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Toxic Health Threats Not Limited To Garfield

As we suspected from the outset, EPA now admits that the Garfield toxic chromium problems are far worse than state and federal officials thought and told the public.

[Watch last night’s WPIX TV News Report here:  NJ Town In Fear Over 30 Year Old Toxic Mess].

Vindicating our concerns and criticism of 27 years of failed NJ DEP oversight, the Sunday Bergen Record reported:

Tests by the U.S. Environmental Protection Agency offer strong evidence that contamination from the E.C. Electroplating plant on Clark Street is still flowing into the groundwater — and that pollution is spreading well beyond the boundaries of a Superfund site that already encompasses 600 homes and businesses. 

Record reporter Scott Fallon is closely covering the Garfield issue. While I initially praised Fallon’s work (see: DEP Toxic Mismanagement Finally Called Out by Press), I later harshly criticized Fallon for letting DEP regulators off the hook for their grossly negligent mismanagement of the site (see: Swallowing the Bullshit Wholelsale).

So today I must compliment him on his aggressive reporting and effort to hold DEP accountable. Fallon wrote:

The EPA’s effort is an attempt to rectify one of the state Department of Environmental Protection’s worst failures. Almost 3 tons of chromium spilled from an outdoor tank at the plant in 1983. Despite overwhelming evidence that the toxic metal had spread into the surrounding neighborhood, the DEP suspended the cleanup less than two years later after only 30 percent was recovered.

At the time, the DEP said there was no threat to public health. Oversight by the DEP was so poor that federal officials now believe there may have been leaks at the plant for years. The chromium had been used to coat machine parts to make them last longer. Today, the neighborhood is North Jersey’s newest Superfund site.

So, let’s engage in a little “I told you so”, rehashing our well founded concerns about: 1) the expanding scope of the contamination, 2) the increasing number of homes impacted, 3) the extraordinarily level of cancer risk posed to the neighborhood, and 4) the NJ DEP’s abysmal and corrupt mismanagement of the cleanup.

Back in October 2010, we wrote about the cancer risk assessment by the Agency for Toxic Substances and Disease Registry.

ATSDR found an extraordinarily high cancer risk of 3 in 10, due to chromium contamination in residential basements (see: Garfield Cancer Risk From Chromium in Basements The Highest in the US.

ATSDR’s October 2010 Report found an“immediate and significant risk to human health” – far greater risks than EPA initially estimated 5 months earlier, in May (see our report on the EPA’s May 2010 public meeting: Cancer Risks in Garfield Homes More Than 2,000 Times Allowable Risk

Based on the initial EPA public meeting in May 2010, I wrote:

It is unclear at this time exactly how many homes are poisoned, but today’s Bergen Record reported only 16 (a number I am sure is far too low). See the Record story: Carcinogen found in 16 Garfield homes …

At tonite’s hearing, when I pressed EPA scientists to quantify what a “very harmful” cancer risk is, they indicated that the risk in sampled homes was 2 in 1,000, or 2,000 TIMES higher than the acceptable risk under NJ laws, which is 1 in a million.

My over-all take – based only on the power point presentation tonight – was that the EPA and DHSS again downplayed the community health risks, and thus mislead the community. Both EPA and DHSS refused to admit that mistakes were made or assign accountability for mistakes made. And they both again failed to acknowledge the mistakes that have been made at this site by the NJ DEP, who has known about the problems since 1983, 27 years!

DEP’s mismanagement of chromium is not limited to the Garfield site.

Way back in 2005, we exposed DEP coverup of chromium risks and retaliation against a DEP whistleblower. We called for a federal probe: NEW JERSEY FACING CHROMIUM EMERGENCY – 1 IN 10 CANCER RISKS — State Scientist Reveals DEP Cover-Up; Demand for Federal Intervention

In 2006, we wrote about scientific fraud and lax DEP oversight: LEGISLATURE TO PROBE TOXIC COLLAPSE IN NEW JERSEY — Series of Cleanup Fiascoes Have Communities Feeling Betrayed and Vulnerable

In 2008, we wrote about troubling new science:  CHROMIUM POSES HIGHER LUNG CANCER RISK IN NEW JERSEY CITIES — State Ignored Staff Warnings of Continued Exposure Even in “Remediated” Sites

Well, with this ugly history in mind, as we suspected, the contamination in Garfield is spreading and far worse than initially presented to the public.

