Three prominent environmental groups have asked the Department of Environmental Protection to rework its site remediation program citing a “major conflict of interest.”
In a letter to DEP Commissioner Bob Martin, representatives of the Sierra Club, the Edison Wetlands Association and New Jersey Public Employees for Environmental Responsibility say the state’s Licensed Site Remediation Program and the make-up of the board that governs it has created a situation where public policy decisions are made by officials who have a financial interest in the outcome.
“The board is composed almost entirely of (Licensed Site Remediation Professionals)who either own or are principal employees of large and small remediation companies whose financial bottom lines are directly affected by any decisions made by the LSRP board including the audit process,” the environmental organizations wrote in the letter to Martin.
The LSRP program was created two years ago with the passage of the Site Remediation Reform Act. According to the DEP, the act “established the affirmative obligation for responsible parties to remediate contaminated sites in a timely manner.” The intent of the act is to speed up cleanup of some 16,000 polluted sites across the state.
The act allows for the Licensed Site Remediation Professional to “step into the shoes” of the DEP in order to oversee the cleanup of a contaminated site. The DEP monitors the cleanup through the submission of forms by the LSRP as certain milestones in the process are reached. The officials have the same ability to bless a site clean as DEP. To keep the LSRP honest the DEP will routinely audit the the cleanup.
The act also created an LSRP board charged with overseeing the licensing and conduct of the remediation professionals.
It’s the board and the audit process that the environmental groups say is a problem.
“At least under the old system, the DEP was checking sites to make sure they were remediated,” said Sierra Club Executive Director Jeff Tittel. “Under this program all they are checking is the paperwork. It doesn’t work.”
But David Sweeney, assistant DEP commissioner for site remediation, said the Sierra Club and other groups are confused about the audit process. The DEP can and will conduct a review of the clean-up, which may include a site visit and testing.
“Our inspections and reviews can be anything from a review of the paperwork to going out to do field oversight to going out and taking samples,” Sweeney said. “We want the LSRP’s to have some fear that DEP can show up today and watch what I’m doing.”
There are two types of audits, Sweeney said. One is conducted by the LSRP board of the individual remediation professionals while another is a technical review by the DEP of the cleanup itself, he said.
“I think it’s clear they don’t understand the processes that are in place,” he said.
The environmental groups have asked for six changes to the program that they say will foster greater accountability on the part of the board and the remediation specialists.
The changes outlined in the letter include:
1. A more efficient auditing process is needed. We ask that the auditing be performed by an independent auditor, who is not affiliated with the NJDEP or the LSRP program. This process should undergo thorough auditing and meet the auditing standards of the Government Accountability Office.
2. A system of checks and balances between the NJDEP and the LSRPs will ensure that audit results are being filed honestly. One way to do this is by creating a system of on-site audits monitored by NJDEP that would verify questionnaire responses. This would include NJDEP performing physical site inspections to audit the work performed by the LSRP, not just a paper process. There should be randomized sampling, quality assurance/quality control and laboratory audits to verify the LSRP work.
3. The lack of public involvement and transparency with the current process can be overcome by establishing a user-friendly website where the public can file complaints against potential threats to human health and the environment resulting from a specific LSRP remediation. Then the names and numbers of LSRPs under “disciplinary review” can be accessible to the public through the website easing the problem of transparency. One successful model that can easily be replicated is the “Confidential Crime Tip Reporting Form” on the U.S. Attorney General’s website. At a recent LSRP board meeting, this subject was discussed. Yet, the board’s opinion was that it is not their responsibility to make it easy for members of the public to file complaints. This mentality reinforces the lack of transparency and fundamental problems that exists in the very heart of the LSRP board members.
4. The disciplinary process is ineffective currently, and sufficiently weaker than every other government disciplinary process. Currently, an LSRP that is audited receives a “satisfactory finding”, is removed for three years from the list of LSRPs to be audited. Instead, they should enter back into the pool, and have the possibility that they may be audited again at anytime, in keeping with every other government auditing process. Allowing the LSRPs to be exempt from the audits gives them a window of unfettered action for three years that is absolutely unacceptable. In addition, any LSRP caught falsifying documents or other major violations must be removed immediately with no grace period, no appeal, and the NJDEP must permanently remove them from the program. Major violations need major ramifications if this process is to have any semblance of effectiveness.
5. LSRPs on the Board should be subject to the requirements and standards of the NJDEP. They are to comply with a strict code of conduct established by statute and regulation and ensure the remediations are protective of human health, safety, and environment. They should be subject to random screening and if caught in violation of a regulation they must immediately be removed from the board as well as from the LSRP as a whole. There should be an independent review committee comprised of NJDEP employees and representatives from the Attorney General’s office to solely screen the LSRPs who serve on the Board. The LSRPs also should be audited yearly while serving on the LSRP Board.
6. All NJDEP Environmental Justice sites and sites where the human health and ecological impact is significant should not be delegated to the LSRPs. NJDEP has already made a verbal commitment that environmental justice sites will not become LSRP sites, but this must be substantiated. This is our most significant concern, since it would undermine many years of effective remedial planning and actions with the relationships built on trust that have developed between the NJDEP and those impacted, underprivileged communities.
Sweeney disputes many of the assertions made by Tittel in the letter, including that DEP officials have represented that environmental justice sites will not be handled by LSRPs.
“The statute says that as of may 2012 all cleanups will be done by LSRPs, so I don’t have the latitude to do what they say even if I wanted to,” he said. “The fact that it is an environmental justice site means I want that to be a quick cleanup and that’s what we are trying to accomplish with the LSRP program.”
Sweeney said the make-up of the LSRP board is also governed by the statute.
The full site remediation act, which includes licensing requirements for the LSRP’s, is scheduled to be implemented by May of 2012.