Bernards Voices

Dear Residents and Neighbors,

Millington Quarry has applied to the DEP for approval of its hired engineer, JM Sorge, to act as a Licensed Site Remediation Professional (“LSRP”) for all future testing of the quarry site. If approved, Sorge would replace the DEP agent currently overseeing testing and fulfill the dual role of agent for the Quarry and DEP. Currently, investigation of the quarry site is conducted under a Memorandum of Agreement (“MOA”) between the quarry owners and the DEP, with a DEP agent overseeing the process and accepting input from interested parties, including the Township, Citizens for a Clean and Safe Millington Quarry (“Citizens”) and the Great Swamp Watershed Association. After considering the input of these interested parties, DEP increased the parameters of the proposed investigation and required further testing of the site–despite Sorge’s representation that the initial investigation was complete. Now, the Quarry seeks to conduct any additional investigation under the LSRP program, thereby minimizing DEP oversight and affected parties’ input. The Township and Citizens have appealed to the DEP Commissioner and Governor’s office for the DEP to retain control of the investigation and not relinquish management to the Quarry and its retained agent. Below we discuss the LSRP program and its inherent problems and Citizens’ appeal to the DEP and Governor’s office. Attached are related documents:
Citizens Ltr to DEP 011211
Bernards Township Quarry letter 121610
MQI LSRP Form

What is the LSRP program? In 2009, Governor Corzine signed the Site Remediation Reform Act, N.J.S.A. 58:10C-1 et. seq. (“SRRA”) and Executive Order #140 implementing the new law, which made sweeping changes to various environmental laws and established a program for the licensing of LSRPs. Under the law, LSRPs would be responsible for overseeing environmental investigation and cleanup. Parties who initiated investigation and remediation before November 3, 2009, which is the case here, are not required to hire a LSRP until 2012; rather, the Quarry would follow the remediation process with traditional DEP oversight and approvals until 2012. This is what the Township and Citizens seek in their appeals. LSRPs must be approved by the newly established LSRP Board. LSRPs are bound by a Code of Ethics, which if violated could subject LSRPs to penalties and suspension or revocation of the LSRP’s license, a stick meant to keep LSRPs honest.

There are obvious concerns about the LSRP program, especially in a case like this one, given MQI’s bad behavior in Bernards Township. Jeff Tittel of the Sierra Club put it this way, “The lessons of the tragic oil spill in the Gulf of Mexico show what happens when government privatizes the environment and public safety, and fails to have oversight – disaster happens. We are concerned that the LSRP program in New Jersey which privatizes toxic cleanups without proper oversight will end up in disaster for the people of New Jersey. Instead of an oil spill we will end up with toxic communities.”

The following portions of the LSRP program reduce oversight:

• Failure to have onsite testing by DEP to make sure sites are clean
• Failure to provide for proper citizen review or involvement in work plants
• Failure to give DEP authority for audits. The DEP can only inspect 10 percent of paperwork
• Licensed Site Remediation Professionals are allowed to submit a Response Action Outcome (RAO). This has been given the same authority as a No Further Action Letter. No Further Action Letters should only be given by state agencies. Extending this authority to private consultants, is allowing consultants to act as agents of the state without oversight from the DEP.

Opinion: NewJerseyNewsroom.com — Your State. Your News. Web. 12 May 2010.

Citizens Appeal: Citizens demonstrate in their letter that:

• Sorge already has failed to comply with the LSRP Code of Ethics by assisting MQI in its misrepresentations made under its MOA application. For instance, MQI/Sorge represented the site as non-residential although its future use is for the construction of 40 or more homes;MQI represented that the site had been used only as a quarry,with no mention of the significant amount of dumping of uninspected fill during its ownership particularly during the period 2006-09; it represented that the fill had been subject to a rigorous inspection which has been proven false; and MQI did not disclose the existence of monitoring wells at the site or propose testing of the groundwater in its MOA.
• Sorge has a Conflict of Interest in Acting as LSRP. Sorge has already demonstrated throughout the investigation that it is acting only in the Quarry’s best interest, not in the public’s. Under the LSRP Code of Ethics, a LSRP’s highest priority is “the protection of public health and safety and the environment.” Additionally, Citizens urge in their letter to the DEP to investigate a report that a principal of Sorge, who referred the Quarry to the Sorge firm, expressed interest to the Township in developing the quarry site. Executive Order #140 expressly recognized the need to insulate an LSRP’s professional judgment from economic pressures to the maximum extent practicable. Development depends on a clean bill of health from the DEP, Citizens point out. In no case is there a greater concern that the LSRP’s professional judgment may be undermined by the economic benefits to the LSRP, or at least one of its principals.
• MQI Has a History of Recalcitrant Behavior. The SRRA requires DEP to retain oversight where the petitioner has a demonstrated history of recalcitrant behavior. Citizens describe the historic pattern of the Quarry owners’ involvement in hazardous waste sites and their numerous actions contrary to the best interests of Bernards Township residents.