There are more homes and people that are at risk from the spreading contamination.

The risk levels are far higher than DEP covered up and EPA initially estimated.

The consequences of DEP’s mismanagement are becoming even more evident.

We told you so.

And these kind of serious problems are not limited to Garfield – as we’ve written, there are hundreds or possibly thousands of homes impacted by similar subsurface migration at hundreds of sites across the state (see below DEP maps).

We’ve also written that the DEP is not warning people of these risks –

Are you living in a DEP mapped “Toxic Threat Radius”?

Problems will only get worse as a result of the privatization of NJ’s toxic site cleanup program (see:  Mercenaries Now Fully In Charge of Toxic Site Cleanup in New Jersey

So, when will the media get around to reporting on those problems? LOOK!

DEP Maps of Toxic Threat Radius are not made public. Why?

Forest Burn Bill Will Not Make Breathing Easier

I was just looking through some old Works Progress Administration (WPA) posters and came across the above, which reminded me of the proposed forest burn bill (see other cool WPA posters here – my favorite is below).

We wrote about the burn issue weeks ago when “controlled burns” were being considered as part of the proposed forest “stewardship” bill .

We are disappointed to report that a stand alone forest burn bill (S368) was released last Thursday by the Senate Environment Committee (see S368 statement). We are not comforted by this:

Specifically, the bill would direct the NJFFS to develop and administer a program for the certification of prescribed burn managers. The program would include at least the following subjects: safety; legal aspects of prescribed burning; fire behavior; prescribed burning tactics; smoke management; environmental effects; and preparation of prescribed burn plans.

I missed that portion of the Senate hearing, because I was testifying in the Assembly against the DEP administrative bills (see: New Round of Red Tape Bills Moved in Trenton Today).

The burn bill was released and referred to the Senate Budget and Appropriations Committee, so folks will get another shot at the apple to speak out.

There is no Assembly version introduced thus far, but last session, the Assembly bill sponsors were from Burlington County – so I assume the impetus is Pinelands forest management, which suggests that it might not be difficult to limit the scope of the burn program to the Pinelands and exempt north jersey hardwood forests.

Anyway, it’s probably not so good an idea to be burning NJ’s last remaining hardwood forested lands – see: Forest Bill Would Jeopardize Clean Air and Public Health

[Update: 9/25/13– I had to update this post in light of this quote from a NJ Spotlight profile of John Weingart IS THERE A SECRET TO SURVIVING TWO DECADES IN PUBLIC SERVICE?

“Never in my 19 years at DEP and four more at the siting commission, never was there a time I had to take a position I disagreed with.”

Well, there it is. It makes Robin’s and Arendt’ point, in spades, no?  – end update]

My strange interlude – particularly my experience with institutions and large bureaucracies – tells me that the dynamics of careerism are extremely relevant to environmental affairs – particularly under a Governor hell bent on rolling back environmental regulations.  Take a read and think about it.

This is an excerpt from a superb book review of Hannah Arendt’s work by Cory Robin (read the whole thing here: Dragon Slayers)

(Source: AP - Sister Sheila Galligan, a professor at Immaculata University, demonstrates with others against the Obama administration mandate that employers provide workers birth control coverage, at Independence Mall, Friday, June 8, 2012, in Philadelphia.

