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EPA Proposes To Consider “Vapor Intrusion” In Superfund Listing Decisions

Once again, NJ is in the national spotlight on Superfund

Everyone knows that NJ has the most Superfund sites of any state in the country and that NJ Congressman Jim Florio was the prime sponsor of the federal Superfund law.

But not many NJ residents who are at risk in their own homes know much of anything about “vapor intrusion” coming from hundreds of NJ toxic sites.

So, once again, NJ is in the national spotlight and at the forefront of the Superfund toxic site cleanup program.

Today, after years of study, the US EPA proposed a new regulation to consider the risks to human health from toxic “vapor intrusion” in listing sites for the Superfund “National Priorities List” (NPL):

SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing to add a subsurface intrusion (SsI) component to the Hazard Ranking System (HRS) which is the principal mechanism that EPA uses to evaluate sites for placement on the National Priorities List (NPL). The subsurface intrusion component (this addition) would expand the number of available options for EPA and state and tribal organizations performing work on behalf of EPA to evaluate potential threats to public health from releases of hazardous substances, pollutants, or contaminants. This addition will allow an HRS evaluation to directly consider human exposure to hazardous substances, pollutants, or contaminants that enter regularly occupied structures through subsurface intrusion in assessing a site’s relative risk, and thus, enable subsurface intrusion contamination to be evaluated for placement of sites on the NPL. The agency is not considering changes to the remainder of the HRS except for minor updates reflecting changes in terminology.

For the entire notice, see
https://semspub.epa.gov/work/11/189617.pdf

NJ’s fingerprints are all over the EPA proposal.

The EPA proposal was originally advanced by former NJ DEP Commissioner and former EPA Administrator Lisa Jackson five years ago, way back in 2011 (See January 31, 2011 Federal Register for that EPA proposal. I wrote about that at the time, see:

• EPA Considers Adding Vapor Intrusion as a Risk Factor in Superfund Listing

NJ activists from Pompton Lakes, were instrumental in its development.

Hundreds of residents were poisoned by vapor intrusion into their homes from the Dupont site – they played a significant role in EPA’s consideration of the vapor intrusion issue.

Pompton Lakes activists from the Citizens for a Clean Pompton Lakes (CCPL) suffered and worked on the vapor intrusion issue for several years.

They testified at EPA hearings and provided a strong case for why these health risks must be considered and why they are currently poorly regulated by EPA under the Resource Conservation and Revcovery Act (RCRA) “Corrective Action” regulatory program.

The Dupont Pompton Lakes toxic site is one of the worst “vapor intrusion” sites in the country, where over 450 homes were poisoned and the NJ Department of Health found statistically significant health risks associated with chemicals from the Dupont site.

While EPA appears to be moving more aggressively in addressing vapor intrusion risks, in sharp contrast, the Christie DEP has rolled back protections and weakened vapor intrusion standards. See:

• Christie DEP Relaxes Toxic Vapor Intrusion Standards

We congratulate the activists at CCPL and urge EPA to adopt this proposal as quickly as possible.

But even if adopted, it’s benefits are washed out by EPA policy to defer to a State Governor and seek their concurrence before listing any site on the Supefund NPL.

Christie would never take on the Dupont’s of the world.

Hundreds of Miles of Category One Stream Buffers In The Breach

Will Legislature Step Up To A Constitutional Challenge of Gov. Christie?

Legislative Veto Far More Effective Than Litigation in Blocking Regulatory Rollbacks

Back on January 12, 2016, the final day of the 2014 – 15 legislative session, the Assembly followed the Senate and both Houses moved to veto the Christie DEP’s proposed “overhaul” of flood hazard, coastal management, and storm water regulations, see:

• Legislature Invokes Constitutional Power, Moves To Veto Christie DEP Flood Hazard Rules

That move invoked the Constitution and triggered a requirement that DEP reply to the Legislature within 30 days – a deadline which tolled last week. The Constitutional procedure is set forth:

The agency shall have 30 days to amend or withdraw the existing or proposed rule or regulation.  If the agency does not amend or withdraw the existing or proposed rule or regulation, the Legislature may invalidate that rule or regulation, in whole or in part, or may prohibit that proposed rule or regulation, in whole or in part, from taking effect by a vote of a majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation or prohibition, as the case may be, of the rule or regulation.  

