NJ DEP Commissioner McCabe is Either Lying or Incompetent On DEP Powers To Regulate “Dirty Dirt”
If allowed to stand, these radical reinterpretations and narrowing of DEP’s regulatory authority would seriously undermine and effectively gut DEP’s powers to protect public health and environment – including addressing climate change.
Yesterday, the Senate heard proposed legislation to address illegal disposal of “dirty dirt” (see S1683).
No reports on that from media.
But, NJ Spotlight did report that Murphy administration DEP Commissioner McCabe issued a press statement criticizing the Trump EPA for inaction in adopting regulations – known as “MCL’s” – for the class of toxic chemicals known as “PFAS” (hit the links for the details I will discuss in a future post on MCL’s).
The McCabe DEP press release was issued the same day that McCabe was personally slammed in a Newark Star Ledger editorial and harshly criticized again in testimony later that morning in a Senate legislative hearing on illegal disposal of “dirty dirt” (see S1683). That DEP press release was a blatant diversion to cover up McCabe’s own serious failures.
The Star Ledger editorial blasted McCabe personally on her response to illegal disposal of dirty dirt:
After months of effort, Gottheimer got DEP commissioner Catherine McCabe to visit the site in December, but he found that they spent most of that time haggling over the legal definitions of “solid waste” and “de minimus.”
Construction waste is in the eye of the beholder, but the DEP believes its definition is inviolable. The agency monitors the site, yet it claims it has no probable cause to physically inspect the property or collect testing samples.
Besides, violations of soil controls are enforced on a county and municipal level, DEP points out.
McCabe can haggle with this, from NJ DEP recycling regulations:
7:26A-1.5 Burden of proof
(a) In an enforcement action, or on specific request of the Department, persons claiming that they qualify for any exclusion or exemption in this chapter or that they are not otherwise subject to the rules in this chapter shall demonstrate and appropriately document that they satisfy all terms of the law releasing them from the requirements of this chapter.
7:26A-1.7 Right of entry and inspection
(a) The New Jersey Department of Environmental Protection or an authorized representative acting pursuant to the County Environmental Health Act, N.J.S.A. 26:3A2-1 et seq., shall have the right to enter and inspect any building or other portion of a recycling center, recycling depot or any site at which an exempted activity is conducted pursuant to N.J.A.C. 7:26A-1.4(a), at any time in order to determine compliance with the provisions of all applicable laws or rules and regulations adopted pursuant thereto. This right to inspect includes, but is not limited to:
1. Sampling any materials on site;
2. Photographing any portion of the recycling center;
3. Investigating an actual or suspected source of pollution of the environment; and
4. Ascertaining compliance or non-compliance with the statutes, rules or regulations of the Department, including conditions of the recycling center approval issued by the Department.
We have been working on exposing the abuses and DEP regulatory failures on “dirty dirt” for over a decade – including while I worked at DEP on developing enforcement policy in the late 1980’s – see this post, where I outline DEP regulations and Guidance documents governing this set of issues:
As I said in a February 8, 2012 Bergen Record story on soil contamination that closed Votee Park in Teaneck:
“This stuff happens again and again and again, and nobody is connecting the underlying dots,” Wolfe said. “Are there laws in place to do this, and who is responsible for enforcing them? The answer is there are laws in place, but the government is completely asleep at the wheel. And the towns are left holding the bag.”
In 2006 testimony to a special legislative investigation on illegal disposal, we called for the Legislature and/or DEP to:
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Impose cradle-to-grave management requirements for contaminated soils and demolition waste
So, we must call out McCabe’s outrageous and totally unacceptable dissembling, diversions, falsehoods, and failures.
Because McCabe is a lawyer, her position regarding DEP’s jurisdiction and responsibility is so egregiously false and particularly troubling, so much so that she should be called to publicly testify before the Legislature to defend it.
