LSRP Bill Raises Serious Concerns on Cleanups

The Assembly Environment and Solid Waste Committee released A5293(Pinkin). The bill makes various changes to laws governing remediation of contaminated sites. Jeff Tittel, Director of the New Jersey Sierra Club released the following statement:

“We oppose this bill from being released in the committee. It needs a lot of work. This legislation is more about taking care of developers and protecting LSRPs than it is about cleaning up toxic sites. The Senate sponsor said they would work on amendments, so the Assembly should not have released this bill.

“This LSRP law has been in place for 10 years. We need to take a look at the program to see how it works and if changes need to be made. We need to make sure if the sites are actually getting cleaned up and the controls are working. It is critical that we protect the community with providing economic growth. We are concerned with the lack of transparency and accountability when it comes to site cleanups. There is too much happening with LSRP behind closed doors. The public has a voice when it comes to protecting their homes and lives from these sites.

“We are concerned that the bill sides too much in the direction of the licensed site professionals and not enough on the side of the public. We are seeing problems with the program and the legislation that need to be addressed. They had a private stakeholder process with developers, LSRPs, engineers, polluters and their attorneys. The public, people living on contaminated sites, and environmentalists were left out, which raises concerns. If the LSRP does something wrong, whether it was an accident or deliberate, they need to be held accountable. In the case of substantive reliance, if the LSRP relies on data or documents from another source or even themselves and ends up creating a violation, he will not be held liable for that violation. That’s like President Trump relying on Fox News for his facts, and so we can’t hold him accountable. That is why it is critical for an open and transparent process with communication on a cleanup plan and its implementation on these sites.

“We need to make sure the process for cleaning contaminated sites is more transparent and open. More importantly, the people being impacted by the contaminated sites also have at least a say in what is happening to their communities or even their property. They should have the ability to access documents that affect their lives. We have concerns that when in the process, LSRP picks the remedy, especially when it is a major contaminated site that has a great impact on the communities. Capping can work in some sites, but not all. On all of the sites where there is capping involved, is the cap still in place? Are the institutional controls working and will they get a further action letter? This is a privatized system. It’s the fox guarding the henhouse, the fox writing plans for the henhouse, the fox building the henhouse and the fox saying the henhouse is safe.

“After the bill was passed and became law, DEP had to come up with a priority list to focus on, they still have not come up with that list.  According to EPA, 3500 sites in New Jersey where the groundwater is contaminated within the time of travel to drinking water wells.

“What we see in this bill is limiting liability and giving liability relief. We need to make sure there is money going to LSRP and cleanups. What is missing, however, besides transparency, is making sure these sites are appropriately cleaned up. We have a concern when there is a conflict between what is an acceptable level of cleanup and what is not. On paper, it may look clean, but we don’t know if they actually are. We need to make sure these sites are not only cleaned up with protected standards, but for the community around them.

• Section 1-4: Liability relief section- We don’t believe in the public interest to provide liability relief based on LSRP certified remediation work plan. This could invite abuse and could give the LSRP the equivalent of DEP when it comes to regulatory powers.
• Surety Bond and Insurance will help provide money to continue to work. However, we are concerned about the law changed from having an MOU to just an oversight document. MOUs are legally enforced and there is no definition in the bill of oversight document.
• Section 9: We like the idea of green standards, the bill has not definition and lack technical standards or requirements. They are voluntary and therefore not enforceable.
• Section 13: The bill tries to expand public access for information, however it leaves control of an LSRP or responsible party. Therefore, they may not release all of the documents. This is really critical in doing an evaluation of the site, coming up with a work plan, and completing that work plan. There needs to be a better way for the public to have input to work plans on major sites.
• Section 4 Immediate and environmental concern: Replacing confirmed contamination could hinder dealing with a potential health emergency from a health contaminated site.
• Section 5:21: Gives the authority to give LSRP’s and LSRP Board that take away from DEP and public entities, this can undermine DEP’s enforcement authority
• Section 7 & 8 IEC notification standards: The LSRP must obtain specific knowledge, this can undermine the proportion of the principle.
• Section 9:25, LSRP Obligatory Merit: They may have rejected things or someone may have not disclosed all of the data. We need to make sure the information and data is accurate. Substantive reliance, we need full disclosure of all documents.
• Section 9:26– There are many sites that have been gone passed these timelines of 5-10 years and DEP has not taken jurisdiction.  In addition, they eliminated deadlines on federal sites.
• This undermines state action on RCRA sites, similar to Pompton Lakes and at least 100 other sites.
• Section 10: This section weakens DEP oversight. The language of financial hardship and public interest are questionable.
• We are confused as to why there are penalties if LSRP violates the workplace when they originally wrote the work plan and approved it. Why would they violate their own plan? Does this have to go through the administrative procedures act and with public comment.
• A section in the bill states that it is a penalty for knowingly making false statements. How do you prove that. That penalty is a pretty high bar.
• Sections J  and K: We support these sections. J includes that if LSRP contains knowledge that is of medium environmental concern, then they have to report it.  K writes that if an LSRP contains knowledge about a site, they have to report it.

“We would like to see in the bill that DEP should have the ability to go on any site if there are concerns or complain. When there is a conflict with town or neighbors and communities on the site, there needs to be some referee. LSRP has signed off on sites being clean and found adjoining sites like the Ray Catena case for example. They change the site to restricted even though it is residential. There is no way to deal with this except going to court. We need to tighten restrictions on rezoning in towns to avoid what happened in Pompton. The new zoning ordinance will allow for homes and business to be built on top of the toxic plume. We need an umpire or referee.

“In order to make sure polluters clean up their mess, we need to change DEP’s new guidance document. DEP proposed for the first time ever that at contaminated sites, polluters do not have to clean up contaminated groundwater. This will have major impacts on the health and environment of the people of New Jersey. The department did this bait and switch through a guidance document by allowing capping contaminates like VOCs instead of cleaning up groundwater. This is a major reversal of policy that will make our state dirtier and impact our public health. VOCs will permanently pollute our groundwater. This means polluters like DuPont will cap toxic VOCs in Pompton Lakes without cleaning up the contaminated groundwater.

“It is important that we are having this hearing to discuss this legislation, it is a critical issue. However we need to look at broader implications for site remediation, and the Spill Act. The courts have created loopholes in the Spill Act and limited responsibility for cleanup and allowed for weaker cleanups. Because there are no rules in place, NJ have lost two NRD cases in the last year. Need a rule in place or change the law. We also need to look at programs versus just civil litigation. With dozens of contaminated sites in New Jersey, cleanup needs to be done right and we need to be making more improvements.”