Newark Star-Ledger
March 7, 2004

WEAKENED RULES A BOON TO 3 POLLUTERS

Work of scientist paid by the firms viewed skeptically by other
experts

By Alexander Lane

Early last decade, three companies responsible for widespread
chromium pollution in Hudson and Essex counties faced a
decision.

They could spend hundreds of millions of dollars cleaning up
contaminated sites, or they could try to persuade the state
Department of Environmental Protection to relax its limits on
the cancer-causing toxin.

The companies -- now known as Honeywell, PPG Industries Inc.
and Maxus Energy Corp. -- chose the second option and hired a
California scientist named Dennis Paustenbach to press their
case.

Over the next decade, Paustenbach and his team of scientists
succeeded wildly. When they started out, New Jersey's limit for
the most dangerous form of chromium was 10 parts per million in
soil. Now it has reached 6,100 parts per million -- among the
least stringent standards in the nation.

The DEP's policy change -- forged gradually under the
administrations of Govs. James Florio and Christie Whitman --
saved the companies an estimated $1 billion in cleanup costs.
In some cases, they have been able to walk away from polluted
sites without removing a single shovelful of dirt.

The companies and Paustenbach maintain they succeeded through
sound science.

"We published 20 or 30 papers," said Paustenbach, who has a
doctorate in environmental toxicology from Purdue University.
"That information is used throughout the world to make
decisions on contaminated soil."

But a close look at his work in New Jersey, including
interviews with dozens of state scientists and outside experts,
shows that the state's revised chromium standards were not
simply the product of new scientific research.

Scientists at the state's environmental agency said supervisors
sided with Paustenbach and his team at nearly every turn.
Lobbying records show the companies poured hundreds of
thousands of dollars into changing politicians' minds about
chromium. Independent scientists remain skeptical of
Paustenbach's chromium research, and have launched their own
studies into his central claims.

Give and take between hired scientists and regulators is
routine in the world of environmental protection. As the
dangers of some industrial chemicals came to be more widely
understood in the 1970s and '80s, government agencies at times
imposed severe limits, only to loosen the restrictions after
scientists developed more definitive data.

What sets the 15-year struggle over New Jersey's chromium rules
apart from similar disputes is the magnitude of the companies'
effort to influence state policy, and the lingering questions
about the quality of their science. At least three key
scientific conclusions on which the DEP based its standards
remain the subject of heated debate.

"A lot of Dennis' stuff is very, very flawed," said Brian
Buckley, a chromium expert with the Environmental and
Occupational Health Sciences Institute in Piscataway, which is
affiliated with Rutgers University and two medical schools.
"His research initiatives were very carefully chosen to try and
make chrome seem like less of a bad actor than it might be."

SPREADING A TOXIN

Veteran workers at Hudson County's three chromium plants, which
opened in the early 1900s and operated for about 50 years, used
to show new guys a trick. They would put a dime in one nostril
and pull it out the other.

It wasn't slight of hand, it was what doctors call a
"perforated nasal septum." Chromium had eaten away the
cartilage between their nostrils.

The plants ran 24 hours a day, refining raw chromium ore mined
in East Asia and South Africa into paint pigments, bumper
plating and other products. It was a process akin to making
coffee. Every pound of product left a pound or more of toxic
residue.

Hills of green, black and yellow waste piled up so high that
kids used them as sled runs. Honeywell's predecessor, Mutual
Chemical Co., filled in a marsh along the Hackensack River with
chromium waste, creating what locals called "Yellow Lake."

The companies solved their nagging disposal problem in the
1950s and '60s by giving away the chromium-laced waste as
construction fill, taking advantage of its soil-like texture.
Contractors lined up for free fill, using it to shape
foundations, pave roads, fill in wetlands and build sewers.

But chromium doesn't lie still. It heaves, swelling the earth
above it. It climbs up walls, growing like a crystalline beard,
then washing away in the rain. When dry and powdery, it catches
breezes and sails through the air.

In its most dangerous form, it has been linked to lung cancer,
nasal cancer, stomach cancer, blood cancer and lymph cancer in
studies dating to the 1920s.

Chromium plagued the site of the St. Johnsbury Trucking Company
in the 1970s and '80s, where the 1987 autopsy of a longtime
worker revealed a yellow skull and a perforated nasal septum.

It blew through the air ducts of the Whitney Young Jr.
Elementary School in Jersey City, where 35 of 197 students that
the state Department of Health tested in 1989 had elevated
levels of chromium in their bodies.

It tinged pools of rainwater yellow and green on Metro Field in
Jersey City, where Little League players would complain of
rashes.

In all, the DEP identified 189 chromium sites in Hudson and
Essex counties.

Most of the chromium was trivalent chromium, or chromium III --
the type of chromium that is sometimes used as a dietary
supplement. But mixed in among the trivalent was chromium VI,
or hexavalent chromium, which causes skin rashes, perforated
nasal septums and cancer. According to the companies' own
estimate, 14 percent of the chromium dumped in North Jersey was
hexavalent.

