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For Immediate Release: Oct 09, 2007
Contact: Kirsten Stade (202) 265-7337

NEW JERSEY ADMITS PRIVATIZED CLEAN-UP PROGRAM HAS FAILED

State Relies on Industry and No Longer Inspects Sites Until They End Up in the News


Trenton — The New Jersey Department of Environmental Protection has declared its toxic clean-up program “broken” but does not have a solution. The fundamental problem is that the state approach rests on the flawed premise that it must depend on voluntary cleanup agreements and industry certifications that clean-up has occurred, rather than the traditional methods of direct state field inspection, monitoring, and enforcement, according to Public Employees for Environmental Responsibility (PEER).

In a September 24, 2007 news release, DEP Commissioner Lisa Jackson stated—

“We realize that the state’s system that allows self-reporting for monitoring of these contaminated properties is broken…Still, this situation seriously undermines the department’s ability to ensure protection of public health and the environment.”

On that same day, DEP issued an advisory to industry contradicting Ms. Jackson’s pledge to use “every enforcement tool available to bring these responsible parties into compliance as promptly as possible” –

“The Department’s receipt of biennial certifications and monitoring reports is the only means through which the Department can ensure that long-term monitoring and maintenance occurs and that the implemented remedy remains protective over time. The Department must rely on self-monitoring and reporting by those responsible due to the volume of such sites with respect to available Departmental resources.” {Emphasis added}

“DEP is just flat out wrong; it does not have to depend upon industry self-reporting of violations,” stated New Jersey PEER Director Bill Wolfe, a former DEP analyst. “This is like a police chief saying that we have so much crime we are going to ask criminals to turn themselves in.”

Pointing to flaws that are statewide in scope, PEER argues that botched clean-ups, such as the notorious Kiddie Kollege, Ford, and W.R. Grace cases, no longer can be dismissed as anomalies or isolated sites “falling through the cracks.” The principal problem, PEER contends, is that the law allows polluters to select incomplete clean-up plans, an inherent weakness that is compounded when DEP relies on a paper exercise (review of industry self certifications) rather than inspection and enforcement in the field.

“DEP needs to start putting boots on the ground, otherwise it will never get a handle on what is actually occurring,” Wolfe added. “DEP has a number of enforcement tools in its arsenal but those tools are getting rusty from disuse.” Among the powers DEP is not exercising are —

  • Enforcement actions, including hefty fines of up to $50,000 per day in penalties;
  • Treble damages, so that DEP can recoup three times the costs of clean-ups that DEP conducts; and
  • Directly imposing corrective action requirements via Spill Act Cleanup Directives.

Inexplicably, DEP has issued no enforcement actions. Nor has it followed up to make sure that clean-up requirements are being followed. Instead, DEP has extended a six-month amnesty to 2,100 violators, yet only 840 industries replied. Impotently, DEP is sending warning levels to 950 industries which did not even bother responding to the agency’s offer of a grace period.

“DEP has no hope of securing industry cooperation until they make some examples out of non-cooperating polluters,” Wolfe concluded. “Simply enforce the law, dammit.”

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See the DEP enforcement advisory

Read the DEP statement conceding a broken system

View the state toxic site database

Look at the failure of DEP to prioritize toxic clean-up sites

New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability.