State Finally Takes Action on Vernon – Long Overdue

New Jersey Attorney General Gurbir Grewal, acting on behalf of the NJDEP, filed an order in Superior Court that would halt all activities at the Vernon dump site, force the property owner to identify all the materials in the massive pile and allow the state to do its own testing of the dirt and debris.

“Finally, the Attorney General is taking action to end this nightmare in Vernon. Illegal dumping in the town has become a toxic menace to the community. The Attorney General has gone to court but it is taking too long. DEP had been making excuses and did nothing, even as Vernon faces a growing nightmare from an expanding pile of dirt that could be toxic. Now that the state has finally taken action, the DEP need to get on the site and do the testing and analysis that should have been done a long time ago,” said Jeff Tittel, Director of the New Jersey Sierra Club. “We have said all along that the DEP had the authority to stop the illegal dumping. Now they are using it to end illegal dumping and to go after those responsible.”

Wallace, owner of the Vernon site, has pleaded guilty to six counts of illegal dumping in New York. DEP Commissioner Catherine McCabe says Wallace is accepting Class B construction materials, including asphalt, brick, rebar and metal pipes – exactly the type referenced by SCI. The facility is not licensed for such use.

“We have said all along the DEP has the authority to investigate illegal dumping activities and now they are finally using it.  Now the DEP must do independent testing to investigate the levels of contamination at the Vernon site and where it is coming from. All testing should be paid by Wallace, but he should not be able to oversee it. These illegal dumping operations threaten clean water, clean air and public health. They have been around for far too long,” said Tittel. “Independent water tests show lead levels 15 times higher than allowed on a neighboring property that’s why we need an independent review and monitoring.”(See addendum below of at least three statutes clearly spell out DEP’s full authority to thoroughly investigate any site where it suspects pollution or illegal activities)

Illegal dumping of contaminated materials damages the environment and public health, and can be very costly to taxpayers. A bill, S1683 (Smith), released last week by the Senate Energy and Environment Committee would help tighten regulations by expanding the requirement for background checks to a broader range of persons involved in the solid waste industry, such as sales persons, consultants, and brokers. But the overriding problem continues to be DEP’s lack of enforcement.

“The state still needs to pass and tighten standards on dirty dirt. The illegal dumping in Vernon and elsewhere should be a wakeup call to our legislature and the Murphy Administration that we need more enforcement power and inspections. The Senate bill helps however we need more from DEP. New Jersey has a history of contaminated materials coming into our state, in part because DEP chooses not to regulate these chemicals. DEP needs to set and enforce standards for toxic materials to prevent any more possible dumping,” said Jeff Tittel, director of the New Jersey Sierra Club. 

At least three statutes clearly spell out DEP’s full authority to thoroughly investigate any site where it suspects pollution or illegal activities:

• 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.

This statute allows DEP to go wherever it wants to examine even a suspected pollution source, and to do what’s needed in determining if rules and regulations are being followed. This alone provides DEP all the authority it needs to investigate the Vernon site and shut it down.

• 7:26A-1.5 Burden of proof (NJ DEP recycling regulations)

(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.

This statute would place the burden of proof on the owner of a site suspected of accommodating illegal dumping to show compliance. DEP has not required this of the Vernon site owner, Joseph Wallace.

• 7:26A-1.7 Right of entry and inspection (NJ DEP recycling regulations)

(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-compliancewith the statutes, rules or regulations of the Department, including conditions of the recycling center approval issued by the Department.

This statute provides DEP with much of the same authority as the other statutes as it applies specifically to recycling operations, detailing DEP’s broad right to enter and inspect any site it chooses.