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Privatization of NJ Toxic Cleanup Law Reveals a Systematic Collapse

“Forget it, Jake. It’s Chinatown.

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
Thirty three years later, the Corzine debacle allows private consultants – working for major industrial polluters responsible for the cost of cleanup – to control the cleanup process and certify that sites have been cleaned up and that the cleanup plans they prepare will protect public health and the environment.
How we got to this point – and how this bill was allowed to sail through the NJ Legislature – illustrates a systemic collapse by the NJ Legislature, the Governor’s Office, the DEP and the media – a complete and total breakdown.
Senator Bob Smith (D), Co-sponsor moved the bill through the Senate Committee he chaired.
In a cruel irony, the legislative process that resulted in privatization began as a response to gross abuse by private sector actors. Amazingly, not even the fact that 60 toddlers were poisoned in a daycare center located in a toxic former industrial mercury thermometer factory could match the political muscle of the toxic polluters in NJ.
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.
Perhaps worse, privatization occurred at the same time that at least 3 criminal investigations were launched and 3 rounds of legislative oversight hearings were held to probe violations of toxic site cleanup laws by consultants and corporate actors. So, legislators, the Governor, the DEP Commissioner, and the media all knew exactly what the results would be in rolling back cleanup laws.
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”.

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:

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


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

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

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:

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

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

CHROMIUM FAR DEADLIER THAN EARLIER ASSESSMENTS INDICATE — Scores of Capped New Jersey Contaminated Sites Will Have to Be Re-Evaluated

In a last ditch effort to bring some sanity to the table, I outlined this entire history here: “Dumped on and Lied To”

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:

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?

  1. AlanMuller
    May 10th, 2009 at 14:09 | #1

    Thanks, Bill, for your continuing reporting on this sordid tale. Whatever became of Jon Corzine’s backbone?
    This nasty idea has been proposed by supporters of Delaware’s new governor, Jack Markell, and I’m not confident he won’t try it.
    I’m curious about the role played by NJ environmental advocacy groups and local government environmental commissions. Did they oppose this, and if so, why didn’t they prevail…..?

  2. jbken
    May 10th, 2009 at 14:41 | #2

    Privatization seems inevitable for many government functions as employing people at the wage and benefit levels many have attained gets increasingly unaffordable.
    But Massachusetts, a not overly dissimilar state from NJ, has had LSPs for years now. Is there some unbiased assessment of their experience that was looked at before instituting this law?

  3. JerseyOpine
    May 10th, 2009 at 19:04 | #3

    This is an invitation for corruption, & NJ will be the worse for it.
    Unfortunately, under Corzine the DEP hierarchy has become so politicized that the DEP is a shadow of its former self.

  4. nohesitation
    May 10th, 2009 at 20:43 | #4

    Alan – responding to your questions:
    1. Local environmental commissions at this out. (as did local governments).
    2. NJ environmental groups were defeated badly.
    Starting in the summer of 2005, enviro’s (led by NJ PEER, my work) were showing so many abuses and building public awareness and support in the media for real legislative reforms.
    Early on, even Jackson made commitments to support strengthening the law.
    But then Jackson formed a “stakeholders” group. Enviro’s allowed her to hand pick and exclude participants . This not only created an internal fight, it derailed all progress in organizing and media. It , forced the policy discussion out of the newspapers and into the room.
    Spending months negotiating in the room (instead of working on organizing and press), allowed the industry lobbyists about 18 months to work the legislature. It diverted the press as well.
    After enviro’s went in the room, they refused to criticize Jackson, because she told them she was negotiating the best deal they would get.

  5. nohesitation
    May 10th, 2009 at 20:48 | #5

    jbken – Audits show the Mass LSP program a failure – look at my May 19, 2008 post. “The Lake Wobegon Effect” where I provide links to the Mass audits and failure data.
    Hit the archives buttton on my blog to find this post.

  6. AlanMuller
    May 10th, 2009 at 21:20 | #6

    Thanks, Bill.
    Sounds as if the enviro side was outsmarted using very standard, even obvious, tactics….
    I feel strongly about this because in my (limited) experience, even with state supervision, site cleanups are rarely more than superficial. With the developers’ own people in charge, it can only get worse.
    It would be interesting to see some sort of really independent survey of closed-out brownfields–how many were addressed in compliance with regs, how many left substantial health and ecological hazards in place, how many adults and kids are living in potentially-dangerous places and haven’t been notified in any way……then maybe there would be some rational basis for policy changes.
    Seems to me that making live easier and cheaper for developers should be about the last priority in this matter.