Thus far, we have not heard a public reply to DEP’s apparent finger in the eye by Legislative leaders who sponsored the veto Resolution (Senators Bob Smith and Ray Lesniak and Assemblypersons Grace Spencer and John McKeon).

It is very important that the Legislature follow through with invalidating these DEP rules and force DEP back to the drawing boards.

To do that, we need concurrent Resolutions to be introduced and passed by both Houses.

We urge our readers and intrepid journalists to pressure legislative leaders to assure that they follow through on this Constitutional challenge.

There is no need to wait for DEP to adopt the rules in question, the 30 day deadline has passed.

The time for the Legislature to act is now.

More broadly, we have called for the Legislature to use its oversight powers to hold the Christie DEP accountable for regulatory rollbacks and failure to enforce NJ’s strict environmental laws, see:

• The Legislature’s Time Is Better Spent Conducting Oversight Than Passing Environmental Bills For Christie’s Veto Pen

The Legislative veto power is an additional weapon in the Legislative arsenal.

Legislative oversight and veto are much more democratic, efficient, and reliable means to strike down Christie DEP regulations than the suite of lawsuits filed by environmental groups. 

As longtime environmental lawyer Bill Potter correctly notes:

“With its massive rewriting of coastal-zone policies covering nearly 1,000 pages, the DEP has attempted to do through regulation what it cannot accomplish through legislation — namely, to open up the coastal area to more at-risk development where there should be less,’’ said Bill Potter, the lead attorney for the plaintiffs in the case. (Disclosure: Potter is an occasional columnist for NJ Spotlight.)

For that same reason, i.e. end run around the legislature, those coastal rules also are “inconsistent with legilative intent” and should be vetoed, just like the flood hazard rules were.

For the argument for a legislative veto, see my prior posts, including:

• Christie DEP Adopts Climate Denying Coastal Rule
• Gov. Christie’s Climate Denying Coastal Management Rule Must Be Blocked By The Legislature

Environmentalists and the people who care need to bring pressure to bear on legislators and not rely on the courts to protect NJ’s public health and environment.

Illegal Off Road Vehicles Are Wantonly Destroying Incredible Ecosystems

Christie DEP Bungling Triggers Backlash and Full Retreat on Road Restrictions

Pinelands Commission Must Act To Close Roads & Protect What’s Left From Rampant Irreversible Abuse

I’ve not been a big Pinelands explorer and have little field knowledge of the place. So, as I heard the debate emerge on the DEP’s “Motorized Access Plan”, I was not aware of what was going on and had been going on for a long time.

That changed recently when I heard Emile Devito testify to the Commission that he had documented incredible damage and that more than 30% of meadows he sampled had been destroyed by “the mudders”. Fred Akers had described the Commission’s regulatory powers to designate roads in the CMP that are not suitable and should be closed, a power that had been ignored by both the DEP and the Pinelands Commission (NJAC 7:50-6.143(a)3.):

The Commission shall from time to time designate areas which are inappropriate for use of motor vehicles. Such designation shall be based upon the following considerations and upon consultation with the New Jersey Department of Environmental Protection and other interested persons: (hit link to read criteria):

So, when I got home I decided to look into the issue – for good info see PPA ORV webpage and “Pine Barrens Under Siege” website.

