For Immediate Release
June 14, 2012 Contact Jeff Tittel, 609-558-9100
Private Toxic Site Cleanup Wrong for NJ The DEP's Licensed Site Remediation Professionals (LSRP) program went into effect in May.The Sierra Club continues to have serious concerns with the implementation of this privatization program and the impact it will have on our toxic sites.Under the program all contaminated sites, except a select few, will have their cleanup plans developed, implemented, and overseen by private contractors hired by the owners, responsible parties or people who purchase these properties.The legislation passed in 2009 privatizes the cleanup process and hands more authority over to LSRPs hired by the owners and polluters to conduct clean ups on their property.With over 20,000 contaminated sites in the state, virtually all residents will be impacted by the lack of oversight and weakening of cleanup standards under this program.
"The LSRP law is the Full Employment Act for engineers and consultants and undermines our environmental safeguards.This program was created by polluters for polluters and take the control of these contaminated sites away from staff at DEP and give them over to consultants that work for the polluters and developers," said Jeff Tittel, Director, NJ Sierra Club. There is no independent oversight by DEP or anyone else.The consultants pick the cleanup plan and can waive compliance and even standards.There is no review of the cleanup plan by DEP.Only the LSRP oversees the cleanup work being done on site, not the DEP.The LSRP certifies the cleanup has been completed without any independent testing, verification, or oversight. Violations may be listed in the rules, but there is no enforcement mechanism.There are over 200 potential violations but no mechanism to enforce and penalize for those violations.In Massachusetts, where this privatized program originated, 78 percent of the audits done on level 3 contaminated sites showed problems or additional toxins and we fear New Jersey will see similar results with virtually no DEP oversight. Even if a complaint is brought forward it is not the DEP that decides if there is violation, but the LSRP Licensing Board, which is made up a majority of LSRPS and business community representatives, meaning developers and polluters.So even if something were to go wrong the LSRPs are policing themselves and we know how well that works.
"Turning our toxic sites over to consultants that work for the polluters is like turning our military over to Blackwater and Halliburton, except instead of working for the US government they are actually being paid to work for the other side,"said Jeff Tittel. The Sierra Club's major concerns with the LSRP programs are:
-Lack of DEP oversight. The DEP will review just 10 percent of paperwork in conjunction with the cleanup, will not visit any sites, and will conduct audits on only 10% of LSRPs. The state is basically saying that it's not in the business of insuring the cleanup of contaminated sites.
-*LSRPs can determine their own waivers and alternative compliance guidelines.*LSRPs can decide what rules they do and do not want to follow on site with no oversight or enforcement by the DEP.We are concerned that LSRPs will be able to waive standards and compliance and more importantly will have the ability to waive certain remediation controls without any DEP oversight.There is no guarantee you cannot give multiple waivers to the same project making the law meaningless.Alternative compliance mechanisms could be used without having the DEP sign off on them.Since the LSRP signs off on the final cleanup, there is no way for DEP to know if the waivers actually met the objective of cleaning up and securing the site.Waivers would allow for weak institutional controls to be used on site instead of removing toxic materials, potentially creating "pave and wave" situations.This is in addition to the DEP Waiver Rule that allows the Commissioner to waive standards and compliance requirements.
"The DEP commissioner can issue waivers but the private consultants can also give themselves waivers.So you can waive goodbye to real cleanups at these sites, putting communities at risk," said Jeff Tittel.
-*Instead of removing toxic materials from these sites, more polluters will "pave and wave" -- essentially place an asphalt cap overtop the hazardous materials.* According to every scientific study, these types of controls will fail. Caps will crack from the weight of buildings. Sewer lines have the potential to destroy the cap, unleashing toxic materials and gasses. When these measures do fail taxpayers will be responsible for future clean ups, not the LSRP or the polluter.
-*Consultants can weaken groundwater standards and cleanups so that toxics can continue to contaminate water supplies. * LSRP's can declare virtually all groundwater contaminated areas classification exemption areas (CEAs), not requiring a cleanup.Dilution could be used instead possibly resulting in vapor intrusion in homes or the plume moving and impacting other drinking water supplies.
-The polluter will not be held responsible after cleanup. The responsible party will not be required to have insurance and it is not mandated to establish an escrow account to protect the site's future owner if more contamination is later found.It will be up to the homeowner or the taxpayer to clean up the additional pollutants, not the polluters or the developer.The administration is eliminating the "self-guarantee" protection for tax payers from the LSRP program.This lets LSRPs off the hook for any liability later down the road and that goes against the statue.
"When toxic waste is found on a site later, it is not the developer or LSRP that will be held responsible.Instead the tax payers will end up paying for it," said Jeff Tittel.
-Some of the most toxic sites will be turned over to private hands.The DEP is going to maintain control of very few of the 500 most contaminated sites in New Jersey.The definition to maintain DEP control is so narrow that virtually no sites will qualify.Even the most toxic sites could come under the LSRP without direct DEP oversight.
"LSRP stands for 'let's stay really polluted' because under these rules the consultants can do whatever they want without public oversight, impacting public health," said Jeff Tittel. The program will also delay compliance on certain sites by one year.Selected sites not cleaned by a May 7, 2013 deadline were supposed to revert back to DEP jurisdiction, but this deadline has been pushed out to 2014.This will allow toxic sites to continue to contaminate our communities and ground and surface waters. There is no public process on site specific cleanup plans. For certain sites in environmental justice communities or if residents petition there will be public hearings but this is a charade.Whatever information the public brings forward the consultants can simply ignore or waive since DEP has no oversight to incorporate the comments into the site plan. This privatization of toxic sites is being pushed while the DEP is cutting staffing to conductoversight. For 15 years, DEP's Site Remediation Program has suffered significant cuts. In 1994, there were 270 case managers overseeing 12,000 sites. Now there are 150 case managers for the 20,000 sites. The Sierra Club supports the redevelopment of brown fields but we believe those sites must be properly cleaned to protect public health and safety.If not, it will not only endanger the people who live and work there, but undermine the future efforts to bring appropriate development to brown fields.These regulations turn too much power over to private hands with no government oversight and could keep these communities in harm's way and jeopardize future redevelopment opportunities.
"We are through the looking glass.What is wrong is right, what is up is down, and polluters are hiring and paying their own consultants to certify that their sites are clean,"said Jeff Tittel. "This is worse than the fox guarding the hen house, this is fox designing the hen house and then certifying the hen house is safe."
-- Kate Millsaps Program Assistant NJ Chapter of the Sierra Club 609-656-7612