“When fascism comes to America, it will be wrapped in the flag and carrying the cross.” 

~~~ Sinclair Lewis

While all the ENGO lobbying and media focus was on the fracking wastewater ban bill in the Senate (S-253), flying under the radar, two important but highly technical bills that would implement recommendations of Governor Christie’s Red Tape Commission were released by the Assembly Regulatory Oversight Committee.

The first, A 1521 (Burzichelli, D- Oil & Chemicals), under the guise of minor administrative reforms across state government, would make a significant structural change to the current regulatory and enforcement framework, and thereby weaken DEP’s powers to implement and enforce all environmental laws.

While the bill would apply to most State agencies, there is little doubt that DEP is the target of the legislation.

Under current law, regulated entities can challenge DEP permits and enforcement actions administratively through the Office of Administrative Law (OAL).  Upon filing an appeal,  an Administrative Law Judge (ALJ) hears the “contested case”, takes testimony, reviews briefs and makes a decision. However, the DEP Commissioner is the final decision-maker. The Commissioner can accept, reject, or modify the ALJ’s opinion.

Control over the final administrative decision by the DEP Commissioner is important, because ALJ’s often lack the scientific and technical expertise to correctly interpret the environmental laws and regulations involved in specific DEP permit or enforcement decisions. Those decisions are as much scientific and technical as they are legal decisions.

In contrast, A1521 would make the ALJ the final decision-maker, stripping the DEP Commissioner of important powers.

I testified and cited 2 recent ALJ opinions as to why the bill would have unintended consequences, invite even more litigation, and threaten DEP permit and enforcement powers.

Both ALJ decisions were wrong. The first was reversed by former DEP Commissioner Lisa Jackson. The other – on the same issue – was approved by current DEP Commissioner Martin (more to follow on those ALJ opinions, but if you are interested, you can listen in here. Mike Pisauro of NJEL also testified and raised concerns about the ALJ final decision provision).

Indicators that reveal the rollback policy agenda and interests backing this bill are:

• the bill grows out of Gov. Christie’s Red Tape Commission, whose objective is to eliminate “job killing Red Tape”, provide “regulatory relief”, and promote economic development;
• the bill was supported by the NJ Petroleum Council, NJ Chemistry Council, NJ Chamber of Commerce, and NJ Business and Industry Association;
• NJ builders and developers attorney Michael Hluchan supported the bill, because he said his clients get “screwed” by DEP and they oppose giving DEP head another bite at the apple; and
• the Senate sponsor is ALEC Chairman Senator Oroho (there is no Senate version yet introduced this session, but last year’s Senate version  sponsored by  Oroho).

It sure looks like the polluters and developers think they can get better deals at the OAL than the DEP – thus, the bill is sure to prompt more challenges to DEP permits and enforcement actions. The result: more red tape, more litigation, more delay, less environmental protection.

The second bill, A 1524  is less significant. It would revise the Administrative Procedures Act with respect to resolving conflicts or inconsistencies between the regulations of various state agencies.

The bill tracks one ground for granting a waiver in the DEP waiver rule – conflicting rules.

The bill goes even further to require an elaborate process for rules that conflict or are inconsistent.

Those vague standards and the elaborate conflict resolution approach of the bill would create even more gridlock in the rule making process, which is already a resource intensive and cumbersome exercise.

[Note: here’s an example: when I worked on the C1 stream buffer rules, Department of Agriculture staff opposed those efforts and insisted that in certain soils and slopes, that the requirement to maintain a 300 foot buffer free of storm water outfalls would create erosive conditions that conflicted with soil erosion and sediment control regulations. DEP disagreed, and said that in the event of that conflict, that the project could be scaled back, the site plan redesigned, or the storm water management scheme  reengineered. We won that debate. Under the bill, the C1 buffer rules would not have been proposed and adopted.]

The bill would be used as another roadblock to adoption of much needed DEP regulations and provide a basis to challenge those rules. The resolution of any conflicts and inconsistencies would like result in sacrificing environmental protections to rules that promote development or reduce burdens on polluters.

The bill also encroaches inappropriately on the Executive branch’s prerogatives, and thus represents a legislative incursion that may rise to a violation of separation of powers.

Both bills were approved by unanimous votes of the Committee and are now before the full Assembly.