Star-Ledger (Newark, NJ) (pg. 21), August 27, 2006
DEP LAPSE POINTS TO A BULGING CASELOAD
Some Toxic Sites Sit On Fix-it List For Years
By Alexander Lane
As the state's environmental agency struggled to explain in recent days how a South Jersey day care center was allowed to open in a building long known to be contaminated with mercury, regulators and activists said it boils down to this: The agency is overwhelmed.
New Jersey has some 16,000 known contaminated sites, more than any other state. The task of overseeing them falls to 175 case managers at the Department of Environmental Protection, burdened with an average of 91 sites each.
That's far too many, current and former case managers and other officials said.
"There are sites that languish on bureaucratic lists and await attention for years," said former DEP Commissioner Bradley Campbell, who was in charge of the department from 2002 until early this year.
One former DEP case manager, Thomas McKee, recalled having close to 100 cases assigned to him for supervision in the early 1990s. A dysfunctional bureaucracy further hampered his work, he said.
"Deadlines for cleanup progress are not enforced; there is no priority system and no real tracking and reporting system," said McKee, who is now an environmental activist. "There are a lot of cases that just get lost in the shuffle."
DEP Commissioner Lisa Jackson said the day care debacle was not entirely the agency's fault. But she said the DEP had serious problems tracking, prioritizing and enforcing cleanups, and she is pushing for regulatory and legislative changes that could help.
"We have a major programmatic concern that needs to be addressed," Jackson said. "We are working on that, but obviously you're not going to get there overnight."
The day care center, Kiddie Kollege in Gloucester County's Franklin Township, operated for two years in a former thermometer factory that the DEP knew since at least 1994 was contaminated with mercury. A potent neurotoxin, mercury impairs thinking and learning, especially in children.
On July 28, state-ordered tests revealed mercury vapor concentrations in child-occupied rooms of 7 and 8 micrograms per cubic meter, far above regulatory limits of .2 to .3. Levels in the basement reached 42, the DEP said.
The center was immediately closed, but a lawyer for a dozen families with 3- and 4-year-olds at the center said some children were testing at levels double what is safe in adults. The parents of one child filed a lawsuit last week, and lawyers for other parents said they are considering similar legal action.
The building that housed the day care center, formerly known as Accutherm, was among 1,846 sites that languished on the DEP's Known Contaminated Sites List -- in some cases for years -- without being assigned to a case manager. They went unassigned because they were not known to be a threat to public health or because they were abandoned, said Irene Kropp, the DEP's assistant commissioner in charge of contaminated sites.
Moreover, case managers were simply too busy dealing with sites that were known to be immediate threats or were flagged for review because they were part of a real estate transaction, Kropp said.
Because the 1,846 sites had not been assigned case managers, they were dropped from the list in 2004 and 2005, although they were still being tracked in other databases, DEP officials said. But by the time the day care center was purged from the list in late 2005, it had been open for nearly two years.
Even if the sites had been assigned to a case manager, there is no guarantee they would have been reviewed regularly, DEP officials said.
"If you're a case manager and you have 125 cases on your plate, you clearly are not clearing out 125 cases in a month," Kropp said. "They try to get to the ones that are the highest priorities."
The state Attorney General's Office is investigating how the day care center was allowed to open. And on Friday, Gov. Jon Corzine called for the Department of Children and Families to develop new regulations ensuring that child care centers are not built on polluted sites.
SITES LINGER FOR YEARS
Of the state's 16,000 or so known contaminated sites, at least 6,461 are more than 5 years old. Another 200 to 300 sites are added every month, Jackson said.
One former chemical company site in South Brunswick has been identified as contaminated since 1981 and has not been cleaned up. The same goes for a radium company in Orange, identified by the DEP as a contaminated site in 1984. A metal finishing company site in Bound Brook has been contaminated since 1985 and is still an active case.
Cases that call into question the department's management of contaminated sites regularly capture the public spotlight. In 2003, a federal judge appointed an independent special master to oversee the cleanup of a chromium-contaminated site in Jersey City, saying years of DEP supervision had failed to protect public health.
The DEP's site remediation department attracted criticism earlier this year when it was discovered that debris from the former Ford plant in Edison -- a known contaminated site that has been assigned to a case manager since at least 2002 but remains contaminated -- was used at several residential and commercial construction sites around the state.
A large workload is not the only obstacle case managers face. Two laws passed in the 1990s restricted their ability to dictate cleanup methods, instead empowering the companies responsible for the contaminated sites to do so. Case managers can, however, reject cleanup proposals they deem inadequate.
This dynamic often forces case managers into an "endless loop" of "negotiation and jawboning" with polluters, Campbell said.
Kropp said a new regulation set to take effect next month was designed to curb that pattern. It gives cleanup companies two chances to send in an acceptable proposal, then allows for penalties if they do not get it right the second time.
Former DEP staff member and environmental activist Bill Wolfe said the new regulation was not stringent enough, and fell far short of the "culture change" necessary at the DEP.
Hal Bozarth, a lobbyist for the New Jersey Chemistry Council, which represents many companies with contaminated sites, said the Kiddie Kollege was an isolated incident that highlighted the need for better management at the DEP, not new laws or regulations.
PRESSURE OF POLITICS
One current case manager, Amil Singh, said heavy caseloads account for the notoriously low morale in the site remediation department. But he also said the department was plagued by a less tangible problem: political pressure.
It is particularly intense when a redevelopment project or real estate transaction at a contaminated site is being held up pending a "no further action" letter -- a certification that a cleanup is complete -- from the department, he said.
"There's a lot of pressure on the case managers to take certain actions in order to appease the local governments and make property move," Singh said. "I've been pressured to produce NFAs (no further action letters) by my own management."
As examples, he cited landfills in Jersey City and Newark, where he said pressure from politically connected developers flowed through superiors to him to clear the sites for development before it was warranted.
"That is a real problem for the lowly case manager who has to deal with the technical issues," he said.
Singh, who was not authorized to speak to the press but said he was doing so because it was in the public interest, said the political pressure appears to have eased at least somewhat under Jackson, who rose through the ranks as a longtime staff member of the Environmental Protection Agency.
Alexander Lane covers the environment. He may be reached at firstname.lastname@example.org or (973) 392-1790.
Copyright 2006 The Star-Ledger