Ecological Standards ignored for 16 years – polluters dodge billions in liability

Few people realize that the law actually prohibits the Department of Environmental Protection (DEP) from adopting standards to clean up, protect, and restore damaged fish, wildlife, natural resources and ecosystems impaired by toxic chemicals polluting the environment at over 20,000 sites in New Jersey.
As the result of political concession to the chemical industry who fought to escape this huge liability, the cleanup laws were amended in 1993 (16 years ago) to stop DEP from adopting these standards until an Environmental Task Force was appointed and made recommendations.

The Task Force was never created – thus DEP has been unable to enforce effective cleanup and restoration. Instead, DEP has been using inappropriate and lax federal EPA national Guidelines to make seat of the pants random case by case decisions, as well as missing many sites. Courts have struck down DEP’s attempt to collect damages due to a lack of promulgated standards and regulations (see: NEW JERSEY FORFEITS HUNDREDS OF MILLIONS IN POLLUTION DAMAGES — Court Ruling Faults DEP for Failure to Enact Rules to Compensate Public
http://www.peer.org/news/news_id.php?row_id=930

As a result, the toxic polluters are escaping multi-billion dollars in cleanup and restoration liability. Impaired and degraded ecosystems are being passed on to future generations, who are losing the opportunity to enjoy the use of those natural resources (fish, crabs, birds and wildlife have all been poisoned by chemicals).

Here’s a letter to Governor Corzine – maybe the intrepid environmental lobbyists and reporters will see the huge story here:

Dear Governor Corzine:

We are writing concerning the need for standards to assess and restore adverse ecological impacts resulting from the discharge of hazardous substances to the environment at more than 20,000 sites in New Jersey. Individually and cumulatively, these sites represent a major threat to sensitive ecosystems and natural resources, as well as public health. It is imperative that those impacts and ecological impairments be assessed, restored, and the public fully compensated for lost uses of important fish, wildlife and other natural resources resulting from the discharge of hazardous chemicals to the environment.

The need for these standards has become even more pressing, in light of the recent law enacted to establish a privatized “Licensed Site Professional” (LSP) program. (P.L. 2009, c.60).
http://www.njleg.state.nj.us/2008/Bills/A3000/2962_U1.HTM
Under the LSP statute, private sector LSP’s are effectively – if not fully legally – delegated essential governmental powers to determine whether ecological and natural resource injuries have resulted from the discharge of hazardous substances, and whether and how those injuries should be restored and the public compensated for lost use of valuable natural resources. (See: Privatization of NJ Toxic Cleanup Law Reveals a Systematic Collapse
http://blog.nj.com/njv_bill_wolfe/2009/05/lisa_jackson_october_23.html

Private sector LSP’s will dictate the outcome of critical ecological and natural resource injury assessments by controlling site sampling, remedial investigation, and natural resource injury determinations required by current DEP site remediation regulations. These sampling data and technical determinations are critical to DEP’s current “Natural Resource Damage” (NRD) program. The NRD program discharges the State’s legal duty and moral obligation to act as steward of publicly owned natural resources.(For DEP’s NRD program background, see: http://www.nj.gov/dep/nrr/

The unbounded and excessive discretion and potential for abuse by LSP’s with respect to ecological impacts were not effectively addressed in the LSP law or your Executive Order No. 140. (See: Governor Corzine Signs Bill Reforming Cleanup of Polluted Sites
http://www.state.nj.us/governor/news/news/2009/approved/20090507b.html

Specifically, DEP regulations governing remedial investigation (@ NJAC 7:26E-4.1) require important data collection and investigation:
http://www.nj.gov/dep/srp/regs/techrule/techrl04.pdf

“Collect and evaluate all data necessary to evaluate the actual and potential ecological impacts and to characterize all natural resource injuries, including the nature and extent of injury to soil, water, flora and fauna, caused by the contaminants of potential ecological concern at the site;”
iii. Ecological investigations for the purposes of characterizing natural resource injuries pursuant to N.J.A.C. 7:26E-4.7;
7:26E-4.7 Remedial investigation of ecological receptors

(a) If further ecological investigation is required pursuant to N.J.A.C. 7:26E-3.11(a)4, additional investigation shall be conducted during the remedial investigation to characterize the extent of contamination along contaminant migration pathways and within an environmentally sensitive natural resources.

Under legislative amendments adopted in 1993, New Jersey law expressly prohibits the Department of Environmental Protection from establishing ecological standards to address hazardous chemical discharges to the environment until recommendations are issued by the Environmental Advisory Task Force. Specifically, NJSA 58:13B-12 a. provides:

“The department shall not propose or adopt remediation standards protective of the environment pursuant to this section, except standards for groundwater or surface water, until recommendations are made by the Environment Advisory Task Force created pursuant to section 37 of P.L.1993, c.139. Until the Environment Advisory Task Force issues its recommendations and the department adopts remediation standards protective of the environment as required by this section, the department shall continue to determine the need for and the application of remediation standards protective of the environment on a case-by-case basis in accordance with the guidance and regulations of the United States Environmental Protection Agency pursuant to the “Comprehensive Environmental Response, Compensation and Liability Act of 1980,” 42 U.S.C. s.9601 et seq. and other statutory authorities as applicable”

In the absence of New Jersey specific ecological standards required to protect NJ’s unique and sensitive ecosystems, lax federal EPA guidelines are used. These EPA Guidelines are designed for major Superfund sites and not well-suited or designed for local ecological conditions, land use, or the threats posed by 20,000 sites in New Jersey.

It has been 16 years since 1993 amendments that created the Environmental Advisory Task Force (EATF). Because the law forbids DEP from promulgating necessary ecological standards until the EATF makes recommendations, it is imperative that you establish the EATF pursuant to section 37 of P.L. 1993, c.139. Additionally, the EATF and DEP should be given guidance in the form of an Executive Order regarding an aggressive 180 day timetable for producing recommendations, followed by a subsequent 180 day timetable to propose and adopt regulations to amend current applicable DEP regulations @ NJAC 7:26E.

We look forward to your favorable and timely consideration of this request.

Sincerely,

Bill Wolfe, Director

NJ PEER