Citizens remain committed to our goals–no more dumping in Bernards Township, which we have enjoyed now for over two years, and a clean site left behind for the future. To that end, we have sought the attention of the Governor, our County freeholders and other representatives to help us with this latest hurdle.

Dear Residents and Neighbors,

ICON Engineering, hired by Bernards Township to participate in the fill investigation at the Millington Quarry, submitted to the DEP its findings on the first phase of the investigation which began October 19 and ended December 4, 2009. During the investigation, ICON collected split samples for independent laboratory analysis. In its report, ICON states that Bernards Township “remains extremely concerned with the environmental conditions” at the site. Noting that the investigations are incomplete and much more is required to adequately characterize the quality of the fill, ICON advised that limited soil, surfacewater, and groundwater testing revealed samples with excessive levels of arsenic, lead, aldrin, chlordane and other contaminants.
Analytical results

Based on samples analyzed by ICON,

· 66% (21 of 32 boring locations) contained one or more contaminants exceeding the Residential Direct Contact Soil Remediation Standards (RDCSRS)

· 100% of the samples at the 32 boring locations contained one or more contaminants exceeding the Impact to Groundwater Soil Screening Levels (IGWSSL)

· 84 of the 87 total samples analyzed by ICON contained one or more metals exceeding the IGWSSL

· in Fill Area A* (consisting of @ 3.14 million CY of fill) one or more contaminants exceeded the RDCSRS at 83% (20 of 24) of the boring locations

· 50% of the samples (33 out of 66) in Fill Area A contained various PAH compounds, including benzo(a)pyrene, and one or more other contaminants exceeding the RDCSRS

*The Quarry has designated Fill Areas A, B and C as the areas of imported soils for investigation with the DEP. The Township and CCSMQ have advised the DEP that the investigation must be broader.

View ICON’s full report and test results.

DEP response:

A DEP source advised us that it will wait for the report of JM Sorge (the Quarry’s hired engineer) to determine the requirements for testing in Phase 2, which the DEP expects the Quarry to begin in April. There is no date certain for the Sorge report. The DEP will make no determination on the need for remediation at this time.

Three monitoring wells were installed in December and two more are to be installed for the next round of sampling to obtain additional groundwater results. The DEP advises that we have a long way to go before the investigation is complete.

News articles on this subject:

The Basking Ridge Patch, Feb. 1, 2010 (High arsenic levels and soil contamination found in initial testing at Millington Quarry)

The Bernardsville News, Feb. 5, 2010 (Excess arsenic levels found in Millington quarry water)

–Citizens for a Clean and Safe Millington Quarry

Dear Residents and Neighbors,

Without notice to the Township Committee, the Quarry reportedly advised the DEP that it plans to go forward with its’ own testing plan this week without DEP approval. The Quarry presumably is hoping to gain the DEP’s post-imprimatur for any testing it conducts. The Township learned indirectly of the Quarry’s plans and took prompt steps to ensure that the Township’s specially retained engineer, ICON Engineering, would be on site and conduct testing on our behalf. Quarry attorneys reportedly presented hurdles for ICON to be on site, but undeterred, the Township Committee called an 8:30 a.m. emergency meeting on Saturday morning to discuss retaining ICON Engineering and the parameters for ICON’s testing. View the Township’s press release and decision to retain ICON.

CCSMQ representatives attended the Saturday morning meeting and spoke in support of retaining ICON and in proceeding with an action for a temporary restraining order if ICON were denied access to the site when the Quarry begins testing.