DEP has broad authority and responsibility – repeatedly upheld by NJ Courts – under the NJ Spill Act, NJ Solid Waste Management Act, and NJ Water Pollution Control Act, to regulate both solid waste and recycling, from cradle to grave. DEP has lead authority. This is NOT a local issue. (See NJAC 7:26)
That authority includes DEP regulatory oversight of: the facilities and sites that generate the solid waste or recyclable material; the sampling, analytical chemistry, and regulatory classification of the material; the trucks that haul the material; and the places where the material is processed, treated, stored, recycled, or disposed of.
To address those DEP lies, I wrote the below letter to Chairman Smith:
Dear Chairman Smith:
I was deeply disturbed by the testimony during yesterday’s hearing on “dirty dirt”, particularly regarding statements about DEP’s jurisdiction, authority, and responsibility.
I have been involved in this set of issues for over 30 years, beginning with work as a DEP professional on developing a “waste flow” enforcement policy back in the late 1980’s and NJ’s recycling regulatory framework in the early 1990’s. I also met with Senator Greenstein during the 2006 illegal disposal scandals in her district, so have direct knowledge and experience to offer.
There is a pattern of radical reinterpretation and narrowing of DEP statutory powers and responsibility, including the recent episode at the Cumberland County landfill’s proposed disposal contract with the US Navy. When that story broke, DEP made this misleading statement:
“Hazardous waste is defined by the federal government as that which presents an imminent danger because of qualities such as explosiveness or corrosiveness, said Larry Hajna, a spokesman for the DEP, which is not required to issue permits for the dumping of contaminated soil.“
Hajna is just flat out wrong. While the federal EPA does define “hazardous waste” pursuant to Subtitle C of the Resource Conservation and Recovery Act (RCRA) – and “solid waste” pursuant to Subtitle D of RCRA – NJ’s Solid Waste Manage Act State law and NJ DEP regulations define and regulate “hazardous waste” and “solid waste” far more broadly and strictly than federal RCRA. Hajna also is wrong in his “imminent danger” claim as the basis for EPA federal regulation.
Even after the Navy deal was nixed, DEP doubled down on this false position:
“Brendon Shank, communications director for the DEP, on Tuesday said no state permit is required to ship the soil.”
In fact, the DEP regulates the Cumberland County landfill and issues a permit for its operation, including the types of waste it is allowed to accept. DEP has authority to determine compliance with the landfill permit, and to sample incoming loads to assure compliance and prevent illegal disposal of wastes not authorized by the permit. DEP also regulates all waste haulers that transport and dispose of wastes at NJ solid waste facilities and can sample loads to assure that they are hauling solid waste and not illegal hazardous waste. Read the applicable DEP regulations, which include this:
7:26-2.10 General engineering design submission requirements
[…]
vii. A waste inspection plan, which shall include a program for detecting and preventing the disposal of all unauthorized waste types, including regulated hazardous wastes. This program shall include, at a minimum, but not be limited to, the following:
(1) Random inspections of incoming loads unless the owner or operator takes other steps to ensure that incoming loads do not contain unauthorized waste types, including regulated hazardous waste or TSCA waste;
The same false reinterpretation and radical narrowing of DEP’s authority also is occurring regarding DEP’s regulatory jurisdiction over emissions of greenhouse gases. As NJ Spotlight recently falsely reported:
“But the bigger issue for the state may be to regulate carbon dioxide, the most pervasive greenhouse gas pollutant. Sen. Bob Smith (D-Middlesex), the powerful chairman of the Senate Environment and Energy Committee, has urged the state agency to do just that, which would be a broad expansion of its authority.”
Contrary to that claim, there “would be no broad expansion of DEP’s authority”. Greenhouse gases – not just CO2 – are already subject to DEP regulatory authority. See this 2005 DEP rule adoption document for support:
https://www.nj.gov/dep/rules/adoptions/2005_1121njac7_27.pdf
Getting back to the dirty dirt issue, I was stunned by the DEP claims regarding site access, sampling and DEP jurisdiction and denial of lead responsibility in the Vernon case.