A closer reading of the CMP regulations revealed that not only had the Pinelands Commission failed to use its power to designate areas (not just roads and not just in Wharton State Forest, but throughout the Pinelands) which are inappropriate for use of motor vehicles, but that the CMP flat out prohibits motorized vehicles on public land for recreational purposes, unless those lands were expressly formally designated by State or local governments prior to August 8, 1980:

No motor vehicle other than fire, police or emergency vehicles or those vehicles used for the administration or maintenance of any public land shall be operated upon publicly owned land within the Pinelands. Other motor vehicles may operate on public lands for recreational purposes on public highways and areas on land designated prior to August 8, 1980 for such use by state and local governmental entities until designated as inappropriate for such use under (a)3 below. (note: (a)3 is above)

Holy smokes, roads and lands were presumptively closed. And the expectation was that the Pinelands Commission would eliminate even those roads and lands, revoking some of those areas/roads that were designated! (i.e. vehicles “may operate” … “until designated as inappropriate“)

The debate had been completely mis-framed: the burden was on the off road vehicle recreation community to prove that roads and lands had been designated prior to 1980, not just used for recreational purposes! The Commission was expected to designate inappropriate roads and areas!

Subsequently, at the next Commission meeting, DEP Assistant Commissioner Boornazian surprisingly appeared before the Pinelands Commission to explain what he called DEP’s “missteps” and poor communications and outreach efforts on the Motorized Access Plan (MAP).

Not surprisingly, when I looked into DEP’s MAP initiative, I noticed that DEP announced the initiative as an edict and virtually a done deal via an August 4, 2015 press release:

The Park Service expects to begin implementing the plan – the first of its kind in the state – by late summer.

That just shows a stunning incompetence – Commissioner “Customer Service” Martin fails to understand that DEP is not a corporation and he is not a CEO.

Not surprisingly, after strong pushback by the off road recreational community, DEP established the same “by invitation only” Stakeholder process – which excludes lots of critics.

Those fatal flaws were compounded by the fact that DEP held Stakeholder meetings after the fact, and with individual groups one at a time – which fosters mistrust and suspicion – instead of bringing each group together in one public meeting so that they can understand each others’ concerns and begin to develop baseline respect, in the spirit of democratic dialogue.

That public dialogue at a public hearing did not happen until November, well after bad blood had coagulated, trust was destroyed and battle lines drawn.

*[Note: Trust was destroyed with the help of DEP and PPA staffers who, according to emails provide to me, were discussing the MAP initiative in June, well prior to its public announcement.]

The off road recreation community showed up in numbers and spoke angrily at that Pinelands Commission meeting – apparently they were tipped off to Boornazian’s unannounced appearance, which was not on the meeting agenda, by the DEP.

Listening to that debate and seeing how the DEP had surrendered and backed away from MAP – which made the problem even worse by essentially eliminating any road closures – made it obvious, after the pipeline debacles and soccer field compromise, that yet another attack on basic Pinelands regulatory protections was underway. Another well organized and expanding political and destructive threat had emerged.

That led to discussions with Jason Howell of PPA, who offered to take me on a tour of some of the 150+ damaged sites he’s inventoried. Some of the destruction I saw below.

Here is what Emile DeVito sought to protect – incredible pristine meadows, an iconic landscape of the Pines:

Here’s what the “mudders” have done to those meadows, at a place called “Quarter Mile” – natural vegetation, habitat, and biota totally destroyed:

Here are more damaged sites – erosion to roads, forcing “go arounds” into the woods –

Some roads that DEP has allowed to remain open are flowing streams –

Unique geological features are being destroyed –

River banks and riparian vegetation and habitat wiped out –

Ponds and wetlands obliterated of all life and turned into lifeless mud holes –

Toxic pollutants introduced into pristine waters – oil sheen:

Forests converted to mudholes –

Here’s what it should look like – Beaver Pond

Days Of Revolt

Chris Hedges’ “Days of Revolt” series’ latest episode interviews a Salinas California Councilman about the exploitation of farmworkers and homelessness, harkening back to the literature of John Steinbeck- watch the episode:

• Days of Revolt: Company Town

I visited Salinas in the summer of 2014, and was shocked by the contrast between the farmworkers, the roadside produce stands, and the gentrifying downtown of the City of Salinas, home of author John Steinbeck, probably best know for his depression era classic “The Grapes of Wrath”.