In the 1989 gubernatorial election, both candidates campaigned
in Jersey City and vowed to clean up chromium. By 1992, 37
residential sites had been cleaned.

Then the chromium companies started stalling, officials said.
They repeatedly submitted flawed plans, dragging out cleanups
for years, according to Frank Faranca, the Department of
Environmental Protection case manager in charge of many of the
chromium sites.

To date, the majority of the 189 sites have not been cleaned.

"There was this exchange, back and forth, back and forth," said
Faranca, who still works at the department. "They weren't doing
what we were telling them to do."

But in the corridors of state government buildings, they were
hard at work.

INDUSTRY SCIENCE

Between 1990 and 2001, the predecessors of Maxus and Honeywell
spent at least $400,000 on lobbying, employing Democratic power
broker Harold Hodes.

Hodes said in a recent interview that he was not closely
involved, that most of the work was handled by his colleague,
Sharon Harrington. Harrington, who was recently named head of
the state Motor Vehicle Commission, did not return numerous
calls for comment.

According to state lobbying reports, the Hodes firm spoke with
officials about chromium criteria and health concerns
throughout the 1990s at the governor's office, the Department
of Health and the DEP.

Meanwhile, the companies pooled their money and put Paustenbach
to work in the realm of science.

He and a team of scientists developed a 10- to 20-year strategy
for minimizing the companies' liability that centered on
changing the state's cleanup standards, they later wrote in a
toxicology textbook edited by Paustenbach. The standards would
"largely dictate the type and size" of the cleanups, they
wrote.

They hired mainly young staff members, avoiding "academic
specialists" because academics generally work at "a much slower
pace," they wrote.

The team attacked concerns about chromium's dangers from just
about every conceivable angle.

When a state health study years in the making suggested in 1995
that Jersey City residents had been exposed to chromium,
Paustenbach and his team wrote a scathing letter to the Journal
of Toxicology and Environmental Health criticizing the study --
before it had been published.

When state scientists determined chromium caused skin rashes,
Paustenbach's team argued the DEP was using the wrong testing
method. When that argument failed to convince the department,
Paustenbach and his team again did their own study and used the
results to argue that the standard was too restrictive.

When confronted with a study that suggested trivalent chromium
could convert into deadly hexavalent chromium, the industry
team hired the scientist who had conducted it, Bruce James of
the University of Maryland. James revisited his work and
concluded that trivalent chromium would not turn to hexavalent
in the sort of waste present in Jersey City.

James declined to be interviewed for this article, but he said
in an e-mail exchange that he did not shape his study for the
companies' benefit. "If I had found that Cr(III) had oxidized
to Cr(VI) in those soils, they would have been told so," James
wrote, referring to trivalent and hexavalent chromium.

The companies were able to revive a chromium testing method
that the state had previously rejected because of concerns that
it undercounted hexavalent chromium. They revised the technique
slightly and validated it with their own study.

The state approved the testing method. DEP scientist Stuart
Nagourney said in a 1993 memo that high-level managers had
ignored his opinion on the method.

"If the RPs (responsible parties) were involved, why couldn't
my staff (be)?" wrote Nagourney, who still works at the
department.

Nagourney and other experts said recently they continued to
believe the method fails to count all of the hexavalent
chromium. Another DEP scientist, Teruo Sugihara, however, said
there are ample quality-assurance checks in place to be sure
the method works on any given sample.

Paustenbach's work fits a familiar pattern, said David
Michaels, an environmental research professor at George
Washington University who served as assistant secretary for
Environment, Safety and Health at the U.S. Department of Energy
from 1998 through January 2001.

"There is a whole industry that exists to convince regulators
that exposures aren't dangerous in order to get companies off
the hook," Michaels said. "And Paustenbach and (his former
firm) Exponent are in the middle of that industry."

AN UNWRITTEN POLICY

Nagourney was just one of several state environmental experts
irked at the access and influence granted to the industry
scientists by upper management at the DEP.

Paul Richter, who worked on chromium as a toxicologist at the
DEP from 1987 to his resignation in 1996, said Paustenbach's
team of several scientists met frequently -- at times every
week -- with managers and scientists at the department, an
uncommonly close working relationship.

"You had some people working day to day to clean them up, and
you had supervisors working day to day not to clean them up,"
Richter said of the chromium sites. "No one was willing to put
that message in writing. But if you didn't get it, they would
transfer you to the basement."

Lance Miller, who was assistant commissioner for hazardous-site
remediation at the DEP from 1990 to 1994, said he never
received political pressure to slow down cleanups, and he never
transferred anyone for disagreeing with his decisions.

"My philosophy as a manager has always been, you get the
opportunity to present your views, by all means, and if you
disagree with the decision that's being made, tell us you
disagree," Miller said. "But once the decision has been made,
it's time to close ranks and say, now it's time to implement
that decision."

