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Garfield Chromium Case Another Vindication of DEP Whistleblower

Serious Flaws In DEP Science, Regulations, and Cleanup Approach Remain Uncorrected

And then, when the nature of this corrupt game becomes absolutely clear, a moral and ethical crisis is born, forcing that DEP employee to decide whether to shut up and go along or to follow their conscience and somehow resist or speak out.  ~~~ Bill Wolfe

[Update below]

Scott Fallon at the Bergen Record wrote another story today about the Garfield chromium site recently cleaned up under the federal Superfund program, see: Chromium removal sets stage for next phase of Garfield cleanup 

Unfortunately, Fallon again failed to recognize the huge significance of what has transpired at the Garfield site – ironically, that significance IS suggested, but in just one word in the headline for the story, i.e “removal”.

The chromium was removed. Removed. Excavated. Taken away. A “permanent remedy”.

At how many sites does that happen? What percentage of sites have the source of contamination completely excavated?

Fallon also fails to understand WHY the removal occurred, or to link the removal issue to the underlying causes in DEP science, regulations, and entire approach to toxic site cleanups, an approach that has been derided as “pave and wave” (technically known as “engineering controls and institutional controls” or “cap and deed restrict””).

Now that is a BIG STORY. A story that DEP and their “customers” don’t want told.

Instead of telling that BIG story, it is always amazing to me how news media report stories as somehow unique to one location – one site, one development, one permit, one cleanup.

They never seem to understand the context: that DEP is a regulatory agency, so that what happens at one site is driven by DEP regulations that apply statewide to thousands of sites in hundreds of communities that impact the lives of millions of people.

Those DEP regulations reflect not only science and law, but HUGE discretionary policy choices by DEP managers.

Most environmental groups contribute to this problem as well, both because they too work on specific sites or specific permits, and because they rarely – if ever – work on the policy and regulatory issues the determine the outcomes of their battles.

[Note – the recent petition to revoke the municipal storm water permit is an important exception to this rule.]

The Foundations who fund the work of environmental groups are even worse – they simply do not fund policy and regulatory work.

As a result, the underlying regulations never get examined, except by the lawyers and lobbyists for the polluters and developers.

Those private industry special interests invest tremendous resources in working the inside track at DEP –

For an egregious example of that subversion of the public interest, just look at the list of “by invitation only” “Stakeholders” that have seized control of DEP from the inside (lists of 100% industry representative “Stakeholder” groups are here).

Which brings me to the main point of this post – which is announced in the headline.

Sometimes – all too rarely – a conscientious DEP employee comes to understand the essential corruption of this regulatory game.

That the game is rigged –

That the rules are strongly shaped by and written to benefit the polluters’ private interests, not the public interest.

That politics and economics play as much or more of a role in promulgating and enforcing regulations than science, law, or the protection of public health and the environment.

And then, when the nature of this corrupt game becomes absolutely clear, a moral and ethical crisis is born, forcing that DEP employee to decide whether to shut up and go along or to follow their conscience and somehow resist or speak out.

Which takes me to the remarkable case of the DEP chromium whistleblower, Zoe Kelman, who has been vindicated in Garfield and numerous other cases since she blew the whistle.

Ms. Kelman was a trained chemical engineer and longtime DEP employee in the toxic site cleanup program.

In that capacity, Kelman served on DEP’s Chromium Workgroup, and she quickly became aware of major flaws in DEP science, regulation, and policy that jeopardized public health.

Kelman didn’t sit back and go along – as a member of the DEP Chromium Workgroup, she tried to make changes internally. When her recommendations were ignored, she wrote a dissenting Report to DEP Commissioner Bradley Campbell (read complete Report here).