Visitors to the Steinbeck museum were largely wealthy white folks who had no interaction or relationship at all to the community or the agricultural workforce, but were comfortable in the upscale WiFi equipped downtown cafe’s.

I sensed little or no connection by the literary tourists between Steinbeck’s literature and the current exploitation on the ground and in the fields of Salinas, his hometown.

Here are some photos I took of the place that can accompany the Days of Revolt interview:

Use Subpoena Power and Hold Oversight To Expose Failures

After six years of Christie’s systematic rollback, it’s time to account

Don’t wait for a Flint-like disaster to occur

[Update #3 – the artful dodge continues, but they’re warming up!

• STATE’S POOR URBAN CHILDREN MOST AT RISK FROM LEAD IN WATER, ADVOCATES TESTIFY

[Update #2 – 2/22/16 – another good step, but lots more low hanging fruit:

• Congressional Democrats join New Jersey’s debate on lead

[Update: 2/12/16 – This was not my recommended priority target, but nonetheless a good first step!

• Christie administration not answering questions on lack of federal aid for flood protection

~~~ end update]

The first two hearings of the new Legislative session by the Senate Environment Committee – largely repeated by the Assembly Environment Committee – focused on a slew of bills that Gov. Christie has vetoed; e.g. the TMDL bill for Barnegat Bay; allocation of open space funds, promotion of offshore wind, et al.

The formation of a coastal public access Stakeholder group to develop new legislation is also likely to be blocked by the Gov. if its recommendations stray beyond his flawed DEP regulations the Legislature just unwittingly unconditionally authorized.

I can understand the partisan political motivation behind that – it makes Democrats look pro-environment and the Gov. and Republicans look bad –  but it is a total waste of time.

• The Democrats lack the votes to over-ride the Gov.’s veto –
• There is no evidence that the Republicans will break loyalty to Christie –
• There is no reasonable expectation that Christie will reverse policy course –
• It gives DEP and BPU free hands to continue the status quo and puts no pressure on DEP’s actual implementation and enforcement of environmental laws
• environmental groups are limited to sound bite media tactics, not policy advocacy
• there is no opportunity for actual democratic engagement in policy

Passage of good environmental bills this session does not lay the political or policy groundwork for the next Administration or Legislature, if only because it fails to garner sufficient public attention and media coverage to generate public support and momentum towards consensus on reforms.

And there is a big negative downside risk that these tactics could backfire, as the press and public become even more cynical about partisan motivations and lose more confidence in the effectiveness of the Legislature to actually govern.

Instead of this legislative strategy and waste of time, the Legislature could use its oversight powers far more effectively.

If legislators rolled up their sleeves, focused on the substance, and called DEP to account for the Christie policy in a series of oversight hearings, a number of very good things would emerge;

• flaws in Christie policy would be exposed
• people and the press could learn that policy has consequences for people’s lives
• DEP would be held accountable and be less brazen in their rollbacks
• a focused and substantive policy agenda would begin to emerge for the next Administration
• the Legislature’s credibility would be enhanced
• environmental groups would be provided a platform for advocacy

I suggest a series of oversight hearings conducted between now and June passage of the budget on the following policy topics:

1. Status of implementation of the Global Warming Response Act in light of recent science

2. BPU Energy Master Plan and Renewable Energy and Effects of Deregulation

3. Adapting to climate change

4. Status of Clean Water Act programs

5. Status of Clean Air Act programs

6. Status of DEP Enforcement

7. The future of regional planning in the Pinelands and Highlands

8. Urban NJ and environmental justice

9. Status of drinking water programs

10 Status of hazardous waste, RTK, TCPA, and toxic site cleanup

The Legislature should wield subpoenaed power to compel the Christie Administration’s participation.

Those kind of hearings could begin to expose policy decisions – like in Flint Michigan – that put the future of the planet and people’s health at risk.

People and the media could get a better understanding of how policy and regulatory decisions in Trenton impact their lives – and directly participate in the policy deliberations!