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A National Perspective on NJ Privatized Cleanup Program


Abandoned toxic waste drum - NJ's State Symbol?

Abandoned toxic waste drum – NJ’s State Symbol?

[Update: 6/24/11Clarification – According to a “draft” Reorg Chart, DEP will retain some cases under traditional and direct oversight. Curious, the “draft” is dated 6/14/11 – the date of the original post. Coincidence?  ~~~ end Update]

The Bergen Record story “Polluters rewriting rules for cleanup” and our musings have spurred quite a controversy, even well beyond NJ’s borders.

This story just ran in “Inside EPA” a beltway trade journal. Sorry, no link available, so I’ll reprint in full. DEP goes on the record flouting the Site Remediation Reform Act mandates to adopt a Risk Priority System (RPS) by May 7 2010 and to rely on the RPS to assure that all high risk cases remain under direct DEP oversight. Amazing.

States Moving To Privatize Cleanup Oversight But Concerns Remain

A growing number of states are handing some responsibility for oversight of remediation efforts at brownfields to private contractors, with at least five states already utilizing a semi-privatized or fully privatized system and at least one more considering the option.

But the approach remains controversial with environmentalists, who are raising concerns over New Jersey’s implementation of its licensed site remediation professionals (LSRP)s program. Activists charge that despite assurances that high-risk contaminated sites would remain under state oversight, New Jersey is moving ahead with an approach that could allow sites with vapor intrusion to be overseen by LSRPs.

Massachusetts, Connecticut and Ohio began using licensed oversight contractors in the 1990s, while Michigan and New Jersey started developing their programs more recently, a brownfields redevelopment source says. “I don’t know if you want to call that a trend or not, but it’s something that states that are having problems keeping up with their inventory of sites” should look at, the source says.

The source says the programs are designed to speed up the remediation of sites as well as deal with a backlog of potentially thousands of cleanups a state could be processing.

“The industry loves these programs,” the source says. “Everything about it is faster and more predictable and time is money for a developer. Projects that get stuck in the bureaucracy, it’s really a big obstruction for brownfields redevelopment.”

Of the states that have implemented the program, some, such as Ohio, have more privatized systems than others, the source says. “Ohio’s system is fully privatized in the sense that the [contractors] can do the site assessment, they can draft a cleanup plan, they can carry out the cleanup all independently of the state, and then they submit all the documentation to the state and request a liability release.”

But New Jersey’s push to move ahead with its LSRP program without a ranking system to assess which sites pose the highest risk is drawing the ire of environmentalists, who are urging the state legislature to block a proposed regulation they say would allow LSRPs to oversee cleanups even at vapor intrusion sites.

We were assured that [the New Jersey Department of Environmental Protection (DEP)] would retain oversight of highest risks, while [LSRP] assumed low risks,” Bill Wolfe, director of New Jersey Public Employees for Environmental Responsibility (PEER), said in a May 31 email to New Jersey Environment and Energy Committee Chairman Bob Smith. But DEP “never even tried to rank sites . . . so they have no technical basis to take ANY CASES under direct oversight. This means ALL cases are effectively [LSRP] cases.” And eliminating DEP’s case-by-case review power “means ALL vapor cases effectively become [LSRP] cases and NEVER DEP lead direct oversight cases.”

Wolfe asks for “legislative oversight” in his email.

An environmentalist source says PEER hopes that the legislature will scrap DEP’s May 2 proposed rules, although the source says that the oversight will likely be narrower in nature.

Wolfe will argue, the source says, that “the Legislature should veto the whole rule and force DEP to design the [LSRP] program based on the risks articulated in the [ranking system] as contemplated in the Site Remediation Reform Act [SRRA].”

DEP Press Officer Lawrence Hajna says that a ranking system, or a Remedial Priority Scoring (RPS) system, is being developed, but that it will not be the sole arbiter of whether a site remains under DEP oversight. The Site Remediation and Reform Act states that DEP “may undertake” direct oversight of sites if they are ranked among the highest priority sites.

But DEP will take into account how well sites are moving forward with remediation in assessing whether they belong under direct oversight or the LSRP program, Hajna says. “The DEP does not intend to automatically place sites that are in compliance and moving forward with the remediation into direct oversight, even if a site is in the greatest potential risk category. The DEP is more likely to place a lower potential risk site that is out of compliance and not moving forward with the remediation into direct oversight, as this site has a greater chance of impacting a receptor due to its inaction.”

In his letter to Smith, Wolfe states the ranking system should have been in place by May 2010, per the state law that created the LSRP program. Hajna says it will be complete by the end of the year.

Hajna also contends vapor intrusion sites will still be under DEP’s oversight, saying that “if the results of sampling indicate that there are vapor intrusion concerns emanating from a contaminated site, the DEP considers these either immediate environmental concern cases or vapor concern cases (depending on the contaminant levels detected). These sites are to remain directly under the oversight of DEP staff.”

Worrying the environmentalist source, however, is a provision of the proposed site remediation rules that eliminates a provision that the DEP consider whether groundwater contamination poses a vapor risk to receptors on a case-by-case basis, leaving that determination to the site’s responsible party.

But while activists are charging the proposed regulatory changes will weaken the intent of the SRRA, an industry source says the rules are still too onerous and will delay the pace of cleanups.

From the start, SRRA has been controversial, with environmentalists saying the law could hinder the state’s ability to pursue natural resource damages claims against violators, among other things.

To address some concerns, then-Gov. Jon Corzine (D) issued an executive order that required additional oversight from DEP on sites that had considerable groundwater contamination or those that were planned to be used for schools, recreational facilities or housing. But Wolfe argues in his e-mail that in addition to violating the legislative intent of SRRA, the proposed rules violate the terms of the executive order.

“The department was supposed to retain direct oversight of high risk cases — vapor intrusion is by definition a high risk case because you have off site release and direct human contact exposure. The department is going beyond the very weak SRRA law,” Wolfe writes.

The May 2 rule proposal is a readoption of interim rules, Hajna says. DEP hopes to adopt final rules in May 2012 to fully implement SRRA and the LSRP program.

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