New Jersey Rushes to Halliburton-ize Toxic Clean-Ups

New Jersey's plan to lower standards for privatized clean-ups of toxic sites is on a fast track with a public hearing scheduled for today, when public attention is focused on tomorrow's elections. The proposed rules would gut key requirements for quick and complete remediation, thus removing the premise on which the Legislature authorized private contractors to oversee work previously done by the state, according to a letter released today by Public Employees for Environmental Responsibility (PEER).

The hearing today in Trenton will be the public's first chance to comment on the plan to dramatically weaken the new rules governing privately operated clean-up of toxic sites before they even go into effect. The proposed rules relax the standard for addressing vapor intrusion, delineation of the contamination source and responsibility for problems not discovered in initial reports. In justifying its proposal, the state Department of Environmental Protection stated (DEP) that it seeks to provide a "safety cushion" for responsible parties, at the request of affected industrial polluters. The rules are slated to be in effect by the beginning of 2011.

If the proposal is finalized, the Legislature has constitutional authority to veto the rules. In a letter to the legislative sponsors of the bill that set up the licensed private consultant system, New Jersey PEER Director Bill Wolfe, a former DEP analyst, argued that the proposals violated both the letter and the spirit of the law. "The legislative intent was crystal clear that the privatized clean-ups would be done with speed and thoroughness," he said. "These rules would pull a regulatory bait-and-switch on the Legislature." The rules would also be subject to litigation where they explicitly contradict statutory provisions.

In addition, the proposed rules appear to be at odds with DEP Commissioner Bob Martin's oft-repeated mantra that remediation reviews would be speeded up. By inserting loopholes into what were supposed to be mandatory deadlines, the proposed rules would allow privatized clean-ups to languish.

Perhaps more significantly, the rules would lower important public health and environmental safeguards, especially protections against intrusion of poisonous vapors into buildings long after the clean-ups have been declared complete. The rules also create an incentive for consultants to overlook dangers by insulating them from liability for later discovered contamination sources.

"The chief concern about outsourcing toxic clean-ups is that protecting the public takes a back seat to the profit motive," added Wolfe, noting that the state has a history of problems with attempts to privatize environmental programs. "These rules would Halliburton-ize environmental protection in New Jersey by leaving the contractor in charge of what gets done and when."

The two public hearings on this proposal are today, November 1, 2010, from 10 a.m. to 12 p.m. at the DEP Public Hearing Room in Trenton and Wednesday, November 3, 2010 from 10 a.m. to 12 p.m. at the New Jersey Water Supply Authority in Clinton. The comment period ends December 3, 2010

See the proposed toxic clean-up relaxations

Read the PEER letter

View the public hearing schedule