As DEP scientists and managers met with industry scientists,
the public was largely shut out of the process. A Hudson County
citizens group concerned about chromium, the Interfaith
Community Organization, repeatedly asked to be informed of any
state meetings with the company scientists, and to be allowed
to attend. They rarely were.

Scott Weiner, who was DEP commissioner under Florio, said he
had only vague memories about meetings on chromium -- one of
which, he said, included one of the company CEOs and "probably
the governor."

"I do have a strong recollection about one thing," said Weiner,
now on the faculty of Rutgers University's Urban Studies
department, "and that is at no time, to my knowledge, was there
an effort, a policy, or anything like that to in any way slow
down the chromium cleanup."

The most pronounced changes in chromium policy came during the
Whitman administration, when the standard reached its current
level. Robert Shinn, DEP commissioner under Whitman, did not
return numerous calls for comment.

But Ronald Corcory, the DEP's chromium coordinator through the
Whitman years, said all chromium decisions were justified by
sound science.

"The science has evolved, the science has moved, the numbers
have moved, the risk has been more adequately determined,"
Corcory said.

As to why the companies' critics were not invited to meetings
with industry scientists, Corcory said: "Opinions shouldn't
drive public policy, science should drive public policy."

According to testimony in a California lawsuit, the chromium
companies had collectively paid Paustenbach and his firm more
than $7 million for their work in New Jersey by 1995.

Paustenbach said he was not sure how much his firm's fees
eventually totaled, but that it was less than $10 million. In
the textbook, he estimated that all three companies had reduced
their cleanup obligation by 75 percent, saving up to $1
billion, not counting personal-injury lawsuits.

Chromium companies have lobbied intensively around the country.
In Massachusetts and Maryland, two other states with chromium
contamination, the industrial limits for hexavalent chromium
peak at 610 parts per million, about 10 times stricter than New
Jersey's. With respect to trivalent chromium, Maryland allows a
maximum of 310,000, and Massachusetts allows 2,500, while New
Jersey has no limit.

"I think it's much too high," Charlotte Witmer, a retired
Rutgers toxicologist who worked on chromium, said of New
Jersey's standards.

LINGERING QUESTIONS

Mike Turner, a spokesman for Tierra Solutions Inc. -- a company
that Maxus created to manage its environmental cleanups --
defended Paustenbach's science.

"He has credentials that make him an unparalleled expert in the
field of chromium," Turner said.

Kate Adams, deputy general counsel of Honeywell, defended
industry-funded science in general.

"States don't have that much money, and they have a limited
ability to obtain scientific information on their own," Adams
said in a telephone interview. "As a consequence of that, they
are dependent on the information provided to them by interested
parties of all sorts. ... We believe these decisions should be
made on the basis of sound science."

Paustenbach said he remains convinced that it is not necessary
to clean up all the chromium.

"You might choose to do it, under a precautionary principle,"
he said in a telephone interview. "But it wouldn't be a
scientifically driven health hazard."

Under the new standards, the companies are intensively seeking
"no further action" letters -- state documents certifying they
have dealt with the contamination at a site. State officials
said Honeywell is close to receiving the final approval on
about six sites in Jersey City, while PPG Industries said it
was waiting for the final paperwork on nine cleanups.

But there is still not a scientific consensus about the
validity of Paustenbach's central contentions about chromium.
In particular, three key points are the subject of heated
scientific debate.

The loosened standards are based on the assumption that
chromium causes cancer only when you inhale it, not when you
eat it or drink it. If it did cause cancer by ingestion, as
many scientists suspect, it would have to be regulated much
more tightly, state officials said.

The National Toxicology Program, a federal research agency, has
launched a study into this question, though it is not expected
to be completed for some time.

There is also the matter of whether trivalent chromium can
convert into much more dangerous hexavalent chromium.
Paustenbach said it cannot, and the state accepted his
conclusion. If it could convert, as some scientists believe,
the companies would face much larger cleanups.

"It converts in the ground, from season to season," said
Buckley, whose institute is affiliated with the University of
Medicine and Dentistry of New Jersey and Robert Wood Johnson
Medical School.

Furthermore, it's not clear that trivalent chromium is
completely safe, Buckley said.

Amid such concerns, the administration of Gov. James E.
McGreevey said it is reviewing the state's chromium standards
closely.

"The important thing at this point is that we are revisiting
the standards and revisiting the science and we are taking a
fresh look at it," said DEP Commissioner Bradley Campbell.
"Because these parties have resisted their cleanup obligation
over the years, our fresh look at the science will be relevant
to many of the cleanups that remain."

Advocates who have fought for chromium cleanups for years said
they remained skeptical.

"The last two governors not only allowed the industries to
rewrite the rule book on chromium, they helped them do it,"
said Joe Morris of the Interfaith Community Organization, a
Jersey City group that recently won a lawsuit against Honeywell
over one chromium site. "The result is that Gov. McGreevey has
a lot of cleaning up to do."

Alexander Lane covers the environment. He can be reached at
alane@starledger.com or (973) 392-1790.

Copyright 2004 The Star-Ledger