Murphy DEP Lawsuit Exposes Huge Flaws In DEP’s Natural Resource Damage and Toxic Site Cleanup Programs

Attorney General Cynically Deploys Sham “Environmental Justice” Claims

NJ Spotlight Again Misreports The Story And Transcribes DEP Press Release

Are Parents Of Kids at “SafeSplash” Aware Of Indoor Air Risks?

I wonder what the DEP Vapor Intrusion study found and if there are data on indoor air at “SafeSplash Swim School” and whether the parents of kids are aware of these risks?

I Tweeted last week that NJ Spotlight would publish a story that grossly distorted one of my recent posts and provide cover for DEP.

I was exactly right about that (if wrong on the subject matter!), because, just as predicted, today Spotlight wrote about a new DEP “Natural Resource Damage” (NRD) lawsuit (hit this to read the complaint).

There are so many problems with the Spotlight story and the DEP complaint that it’s hard to know where to begin.

So, let’s start with 4 critical flaws I’ve written about that were totally ignored:

1. DEP still has failed to adopt enforceable NRD regulations. This assures a very bad outcome: either a pennies on the dollar settlement or a losing court case. DEP Commissioner LaTourette and the Attorney General are dodging accountability for these flaws. For details, see:

• Murphy Attorney General’s Office Evades Questions On Natural Resource Damage Lawsuits

2. NJ’s corporate polluters have evaded billions of dollars of NRD liability because they killed Senator Smith’s Legislative Taskforce on NRD standards. For that story, see:

• Big Corporate Polluters Quietly Veto Natural Resource Damage Compensation Standards

3. The public has been duped by conservation groups about all this, see:

• Conservationists Duped The Public On DEP Natural Resource Damage Program

4. The AG’s claims about “environmental justice” are cynical, false, unfounded factually and scientifically, and deeply misleading (see paragraph #7). This is a pattern of manipulation of the EJ issue. 

(and where are the DEP’s regulations to implement that “historic” environmental justice law?)

The DEP spin is egregiously disgusting in this NRD lawsuit – which implies that DEP is considering EJ in toxic site cleanup and NRD – because the NJ State environmental justice law explicitly exempts DEP’s toxic site cleanup program. That cleanup program is the technical and regulatory source of the DEP’s NRD program. For that story:

• NJ Gov. Murphy Signs Flawed Environmental Justice Bill Into Law

(1) – the Passaic River toxic site cleanup and dioxin are correctly noted as important.

But the bill exempts all toxic site cleanups from the environmental justice impact statement and cumulate impact reviews.

In addition, the AG/DEP legal complaint exposes serious flaws, which I summarize in emails to Spotlight reporter Jon Hurdle below.

But before we get into the details, I must note that Google maps of the site (205 Main Street, Lodi, NJ) tells me that the toxic contaminated site in question is currently occupied by “SafeSplash Swim School” (or adjacent to the contaminated site).

The DEP complaint notes that the site is contaminated with known carcinogens, which have migrated off site. The chemicals are volatile organics that travel quickly through soil and groundwater and migrate as vapors into nearby buildings (a process known as “vapor intrusion” – see paragraph #4).

I wonder what the DEP Vapor Intrusion study found and if there are data on indoor air at “SafeSplash Swim School” and whether the parents of kids are aware of these risks?

Here is my note to reporter Jon Hurdle on the complaint: (apologies for the fonts – this happens when I cut and paste emails and I don’t know how to fix it)

1) Per Google maps, it looks like the site is now occupied by “SafeSplash Swim School”. I wonder what the vapor intrusion study found about vapor migration and indoor air quality and human health exposure there. I wonder if parents know anything about this?

2) DEP issued a groundwater “classification exception area” (CEA) despite the fact that DEP admits that the contaminated groundwater plume has migrated off site. This is a violation of DEP’s own CEA regulations.

3) DEP issued an “RAO” without addressing NRD issues. This is a HUGE problem.

4) DEP’s “passive remedy” was not a permanent remedy and even DEP admits that contaminants are moving off site and the groundwater will be polluted in excess of standards and not be restored “for decades”.

5) DEP approved the Newark complex cleanup liability scheme without consideration and capture of NRD liability.

6) Despite contamination at the site being known to DEP for almost 40 years, DEP still does not know all the potential responsible parties – as a result, they sued phantom “xyz” corporate RP’s and phantom “1-10” individual RP’s. This is absurd and patently illegal (If you can’t understand that, think of a prosecutor going to court to indict some unknown individual for a hypothetical crime).

7) The EJ assertions are opportunistic, false, and grossly political and have zero scientific or factual basis. This is cynical and disgusting.

8) DEP has not only failed to adopt NRD regulations. DEP has taken down and eliminated their prior “groundwater injury formula” that was posted on the DEP website and provided as DEP Guidance. It was based on gallons of groundwater polluted and the BPU approved water rate for the location in question. Instead, DEP merely identified the area of the groundwater plume (a little over 3 acres)

9) I reiterate my prior point about DEP failure to adopt NRD regulations. This is a certain legal loser, if the polluters challenge it.

10. The quality of AG/DEP science and their legal performance have radically declined.

Here is my initial note to Hurdle:

Jon – did you read the complaint? My goodness, right off the bat in paragraph #4 DEP fails to correctly state the science on the health effects of VOC’s, PCE and TCE.

They are classified as known human carcinogens and probable human carcinogens.

Yet DEP fails to include cancer in the health effects! This omission is NOT an oversight. It’s because DEP has sided with the chemical industry to downplay the risks of indoor air and vapor intrusion! Go look at DEP’s published “indoor air” “vapor intrusion” Guidance and health screening levels (which DEP has a failed to adopt as regulatory standards, which makes them unenforceable and subject to weak litigation claims).

In contrast, in the very next paragraph, DEP does note that PCB’s “increase risk of cancer”.  But this too understates the risks because PCB’s are classified as “probable human carcinogens”.

These scientific facts would the relevant to Spotlight’s Colonia High School cancer cluster story, no?  (gotta love that Facebook epidemiology!)

On the legal side, I haven’t read the full complaint yet, but Tittel is correct and it is not just his personal view. Several cases and many NJ lawyers have exposed the legal weakness of DEP’s NRD program, which is a result of DEP’s failure to adopt NRD regulations, as they agreed to do in a prior judicial settlement agreement signed by DEP Commissioner Brad Campbell.

You know this, yet still swallow AG/DEP spin.

Why is that?

To Doug O: shame on you.