A “Big Map” for Toxic Site Cleanup?

We all recall the “Big Map“, right? [full disclosure: I worked closely with former Commissioner Brad Campbell on this failed initiative]

“Big Map” was a futile DEP effort to regulate development based on a map (see NY Times post mortem if you are unfamiliar with that controversial failure: War on Sprawl In New Jersey Hits a Wall 

Nine months after Gov. James E. McGreevey promised to wage the nation’s toughest anti-sprawl campaign in its most crowded state, his bold growth-control proposals are all but in tatters.

The governor and his staff conceded in recent interviews that a divided Legislature and opposition from builders made it pointless to introduce the most far-reaching anti-sprawl laws he outlined in a fiery State of the State address in January, when he vowed to take on ”those who profit from the strip malls and McMansions.” …

… on Friday, the administration abandoned the BIG map, for Blueprint for Intelligent Growth, which had divided the state into areas open for more growth, some growth and no growth.

Well, after Monday’s public hearing at DEP, where DEP rolled out their new map based toxic site cleanup priority scheme, I had echoes of “Big Map” ringing in my ears.

If this latest DEP initiative gets anywhere near the scrutiny of “Big Map“, a similar outcome is assured. Here’s why.

Last year, the Legislature enacted a controversial law that privatized much of the State toxic site cleanup program by creating a radical new model, led by private contractors called “Licensed Site Professionals” (LSPs). The new law put control of cleanups in LSP hands, not the Department of Environmental Protection.

To reduce the obvious huge inherent risks of abuse of any program that puts polluters in charge of toxic site cleanups, the law attempted to limit the kind of toxic sites that LSP’s could handle and sought to retain DEP control of the highest risks sites.

Under the new scheme, private LSP’s focus on the lower risk sites, such as simple home heating oil tanks and minor gas station cleanups. In contrast, DEP keeps the big, complex and high risk major industrial sites that represented serious risks to public health and the environment. At least, that’s how it was supposed to work and how the law was written.

The toxic site cleanup cases were to be divvied up between LSPs and DEP based on a new risk prioritization scheme – known as the “Remedial Priorty System” (RPS). The RPS was required to consider all significant risks to human health and the environment and rank sites based on those risks. Based on the RPS ranking, DEP not only would retain the high risk sites, but could take over control of sites from LSP’s if they were ranked as high risk sites.

The RPS system is a complex and extremely important undertaking, because risks from toxic sites come in many forms. The RPS was required by law to be adopted by May 7, 2010.

The aggressive 1 year May 7 deadline for RPS was established basically for two reasons: first, the RPS is an essential component in the design of the new LSP program, which really can not be implemented without a robust RPS system in place to assure adequate oversight and safeguards are in place BEFORE case management decisions are made.

Second, the RPS was mandated 28 years ago in the 1982 amendments to the Spill Act.

In 2006, we disclosed internal DEP documents that showed that DEP had not only failed to comply with this 1982 requirement, but intentionally abandoned the effort (see below from PEER). In response to our disclosure, then DEP Commissioner Lisa Jackson was forced to pledge that her “first priority” was developing a RPS system. This Jackson commitment got written into the LSP law.

Obviously, communities, homeowners, environmental groups, polluters, and the business community have intense and competing  interests in knowing of the risks of hazardous sites – which are the worst risks?

For years, DEP dodged these controversial questions by not adopting an RPS system and ranked list of toxic sites for the public to see.

So all eyes were on the DEP’s new RPS, which they rolled out at a public hearing on Monday.

Unfortunately, despite highly competent technical work, overall, the DEP RPS failed badly.

DEP staffers presented a draft RPS that was limited only to a portion of groundwater pollution impacts (i.e. potential risks to drinking water wells).

But other groundwater related risks, such as serious risks of volatile toxic chemical vapor intrusion into thousands of homes, schools, daycares, etc, were ignored. DEP requires that vapor intrusion risk be considered in the cleanup process, so failure to include them in the RPS is baffling.

Ignored also were risks from polluted groundwater that migrates to rivers, streams and wetlands and harms fish, wildlife, and natural resources. DEP regulations require that surface water, natural resource impacts and ecological risks be considered, so failure to include them in the RPS is baffling.

Ignored also were risks of ingesting or inhaling contaminated soil or dust from a toxic site, which are a major category of risk that drive many human health risk and exposure assessments. In fact, most cleanup standards are based on soil risks. DEP cleanup regulations require sampling, delineation, and cleanup of contaminated soils, so failure to consider them in RPS is baffling.

Most importantly, the RPS is supposed to set priorities for cleanup. So it is vital that not only all potential human exposure pathways and ecological risks be considered, but that the cumulative risks of multiple toxic sites and other pollution burdens be considered as well. Many older and urban communities in NJ have multiple pollution sources concentrated in their neighborhoods.

These cumulative risk – of multiple toxic sites, multiple industrial pollution sources, and mutiple chemical pollutants – have been ignored by DEP for years, despite emerging science documenting serious risks.

Equally, the disproportionate burden born by poor and minority communities – and the unique health and social vulnerabilities of residents of those communities – must be considered in any cleanup priority scheme.

DEP itself recently found that race and income were correlated with environmental pollution burdens. Implementing an EJ policy has been and allegedly continues to be a priority of Commissioner Martin. Yet, amazingly, the DEP RPS compeletly failed to consider what are known as “disproportionate  impacts” and “environmental justice” concerns.

