In late December 2009, the Sierra Club asked the EPA to look at the impact of the of the Licensed Site Remediation Professional (LSRP) program on contaminated site cleanups. The Club is concerned given the EPA audit of New Jersey's site remediation program, that this new program would make things worse. The Club requested that the EPA review the LSRP legislation and how it affects federally delegated programs on site remediation in New Jersey.
When questioned by the EPA, New Jersey DEP responded by removing all federal sites from the LSRP program. This enables the NJDEP to avoid EPA oversight. What this means is that all federal sites under federal jurisdiction or federal sites under NJDEP jurisdiction would not be part of the LSRP program. The program would then not apply to RCRA or Superfund sites. This means instead of DEP complying with EPA on having proper oversight and quality assurance, New Jersey is using a loophole to get around the oversight.
Instead of fixing problems, we're making them worse. DEP is trying to get around the EPA concerns by removing those federal sites from the LSRP program.
The EPA also recommends that the New Jersey Department of Environmental Protection use its oversight to include frequent spot-checks and review of decisions. However, we are concerned that the way the LSRP law is being implemented would not allow this to happen. We are hoping the EPA will do enhanced scrutiny as they have promised.
The lessons of the tragic oil spill in the Gulf of Mexico show what happens when government privatizes the environment and public safety, and fails to have oversight - disaster happens. We are concerned that the LSRP program in New Jersey which privatizes toxic cleanups without proper oversight will end up in disaster for the people of New Jersey. Instead of an oil spill we will end up with toxic communities.
Since 2005, NJDEP has been out of compliance and hasn't done proper oversight or quality assurance. The problems in the 2005 audit still had not been fixed in 2009.
The following portions of the LSP program reduce oversight and are of specific concern:
- Failure to have onsite testing by DEP to make sure sites are clean
- Failure to provide for proper citizen review or involvement in work plants
- Failure to give DEP authority for audits. The DEP can only inspect 10 percent of paperwork
- Licensed Site Remediation Professionals are allowed to submit a Response Action Outcome (RAO). This has been given the same authority as a No Further Action Letter. No Further Action Letters should only be given by state agencies. Extending this authority to private consultants, is allowing consultants to act as agents of the state without oversight from the DEP.
With a covenant not to sue there is no recourse for government or citizens if institutional controls do not work putting public at risk
The DEP site remediation program has been broken for a long time. Failure to do proper oversight of consultants and polluters has led to serious problems:
- In 2007, EPA had to step in and take away control over three Superfund sites in Middlesex County from DEP
- In Pompton Lakes, a cancer cluster has been identified with a significantly higher level of certain cancers being diagnosed due to contaminated ground water from the DuPont site
- Sixty children were exposed to a level of mercury because the Kiddie Kollege daycare was built on a thermometer factory
- In Hamilton, high levels of asbestos were found in the community surrounding the WR Grace, another example of a failed cleanup
- Coal tar was found leaking into the basements of homes in Long Branch
- The brand new Martin Luther King School in Trenton had to be torn down because it was built on contaminated fill
- High levels of chromium in Hudson County, being moved by contaminated groundwater, are leading to increased rates of lung cancer in Jersey City men
- At the Xanadu site, 39 barrels of toxics were found
- At Mercer Rubber in the Trenton-Hamilton area, high levels of asbestos and other carcinogenic chemicals were found
- At the Quantas site in Edgewater the cap on top of the contamination was so porous that a blowtorch from a worker lit it on fire.
In 2009 the EPA did an audit of the New Jersey site remediation program and found that the program did not correct deficiencies that were identified in 2007, including improper quality assurance and oversight for private consultants. The Sierra Club is concerned that under the new bill the consultants would have more powers and there would be less oversight. EPA reported back that federal Superfund and RCRA sites would not fall under the LSRP program and would still be under DEP direct supervision and jurisdiction. There would be no private consulting on federally regulated sites.
What this means is that there is a stricter standard for federal sites and a weaker standard for state sites, both of which are under DEP jurisdiction. This takes the Christie Administration's Executive Order to another level. Not only will New Jersey not have rules stricter than the federal government's, we'll have weaker rules.
This shows the hypocrisy of the Christie Administration that says we shouldn't have regulations stricter than the federal government's. But it's alright for us to have standards weaker than the federal government's, putting New Jersey at risk.
The EPA will also hold New Jersey to the Corzine Administration's May 7, 2009 Executive Order to increase auditing and monitoring of sites and do more inspections, especially where groundwater is subject to contaminants. The Christie Administration's transition team and red tape task force recommended rescinding that executive order.
The LSRP program is much worse than the fox guarding the henhouse. It's the fox building the henhouse and certifying that it's safe.
Jeff Tittel is the Director of the Sierra Club, New Jersey Chapter.