Kelman concluded and warned (from Executive Summary):

Thus, I am convinced that based on the evidence presented in my report, New Jersey’s current soil criteria and its remedial approach for chromium are not protective of human health. I file this report to document my objections because I feel strongly that the “errors and omissions” in the Chromium Workgroup Report expose the public to unnecessary health risks. I urge Commissioner Campbell to reject the recommendations of the NJ Chromium Workgroup and to either continue the moratorium on the issuance of No Further Action letters until protective criteria are developed or go back to the peer-reviewed soil standard of 75 ppm total chromium as an interim chromium cleanup criteria. The weight of scientific evidence supports the protective cleanup criteria of 75 ppm total chromium5 as clearly in 2005 as it did in 1991, when it was adopted.

Regarding application of the soil criteria, the weight of evidence very strongly supports a moratorium on the capping and use of deed restrictions at COPR sites. Thus, NJDEP should adopt a groundwater impact standard for chromium. I recommend adopting EPA Region VI criteria of 2.1 ppm.

When her dissenting Report was ignored, Kelman fought back.

With her support, we disclosed Kelman’s dissenting Report in a Nov. 10, 2005 press release, which we conducted on the State House steps, see:  NEW JERSEY FACING CHROMIUM EMERGENCY – 1 IN 10 CANCER RISKS – State Scientist Reveals DEP Cover-Up; Demand for Federal Intervention

Zoe Kelman, a New Jersey Department of Environmental Protection chemical engineer and member of the state’s official Chromium Workgroup has filed a report with the DEP Commissioner showing that harmful chromium is migrating off completed (“remediated”) sites and likely coming into direct contact with residents and workers. Ms. Kelman says the Workgroup failed to consider the work of scientific experts or to examine whether state chromium cleanup standards and “caps” are adequately protective.

We also petitioned the US EPA Administrator to intervene (see this for EPA petition).

It saddens me deeply to say that Kelman’s recommendations and warnings were ignored, as was PEER’s petition. Ignored by EPA and DEP regulators, the media, and legislators.

Since then, over the last 8+ years, Kelman’s recommendations and warnings have been vindicated multiple times by scientific researchers and regulatory developments at chromium contaminated sites.

Most recently, at the Garfield EC Electroplating site, where DEP scientists knew a serious public health risk existed for many years but their warnings were ignored by DEP managers.

Kelman’s Report highlighted the scientific and regulatory flaws that the Garfield site exposed – here are just some of the warnings that were ignored in Garfield:

“The 1998 criteria do not protect groundwater and surface water from chromium contamination. The leaching of chromium from soils into groundwater is a natural resource injury in and of itself. But it can also create a public health hazard; groundwater is a vector for the transport of hexavalent chromium and the contamination of additional soils and structures. Leachate evaporation at interfaces results in localized accumulations of highly enriched solid-phase hexavalent chromium on soil, building or other surfaces. The final report of the workgroup ignores the issue altogether; it proposes no soil standard to protect against leaching to groundwater.”

(see also Kelman’s findings on “capillary action”).

This is a scandal that has not be covered by news media – worse, the underlying flaws in the science, regulation, and policies Kelman exposed have not been fixed and the DEP managers who engaged in this negligence have not been held accountable.

Garfield in not alone.

Let’s hope that Kelman’s integrity and courage are not either.

[Update : 2/14/14 – Bob Speigel of Edison Wetlands Association sent this comment:

The report that Ms. Kelman wrote that exposed the scientific and regulatory flaws was a very brave and courageous act by a brilliant scientist who would not stand quietly by and allow the truth and good science to be buried amongst bureaucratic and regulatory incompetence.  It’s too bad that we don’t have ethical scientists and regulators like Ms. Kelman or Bill Wolfe running the New Jersey Department of Environmental Protection or United States Environmental Protection Agencies.  

President Obama promised as did the USEPA administrator Lisa Jackson that regulatory decisions will be based on good science and not ignorance like we have had in the past.  Unfortunately, nothing could be further from the truth as both the federal US EPA and state NJ DEP often ignore scientifically valid studies and data in favor of profits for chemical company executives.  

The 300,000 people in West Virginia who now have to live with poisoned drinking water are a solemn reminder that we cannot trust the chemical industry to self-regulate.

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