CCSMQ is an apolitical organization comprised of members affiliated with all parties, with its’ only goals to permanently end dumping in our town (recall that we are enjoying only a temporary suspension at this time) and to achieve reliable testing of the quarry site. However, this author is compelled to express disappointment that Bernards Township resident Chris Daggett, a former DEP Commissioner, is a principal in the environmental consulting firm JM Sorge hired by the Quarry to put forth a testing proposal which the DEP deemed insufficient and which CCSMQ and the Township determined, upon evaluation and consultation with experts, was designed to avoid any finding of contamination. We would have hoped that Mr. Daggett, as former DEP Commissioner, would have used his expertise to assist the residents, rather than to allow his firm to assist the Millington Quarry, which has been politely dubbed a “bad corporate citizen” by our Township Committee and earned the Great Swamp Watershed Association’s distinctive “Swampbuster” award in 2008 for risks of environmental contamination the Quarry has presented to the Great Swamp and surrounding environment.

We do not know whether Mr. Daggett has provided personal consultation to the Quarry. But we do know that Millington Quarry, with the assistance of Mr. Daggett’s firm, has cost our Township, i.e., all taxpayers, tremendous resources and continues to do so as the Quarry and their attorneys develop schemes, like using the pending mediation to stall and devise plans to undermine our efforts to achieve real testing. The Quarry’s proposed investigation plan consists of testing the Quarry’s own hand selected piles of dirt (which they designated as Fill Areas A, B and C), limited parameters for testing, no groundwater testing (despite the ability to do so with existing monitoring wells which they failed to disclose to the DEP), no surface water testing, misrepresentations as to the quality of fill and the history of dumping, and a description of the site as “non-residential”–although the Quarry’s Rehabilitation Plan proposes 40-50 homes on the site. This is the plan that Mr. Daggett’s consulting firm has promoted with the DEP.

It is this author’s opinion that Mr. Daggett, through his firm’s support of the Millington Quarry, is on the wrong side for Bernards Township on an issue which is critical to the future of Bernards Township, and determined to be the ‘number one issue facing our town” by Township Committee representatives. Mr. Daggett, as you aspire to lead our state, we welcome you to come over to our side and lead our Township in our battle with the Quarry.

Dear Residents and Neighbors:

In our last communication, we advised that the Township and CCSMQ had responded to the DEP regarding the Quarry’s application for a voluntary investigation of soils the Quarry claims are fill materials imported since 2006 (designated by the Quarry as Fill Areas A, B and C).   The DEP responded to the Quarry’s proposal on July 14, deeming the application insufficient and requiring additional parameters. CCSMQ and the Township believe that even if amended as the DEP requires, the Quarry proposal falls far short of what is necessary to ensure the site is clean.  Primarily, groundwater and surface water should be tested now, and the entire site must be tested prior to development. 

CCSMQ Representatives and Sally Rubin, Executive Director of the Great Swamp Watershed Association, met with the DEP on July 30 to discuss their shared concerns.  The DEP provided some confidence in the process, advising that the Township’s engineer ICON will oversee the investigation on site and retest each sample tested by the Quarry.  Interestingly, Christopher Daggett–Bernards Township resident, Independent Candidate for Governor and former DEP Commissioner–is a principal in the firm J.M. Sorge hired by the Quarry to initiate this DEP application and conduct the investigation.  (The DEP advised that it does not conduct the investigation other than to make occasional site visits and review the test results.) 

The DEP also advised that this stage is a fill characterization of specific soils–a preliminary and not final step to testing the site prior to residential development.  After completing this process, if no remediation is necessary or if any necessary remediation is completed for these three piles of dirt, the Quarry could seek a “no further action” letter for these specified areas but not as to the entire site.

CCSMQ advised the DEP that the Quarry has existing monitoring wells, not revealed by the Quarry, which would allow groundwater testing now.   We are hopeful that the DEP will grant this important request made by the Township, CCSMQ, and GSWA to test groundwater and surface water at this time.

For more important information, read on.

DEP Response to Quarry Proposal:

See the DEP’s response to the Quarry’s proposal MQI Tilcon DEP response July 14.

The DEP requires:

1)  75 soil borings instead of the proposed 25.
 
2)  225 samples v. the Quarry’s proposed 78.  
 
