For Immediate Release
July 6, 2012 Contact Jeff Tittel, 609-558-9100
Court Decision Rolls Back Toxic Site Cleanup Standards Today the Appellate Court ruled in favor of polluters over the public health.In Des Champs Laboratories, INC., vs. Robert Martin, the Court determined that the DEP does not have jurisdiction to require a property owner certify the site has been cleaned up or is pollution free before they sell it. The property owner does not have to remove all the toxins due to the weakening of cleanup standards in the Industrial Site Recovery Act and the Site Remediation Reform Act.The Legislature and Governors have weakened DEP oversight on toxic sites and clean up requirements and the Court has ruled that setting standards for final cleanup is no longer in the agency's authority. With over 20,000 contaminated sites in the state, virtually all residents will be impacted by this Court decision.
"This case is very troubling but expected.The Court ruled the ISRA and SRRA legislation was passed to make it easier to develop sites, not to cleanup sites.Therefore the Court had to rule with polluters over the DEP.We said all along that the LSRP program was about weakening environmental cleanup and the Court today said that is exactly what the Legislature did," said Jeff Tittel, Director, NJ Sierra Club. "Bad laws make for bad court decisions, putting the public health at risk." What the court said here is based on SRRA and ISRA as long as they think there is a small amount of pollution and institutional controls work they do not have to certify the site is clean.It has created a conflict the Spill Act and other programs that the Appellate Court wants the Supreme Court to straighten out.The decision was stayed for 30 days and now the administration will have the opportunity to appeal.
"The SRRA was passed to turn contaminated sites into developed sites, not necessarily clean sites.The court did what we feared, said the LSRP program interferes with the DEP's ability to require full cleanups of contaminated sites.Now the question is will the Governor Christie appeal this decision or will he take the side of polluters over public health and safety?" asked Jeff Tittel. Landowners no longer have to prove there is no contamination or amounts under safe limits on a site before selling it or determining the cleanup complete, including toxic chemicals.As long as these property owner or polluter believes to the best of their knowledge that institutional controls will work or the amount of pollution left is a small amount, they do not have to clean up the site any further or certify the site is clean. 500 pounds or 55 gallons of toxic materials or 220 gallons of oil or other hydrocarbons could be considered clean and remain on site.It does not distinguish on the type of toxins so something extremely toxic could be allowed to remain on site including chromium, arsenic, or cyanide.
"What is considered "de minimis" may be fairly hazardous and impact surrounding residents and communities.It is not even about how much is discharged, it is about what the polluter thinks, which is subjective and very hard to prove.Instead of requiring the polluter to prove the site is cleaned up, now the polluter onlyhas to think the cap will work or the amount of pollution is small and there is no requirement for them to clean it up.Now the fox only has to think the hen house is safe," said Jeff Tittel.
"In this decision the court ruled even if toxins are in the groundwater and could leave the site and enter drinking water or people's homes as vapors the DEP cannot require that the pollution be cleaned up or stop the site from being certified as clean," continued Tittel. The SRRA created the Licensed Site Remediation Professionals (LSRP) program which went into effect in May.Under the program all contaminated sites, except a select few, have their cleanup plans developed, implemented, and overseen by private contractors hired by the owners, responsible parties or people who purchase these properties.The consultants pick the cleanup plan and can waive compliance and even standards.There is virtually no DEP oversight or enforcement mechanisms. The Sierra Club's major concerns with the LSRP programs are:
-Lack of DEP oversight. The DEP will review just 10 percent of paperwork in conjunction with the cleanup, will not visit any sites, and will conduct audits on only 10% of LSRPs. The state is basically saying that it's not in the business of insuring the cleanup of contaminated sites.
-*LSRPs can determine their own waivers and alternative compliance guidelines.*LSRPs can decide what rules they do and do not want to follow on site with no oversight or enforcement by the DEP.We are concerned that LSRPs will be able to waive standards and compliance and more importantly will have the ability to waive certain remediation controls without any DEP oversight.There is no guarantee you cannot give multiple waivers to the same project making the law meaningless.Alternative compliance mechanisms could be used without having the DEP sign off on them.Since the LSRP signs off on the final cleanup, there is no way for DEP to know if the waivers actually met the objective of cleaning up and securing the site.Waivers would allow for weak institutional controls to be used on site instead of removing toxic materials, potentially creating "pave and wave" situations.This is in addition to the DEP Waiver Rule that allows the Commissioner to waive standards and compliance requirements.
"The DEP commissioner can issue waivers but the private consultants can also give themselves waivers.So you can waive goodbye to real cleanups at these sites, putting communities at risk," said Jeff Tittel.
-*Instead of removing toxic materials from these sites, more polluters will "pave and wave" -- essentially place an asphalt cap overtop the hazardous materials.* According to every scientific study, these types of controls will fail. Caps will crack from the weight of buildings. Sewer lines have the potential to destroy the cap, unleashing toxic materials and gasses. When these measures do fail taxpayers will be responsible for future clean ups, not the LSRP or the polluter.
-*Consultants can weaken groundwater standards and cleanups so that toxics can continue to contaminate water supplies. * LSRP's can declare virtually all groundwater contaminated areas classification exemption areas (CEAs), not requiring a cleanup.Dilution could be used instead possibly resulting in vapor intrusion in homes or the plume moving and impacting other drinking water supplies.
-The polluter will not be held responsible after cleanup. The responsible party will not be required to have insurance and it is not mandated to establish an escrow account to protect the site's future owner if more contamination is later found.It will be up to the homeowner or the taxpayer to clean up the additional pollutants, not the polluters or the developer.The administration is eliminating the "self-guarantee" protection for tax payers from the LSRP program.This lets LSRPs off the hook for any liability later down the road and that goes against the statue.
"When toxic waste is found on a site later, it is not the developer or LSRP that will be held responsible.Instead the tax payers will end up paying for it," said Jeff Tittel.
-Some of the most toxic sites will be turned over to private hands.The DEP is going to maintain control of very few of the 500 most contaminated sites in New Jersey.The definition to maintain DEP control is so narrow that virtually no sites will qualify.Even the most toxic sites could come under the LSRP without direct DEP oversight.
"The Court ruled that the Legislature created a polluters holiday with ISRA and SRRA.The Legislature needs to fix this glaring loophole or put families in New Jersey at risk to health impacts form contamination left at toxic sites," said Jeff Tittel. The Appellate Division decision can be accessed at: http:www.judiciary.state.nj.us/opinions/a3235-10.pdfa> -- Kate Millsaps Program Assistant NJ Chapter of the Sierra Club 609-656-7612