The current draft RPS DEP released is based on a fairly sophisticated “Geographic Information System” (GIS) model. The GIS component of the model has multiple environmental data layers reflecting land use, natural reosurces, water, etc. which are overlain by toxic site information. Toxic sites neaby sensitive receptors, such as homes, are assigned various points to rank potential risks.

The RPS’ landscape mapping approach, GIS systems, and data layers are the same ones used for the “Big Map” initiative, so, in addition to flagging fatal RPS flaws, I urged DEP staffers to learn the lessons of the prior “Big Map” failure. The technical and political lessons are many.

For example, in developing “Big Map”, DEP GIS experts repeatedly warned the Commissioner that the GIS data layers were not designed for site specific regulatory purposes. Inaccuracies and errors in the data were used to discredit the entire enterprise: builders were quick to find and politically exploit many examples where a DEP mapped wetland was now a Walmart. Toxic site issues make all these land use problems far more complex and open many new cans of scientific and political worms, e.g. proximity to receptors is not necessarily a good surrogate for presumed risks of a full exposure pathway. As such, the RPS has a huge potential to break down into numerous site specific risk assessment battles, as polluters challenge the lack of science to support risk estimates in order to downplay those risks and control site cleanups though the LSP program.

DEP claimed that currently ignored vapor intrustion, soil, and ecological risks would be considered in future updates of the model over the next year or so (perhaps longer). However, ANY implementation of the new LSP law requires that a robust RPS be in place BEFOREHAND.

In response to critical questions from EJ advocates and EJ Advisory Committee members Dr. Nicky Sheats and Ana Baptista of Newark’s Ironbound, DEP conceded that the RPS model was not designed to consider cumulative risks or EJ concerns. DEP staffers explained that the RPS model considered only toxic sites in terms of impacts on proximate receptors. In contrast, a cumulative impact based approach would have to look first at the receptors,  and then consider them in terms of multiple toxic sites and multiple other pollution sources.

Comparing the DEP RPS model with an alternative cumulative impact or EJ model is like comparing a microscope to a telescope – they are designed for completely different purposes. So you can’t just tweak the DEP RPS model to get it to consider cumulative impacts and EJ concerns.

So, after DEP conceded this model desing problem, I was disturbed by Dave Pringle’s attempt to claim that this “might be” the first effort to fulfill Governor Christie’s campaign pledge to inject cumulative impacts and EJ concerns  into DEP decisions.

Instead, it is a huge missed opportunity and failure to do so.

And Bob Martin owns that failure.

For full details and links to the documents, see below release from PEER

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For Immediate Release: May 26, 2010
Contact: Kirsten Stade (202) 265-7337

NEW JERSEY TOXIC CLEAN-UP PRIORITIES MISS PUBLIC HEALTH MARK – Belated DEP Toxic Site Priority System Ignores Vapor Intrusion and Migration

Trenton – New Jersey took its first step this week toward a long overdue system for prioritizing the need to clean up thousands of toxic sites. Unfortunately, the state ranking only looks at risk to drinking water sources while overlooking human inhalation, ingestion and other exposures as well as effects on wildlife and the environment, according to Public Employees for Environmental Responsibility (PEER).

The single-track toxic priority system will allow serious public health problems to fester, such as:

• Subsurface vapor intrusion into homes and occupied buildings, as occurred at Pompton Lakes and at the DuPont site where 450 homes were contaminated by vapors from untreated groundwater;
• Migration of chemicals through soils into building basements, as occurred when chromium poisoned hundreds of households in Garfield; and
• Indoor exposures from conversion of industrial buildings, as occurred with the mercury contamination in Hoboken or inside Kiddie Kollege, the now infamous day-care center.

“The one lesson that we should have learned from decades of debacles in New Jersey is that there is no quick-fix for toxic waste” stated New Jersey PEER Director Bill Wolfe, noting that the state is also ignoring exposure to workers, ecological impacts on fish and wildlife, cumulative effect of multiple chemicals and “environmental justice” communities already overburdened with pollution. “If your home is uninhabitable because of toxic vapors what good does it do you that your well water is potable”

The Legislature first ordered the Department of Environmental Protection (DEP) to create a “Remedial Priority Scoring (RPS)” system 28 years ago under 1982 amendments to New Jersey’s toxic clean-up law. In 2006, PEER revealed that DEP officials had intentionally allowed its priority rating system to expire, leaving the state without any guide for deciding which sites were most in need of remediation. Former DEP Commissioner Lisa Jackson then testified that developing a priority system was her “first priority” but despite her pledge no priority system emerged during her tenure.

The RPS was again mandated as a core element of the 2009 Site Remediation Reform Act. Under that law, the RPS serves as the basis for assuring that DEP retains full oversight of the highest risk sites, while newly created private “Licensed Site Professionals” handled the clean-up of lower priority sites with little or no DEP oversight. Under §39 of that law, DEP is supposed to adopt an RPS that can measure and rank each site’s risk to human and ecological health, considering defined receptors, by May 7, 2010.

“The concern is that privatized site clean-up consultants will use this flawed RPS to evade DEP and community oversight at sites where drinking water is not the primary risk,” Wolfe added, pointing out that by DEP’s own admission, its RPS failed to address other key human and ecological risks. “In New Jersey, we have no excuse for taking a half-assed approach to addressing our glaring legacy of toxic sites”

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See New Jersey’s new toxic priority system

View growing vapor intrusion problem

Read the PEER recommendations on how to fix the RPS system

Look at how toxic ranking had been abandoned

Revisit broken pledges to fix toxic ratings

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