  7. unprovincial
    May 11th, 2009 at 01:21 | #7

    Alan: Develpment ought to take a backseat to public health issues but this is NJ. Those promoting the LSP bill actually had the gall to say the LSP bill would stimulate the economy. So we are supposed to believe that NJ needs even more development. More shops and houses. More people and more overcrowded schools. Nevermind that all these people have no jobs……….environmentalists get blamed for that too. It’s our fault industry has left NJ! Instead of seeing the obvious pattern here………..industry utilizes an area and then moves on to another, in this case the South, West, Mexico and other sources of cheap labor, DEP and environmental regulation are responsible for industry leaving NJ, for the current economic crisis in NJ, and for any environmental fiascos and scandals, such as Encap. It’s enough to make anyone that gives a damn at DEP to admit defeat and leave!

  8. nohesitation
    May 11th, 2009 at 16:45 | #8

    This ordeal has been like passing a kidney stone.
    In June 2005, I formed NJ PEER and issued a press release stating that I would focus on the NJDEP cleanup program. Until then, almost all the environmentalists who worked on toxic sites were locally based (e.g. Edison Wetlands Association and Jersey City’s ICO). The state Trenton based groups had neglected the DEP site remediation program for years.
    Given incredible luck and great progress (actually, the mistakes were so glaring, they generated theri own press), the campaign to strenghtne the law adn DEP spine did well.
    It is not unusual in enviro advocacy circles for folks to warn against reopening legislation, lest the bad guys be given an opportunity to some mischief. SO I am not naive or unaware of these strategic considerations (and one colleague – TM – did in fact warn about and predict this).
    But never in my wildest imagination would I have thougt that the Legislature would actually WEAKEN and PRIVATIZE the law give these massive screwups.
    Privatizing DEP site remediation is like putting a bar on the deck of oil tankers and calling it a reform after a major oil spill resulting from a drunk Captain (logic and justification: at least if the drinking is legal, we’ll know how much he drinks before sailing the ship, which should provide an incentive to moderate his drinking!)

  9. 14yrbumpkin
    May 12th, 2009 at 02:19 | #9

    Good analogy Bill. It makes me gag that they are calling this the Site Remediation Reform Act. But you left out the fact that the person selling the drinks on the deck is Irene Kropp, Assistant Commissioner of Site Remediation. She has been pushing this idea since the “stakeholders” meetings and is no doubt due her reward at some point. At a staff meeting last week, she actually said she wasn’t sure she would still be at DEP in a year. I don’t think she was referring to Corzine losing the election either.

  10. nohesitation
    May 12th, 2009 at 08:19 | #10

    thanks bumpkin – agree Kropp has been a major source of the problem, but she really is just following orders.
    Check out today’s Bergen Record story on Berry’s Creek. Note the LAST paragraph in the story mentions the EPA Inspector General’s Report.
    That Report destroyed DEP’s excuse about lack of resources causing the backlogs and delays. Said there was no evidence provided by DEP to support this claim.
    THis was the centeral claim that justified the privatization of th entire state program adn a week later, that finding is BURIED in a last paragrapph of a story!
    Talking about journalism failing to provide the context for a story and burying the lede! I may post on that topic later today or tomorrow.e

  11. 14yrbumpkin
    May 13th, 2009 at 00:42 | #11

    And “following orders” has been the excuse for a lot of atrocities, hasn’t it? One thing that is never allowed at DEP is to go outside the “chain of command” by approaching someone with an issue without going from one supervisor to another. In this way, the blame gets filtered so in the end, no one can say who is at fault. Just look at Encap for an example. And it’s a long command chain, made up of mealy-mouthed supervisors selected for their disappearing spines. They all belong to the Invertebrates Anonymous 12-step Program that provides group support for walking upright, learning to balance their head without a spine and how to sit up straight without leaning off to the side. Meetings held daily.

  12. nohesitation
    May 13th, 2009 at 08:30 | #12

    14yrbumpkin – you are so right. DEP is dysfunctional.
    I spent 13 years there – from a low level to the Commissioner’s Office – and agree with you completely.

  1. December 11th, 2009 at 16:00 | #1
  2. January 3rd, 2010 at 13:55 | #2
  3. December 22nd, 2010 at 10:36 | #3
  4. December 30th, 2010 at 11:40 | #4
  5. September 14th, 2011 at 10:44 | #5
  6. November 22nd, 2011 at 11:42 | #6
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