FYI, contrary to testimony, here is DEP’s statutory authority, as set forth in DEP’s own Guidance document: (emphases mine)
3.4 Statutory Authority to Conduct Searches
- N.J.S.A. 13:1D-9 (General Department Authority)
[The department shall…have the power to:] Enter and inspect any building or place for the purpose of investigating an actual or suspected source of pollution of the environment and ascertaining compliance or noncompliance with any code, rules and regulations of the department.
- N.J.S.A 58:10A-6 (Water Pollution Control Act)
g. The Commissioner and a local agency shall have a right of entry to all premises in which a discharge source is or might be located or in which monitoring equipment or records required by a permit are kept, for purposes of inspection, sampling, copying or photographing.
- N.J.S.A. 58:10A-30 (Underground Storage of Hazardous Substances Act)
The Department shall have the authority to enter any property or place of business where under- ground storage tanks or non-operational storage tanks are or may be located; to inspect said tanks or photograph any records related to their operation; and to obtain samples or evidence of discharge from the surrounding air, soil, surface or groundwater.
- N.J.S.A. 13:1E-42.1 (Solid Waste Management Act)
The Department of Environmental Protection and Energy shall conduct a complete inspection, at least weekly, of each major hazardous waste facility.
- N.J.S.A 13:1E-65 (Major Hazardous Waste Facility Siting Act)
The Department and the local board of health or the county health department, as the case may be, shall have the right to enter any major hazardous waste facility at any time in order to determine compliance with the registration statement and engineering design, and with the provisions of all applicable laws or rules and regulations adopted pursuant thereto.
- N.J.S.A. 26:2C-9b (Air Pollution Control Act)
[The department…shall have the power to -] (4) Enter and inspect any building or place, except private residences for the purpose of investigating an actual or suspected source of air pollution and ascertaining compliance or non-compliance with any code, rules and regulations of the department.
- N.J.S.A. 26:2C-9.1 (Air Pollution Control Act)
No person shall obstruct, hinder or delay, or interfere with, by force or otherwise, the performance by the department or its personnel of any duty under the provisions of this act, or refuse to permit such personnel to perform their duties by refusing them, upon proper identification or presentation of a written order of the department, entrance to any premises at reasonable hours.
- N.J.S.A 58:12A-4 (Safe Drinking Water Act)
- N.J.S.A 58:16A-9 (State Flood Control Facilities Act)
(4) Notwithstanding the provisions of any general, special, or local law, the Commissioner, his officers or agents, when engaged on flood control projects may enter upon property for the purpose of making surveys, test pits, test borings, or other investigations.
- N.J.S.A. 26:2D-9 (Radiation Protection Act)
[The department shall:] (j) Enter and inspect radiation sources, their shielding and immediate surroundings and records concerning their operation for the determination of any possible radiation hazard.
- N.J.S.A. 13:1F-9 (Pesticide Control Act of 1971)
[The department shall have power, in addition to those granted by any other law, to] c. Enter and inspect any building or place, except private residences, for the purpose of investigating an actual or suspected violation of law relating to pesticides and ascertaining compliance or noncompliance with any rules, regulations or order of the [D]epartment.
- N.J.S.A. 58:10A-6 et. seq. (Clean Water Enforcement Act)
g. The Commissioner and a local agency shall have a right of entry to all premises in which a discharge source is or might be located or in which monitoring equipment or records required by a permit are kept, for purposes of inspection, sampling, copying or photographing.
In addition, as you know, NJ laws even delegate this broad authority to private individuals – so obviously DEP’s State police powers are far broader (see DEP website):
The Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-16 , requires the person conducting the remediation to gain access to real or personal property that is not owned by that person for the purpose of conducting remediation: 58:10B-16. Access to property to conduct remediation
I could expand on additional false interpretations that were presented in testimony and media reports.
If allowed to stand, these radical reinterpretations would seriously undermine and effectively gut DEP’s powers to protect public health and environment – including addressing climate change..
I strongly urge you to contact the Attorney General and DEP Commissioner McCabe and request that they issue written opinions of these matters – as well as OLS attorney’s.
Bill Wolfe