3)  Analysis of all samples for base neutrals, metals, pesticides and PCBs.
Although the DEP did not formally respond to CCSMQ’s letter, they advised that they added our request to test for chromium.  Significantly missing is volatile organics associated with gasoline (and as we know many fill sources were gas stations), emphasizing the need for groundwater testing.

CCSMQ ADVISES DEP OF MISREPRESENTATIONS/MISDEEDS BY QUARRY DEMONSTRATING NEED FOR MORE COMPREHENSIVE TESTING

1) History of dumping:  Documents we shared with the DEP should dispel the Quarry’s longstanding contention that it only imported fill to satisfy the Planning Board’s 2006 requirement to pad the cliffs.  Quarry “dump price lists” date back to at least 2001 and a Sales Agreement between the owner of MQ and Tilcon for the profits derived from importing ”dirt, soils, fill, shale, rock and concrete rubble” (no mention of clean fill) date back to at least 2003.  Moreover, the Quarry admitted importing soils prior to 2006.  Theoretically, the Quarry attorneys may have objected to the PB requirement to pad the cliffs because it did not want its long running, profitable (an estimated 40.5 million since 2006) dumping business to be regulated by the Township and come to end (which is exactly what happened).  This is important because all soils, not just those imported since 2006, must be tested.

2) Quarry assertion that only clean fill has been imported:  Less than 1% of the fill has been tested; fewer than 100 truckloads out of @180,000; only self certifications of truck driver; fill from sites identified on the NJ and NY known contaminated sites lists; 17% failure rate of the small volume tested, etc., all demonstrate the need to test the entire site and the water as soon as possible.

3) Quarry’s assurance to residents that DEP tests water discharged into the Passaic River:  CCSMQ investigated and provided copies to the DEP of the NJDEPS permit which checks for only PHs and solids– further demonstrating the need to test the surface waters for contaminants. It is reasonable that the DEP assumed the permit may have been sufficient for a quarry operation, but certainly not for a landfill, which we believe the DEP, like residents, did not know about.

TOWNSHIP’S RESPONSE TO QUARRY PROPOSAL

For information on the Township’s response, see statements at Bernards Township Committee Press Release MQI Tilcon 09-05-13 and MQI Tilcon DEP response July 14 (following DEP letter).  We anticipate that the Township will continue to pursue more comprehensive testing through the DEP.  The Township must act quickly as testing may begin as early as mid-August.

WHAT IS THE STATUS OF THE LITIGATION AND MEDIATION?

Litigation is on hold while mediation is deemed “active.”  CCSMQ’s concern that the Quarry would not engage in good faith mediation but would use it as a tool to buy time to control testing appears to be true with its’ unilateral DEP application, thereby undermining the Township’s earnest efforts to reach a fair and adequate resolution at this time. 

–CCSMQ

• The Quarry misrepresents the use of the property as nonresidential, fails to disclose that the quarry has been operating as an unlicensed dump and falsely claims that fill has been subject to a vigorous oversight and compliance program.
• The Quarry’s application should be rejected because it undermines the New Jersey Superior Court’s Order that the parties engage in good faith mediation to resolve issues, including testing.
• The Quarry’s proposed Remedial Investigation Work Plan (RIWP) is inadequate for numerous reasons.  The RIWP must require, among other items: (i) a description of environmental conditions of the site; (ii) advanced soil borings to groundwater, not refusal; (iii) a site-wide soil protocol–not testing limited to soils imported since 2006; (iv) a sampling of both the “overburden material” and an existing site drainage pool; (v) characterization of groundwater flow and quality; (vi) sampling of existing wells on-site and construction and testing of additional wells; (vii) groundwater monitoring–the Quarry’s proposal is limited to soils assessment; (viii) a greater amount of samples and a wider range of analytical parameters; and (ix) an environmental impact study if any of the initial sampling detects contamination.   All should be done with Township approval and oversight. 
   

• increase the frequency of proposed borings and analytical samples
• increase the acreage of the quarry included in the sampling
• expand parameters analyzed in the samples
• conduct continuous screening in soil borings
• collect and analyze groundwater and surface water samples
• interact closely with the Township and its professionals to ensure the soil and groundwater is contaminant free
• consider issuance of an Administrative Order assessing penalties for illegal operations and environmental impacts
• meet with the Township and its representatives to discuss remediation of the site