a quick and dirty cleanup approval expedited by DEP exert top down political pressure on DEP staffers to rubber stamp grossly deficient cleanup plans in order to allow land transactions and development to proceed at low cost. By law, the selection of the cleanup plan is controlled exclusively by the polluter, an absurd situation that allows cost minimization and economic factors to drive what should be a public health and environmental protection program.

This – plus GROSS MISMANAGEMENT at DEP – is what explains the huge case backlog and extensive delays in cleanup. A US EPA Inspector General’s Report validates that assessment. According to the EPA IG Report:

“Claims about New Jersey’s overwhelming workload were brought to our attention during the evaluation. At that time, we requested documentation from NJDEP to support this workload challenge. We specified that we would need evidence that spanned the 20 year period since these sites were listed on the NPL. NJDEP did not provide this information.”(@ page 11)

Read the EPA IG Report here:
Improved Controls Would Reduce Superfund Backlogs
http://www.epa.gov/oig/reports/2008/20080602-08-P-0169.pdf

Irene Kropp, DEP Assistant Commissioner for Site Remediation testifies to the Senate Environment Committee to support privatization and dodge accountability for massive failures.

PRIVATIZATION will only make those problems worse, not better, as the environmental cop is taken off the beat.

After the LSP bill passed the Legislature and was on the Governor’s desk, there were additional highly embarrassing disclosures. Internal DEP documents and emails showed suppression and coverup of a DEP risk assessment on toxic chromium, and the health risks in Jersey City and the Hudson County “chrome coast”. What did Lisa Jackson know and when did she know it? She put people’s lives on the line to appease NJ business community and advance her own career. How sick is that?

See: HIGH CHROMIUM DANGER KNOWN BY NEW JERSEY LEADERS SINCE 2007 — Lisa Jackson and DEP Brass Decided to Proceed As If New Data Did Not Exist
http://www.peer.org/news/news_id.php?row_id=1191

CHROMIUM FAR DEADLIER THAN EARLIER ASSESSMENTS INDICATE — Scores of Capped New Jersey Contaminated Sites Will Have to Be Re-Evaluated
http://www.peer.org/news/news_id.php?row_id=1184

In a last ditch effort to bring some sanity to the table, I outlined this entire history here: “Dumped on and Lied To”
http://blog.nj.com/njv_bill_wolfe/2008/09/dumped_on_and_lied_to.html

NJ DEP Headquarters, Trenton, NJ

For a full chronlogy and extensive documentation of the DEP toxic site program collapse, including internal DEP documents, reports and EPA IG Report, see the links here:
http://www.peer.org/state/state_info.php?sid=nj

Update: 5/11/09 – I think it is important to include the below dialogue, which is occurring on a national brownfield list-serve (starts with my reply):
Chris – in response:

1. NJ went the “Brownfield” route way back. It started with 1983 legislative amendments know as “ISRA”, where pave and wave (engineering and institutional controls) originated and cleanup standards were allowed to be based on land use (industrial versus residential). Prior to ISRA, the law allowed DEP to block real estate property transactions and impose permanent (removal/excavation) remedies. This was all too costly and slow for NJ business you see. Enviro’s naively signed off onthis rollback in exchange for a 1 in a million cancer risk standard as the basis for cleanup standards. Dumb move! You see, exposure controls (caps) can eliminate risk, at least on paper! No exposure, no risk, right?
But the “brownfields” program really began in earnest as a small bore program in 1993 under Democratic Governor Jim Florio. It was called “the developers track”. The policy was to prioritize and expedite the approval of cleanup plans where there was a viable RP, a real cleanup plan, and a real private investment in a viable land development project. The cleanups were to proceed under enforceable Administrative Consent Orders (ACO’s), which included mandatory timetables, stipulated penalties for non-compliance, and financial assurance. Less than 100 cases were participating in this program.

In 1994, Republican Christine Todd Whitman was elected Governor. She pursued a “NJ is Open for business” policy, with market based “regulatory reform” and “voluntary compliance”. Under that policy, the “developers track” program was greatly expanded and gutted: 1) the ACO mechanism was rescinded and replaced by voluntary “Memoranda of Agreement” (MOA’s); 2) Financial assurance was refunded; 3) The pace of “cleanup” was determined by the RP’s economic needs; and 4) Several thousand cases opted into this program, which essentially provided an enforcement shield for stalled cleanups.
The Whitman policy was enacted into law in the 1997 “Brownfields Act”.

2. Yes, the NJ law includes a “Covenant not to sue” (CNS), “No Further Action” (NFS) letters, “change in standards” and innocent purchaser liability protection – all done to provide “certainty” and “finality” to the RP’s and investment community.

With the exception of some great work in 2002 by former DEP Commissioner Brad Campbell to recover “Natural Resource Damages” (NRD), it’s been all downhill for NJ cleanup programs since Whitman.
Bill Wolfe
—– Original Message —–
From: crborello@aol.com
Sent: Monday, May 11, 2009 10:03:07 AM GMT -05:00 US/Canada Eastern
Subject: Fwd: Privatization of NJ Toxic Cleanup Law Reveals a Systematic Collapse
So New Jersey is following what Ohio did years ago, allowing polluters to take over/ guard the chicken coop…..Political pressure and corporate polluters win big again, and it appears both Dems and Republicans alike seem to think the Brownfields/Voluntary Action is the best thing since sliced bread.. ( Someone recently called this stuff going on “economic blackmail.”)…. This is why many of us have been so concerned about the Brownfields/Voluntary Action all along – calling it “corporatization” rather than privatization. As always, the devil’s in the details. What the article doesn’t mention is whether there are covenants not to sue, audit secrecy clauses that we were told are in our Ohio bill, making things even worse. What about the health care costs when people get sick from these polluted sites being reused? Sadly, it seems to many, that as long as the polluters get off the hook, and these contaminated sites can be “redeveloped” to make politicians look good that so that they can claim that they helped bring jobs into the state, health concerns are of no consequence. We all know from our nightmare experiences with ATSDR, illnesses can be oh so easily downplayed and swept under the rug when they occur, no sweat. Question: Can someone please now tell me why there are still some reported environmental activists working on the side of promoting Brownfields/Voluntary Action programs? I don’t get them at all. How do they justify this? Could they possibly be that naive?
Chris