Trenton — In a quiet announcement of new regulatory “guidance,” the Christie administration is allowing developers for the first time to leave highly toxic soil in proximity to groundwater. The action not only reverses decades-old protections but also guts enforcement against further contamination of groundwater, the drinking water source for millions of New Jersey residents, according to Public Employees for Environmental Responsibility (PEER).
In an email to industry consultants on March 25, 2014, the Department of Environmental Protection (DEP) unveils new guidance “developed by Department staff and external stakeholders” which provides:
“Capping was previously not permitted for the Impact to Ground Water Pathway. This policy has been revised such that capping is now permitted for semivolatile and inorganic contaminants providing certain site-specific conditions have been met.”
This new policy covers a wide range of pollutants, including aluminum, antimony, arsenic, barium, beryllium, cadmium, chlordane (alpha and gamma), chrysene, cobalt, cyanide, 4,4’- DDD, 4,4’- DDE, 4,4’- DDT, dieldrin, Endosulfan I and Endosulfan II, diesel, fluorene, heptachlor, heptachlorobenzene, lead, manganese, mercury, naphthalene, nickel, nitrobenzene, pentachlorophenol, phenol, PCB, selenium, silver, tertiary butyl alcohol (TBA), mercury, thallium, toxaphene, vanadium, and zinc.
“I wish this was an April Fools prank but it is not. This allows developers to ‘pave and wave’ in walking away from plumes of deadly pollution,” stated New Jersey PEER Director Bill Wolfe, a former long-time DEP analyst. “This type of surprise guidance gives underground rulemaking an even worse reputation.”
The two-page guidance itself provides little specific direction about how groundwater will be protected:
“Leaving contaminant concentrations in soil that are above the site specific Impact to Ground Water Soil Remediation Standards poses a risk to the underlying ground water if the cap is breached or if site conditions are such that a long-term stable cap cannot be maintained. Therefore, the suitability of capping as a permanent remedy for the impact to ground water pathway should be ascertained on a site-by-site basis.”
This appears to be the latest step in a pattern of Christie “regulatory relief” rollbacks repealing by fiat a number of important public health safeguards, including –
• Deregulating deadly vapor intrusion that seeps into buildings atop incompletely cleaned sites;
• Abandoning groundwater contamination standards if the clean-up is found “technically impracticable” and
• Placing clean-up decisions in the hands of industry-selected “Licensed Site Professionals.”
“While an impermeable cap may stop some movement of pollutants to groundwater, it will not prevent all such movement and resultant contamination,” Wolfe added. “Amazingly, this guidance presents no rationale, offers no scientific basis and is ambiguous as to whom if anyone enforces it. With this guidance, it seems there are no public health safeguards left to give away.”
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