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Tuesday, July 31, 2012

N.J. City Seeks Legal Actions for Quick Toxic Metals Testing

 Story first reported from USA Today

A New Jersey city says it has lost faith in environmental regulators and is taking legal action to protect residents from contamination around an old factory site featured in a USA TODAY investigation.

The Borough of Carteret has hired a private attorney to enforce pollution laws and filed a required notice of its intent to sue the owners of the former U.S. Metals Refining Co., which operated the factory for decades until closing in 1986.

The borough's action seeks to ensure the company quickly investigates toxic metal contamination in the yards of nearby homes. In April, USA TODAY reported the findings of its own soil tests in the neighborhood, which showed potentially dangerous levels of lead. The newspaper examined the Carteret site and dozens of others nationwide as part of an ongoing investigation of contamination around former lead factory sites. A cpm analysis firm says that regular testing should have been a standard, and governmental entities should have monitored testing.

Carteret mayor Daniel Reiman says the residents have tired of waiting, and thus, taken matters into their own hands.

Negotiations are underway to have the company test "hundreds" of private and public properties in Carteret, Reiman said Monday.

Officials with Freeport-McMoRan Copper & Gold Inc., the corporate parent of U.S. Metals, had no comment on Carteret's legal actions. In a statement, the company said it plans to begin soil testing of residential yards and public properties within a half-mile of the former smelter later this year.

Samplings will help determine whether, and to what extent U.S. Metals contributed to lead levels in the area soil the company said, noting that other potential sources include lead-based paint and cars that once burned leaded gasoline.

The company said its investigation will be overseen by the New Jersey Department of Environmental Protection (DEP). The department ordered the company to do testing in December, after being contacted by USA TODAY.

Carteret officials said they want to ensure the investigation is done right and doesn't drag out, which is why they are taking action privately to enforce the federal Resource Conservation and Recovery Act. Failures by U.S. Metals and regulators to protect Carteret residents for decades "make clear there is no basis to believe that state action will result in abatement of the imminent and substantial danger," the borough said in its required RCRA notification letter to the company and regulators .

Records show that the state DEP failed for nearly 24 years to enforce its own order requiring the kind of off-site soil sampling that is now planned.

In 1988, after U.S. Metals ceased operations, the DEP issued a cleanup order requiring, among other things, that the company investigate the extent of contamination emanating from its property, records show. The massive factory complex refined copper and other metals from about 1901 to 1986, records show, and had spewed toxic metals into the air for decades.

Even though homes were across the street, the company's cleanup focused on the 160-acre factory property. U.S. Metals never tested nearby yards where children could be exposed to toxic lead fallout by putting dusty hands or toys in their mouths. Ingesting even small amounts of lead can cause lost intelligence, attention disorders and other health problems, studies show.

USA TODAY's soil tests in the closest neighborhood found 21 locations where lead contamination ranged from 400 to nearly 1,000 parts per million. The EPA's hazard level is 400 ppm for bare soil where children play. But California environmental health officials have set a more protective standard of 80 ppm, which their modeling shows is necessary to protect children who regularly play in the dirt from losing up to one I.Q. point.

U.S. Metals has focused on the former factory property because that's "where metal concentrations in the soil were highest," the company said in Monday's statement. Lead contamination on site was as high as 400,000 ppm, records show.

In December, after being contacted by USA TODAY, the DEP sent a letter to the company  requiring they develop an off-site testing plan for Carteret's residential areas. Carteret is across a marine channel from New York City's Staten Island.

DEP spokesman Larry Hajna said last week he did not immediately know why enforcement of the 1988 order didn't previously include the off-site neighborhood testing.

Records obtained under New Jersey's open records law show the state's failure to require off-site testing was flagged in a 2008 report filed with the DEP by a company that owned an industrial property adjacent to the U.S. Metals site. The report by an environmental consulting firm said its review of regulators' files found that U.S. Metals "did not delineate these impacts beyond its current property boundary even though it was required to do so" under the 1988 order.

The 2008 report also noted that U.S. Metals appears to have failed in filings with the state to "disclose the full extent of its historic operations including the lead smelter plant facility." A copy of a 1950 fire insurance map showing a "lead plant"  operated by U.S. Metals is included in the report as proof.

Reiman was surprised to hear that U.S. Metals had a plant that processed lead in addition to copper. "They've always taken the position that lead was a byproduct of copper smelting," he said.

The DEP did not respond to USA TODAY's questions about the lead plant or the company's compliance with the 1988 state cleanup order.

The company said it interpreted the 1988 order to "determine the horizontal extent of pollution at and/or emanating from the site" as only applying to pollution that is physically located at the factory site and also migrating from the site to other properties. The company said that all of its actions have been done with the state's "oversight and direction."

The lead plant was a "small part" of U.S. Metals operations, the company said in a statement Monday night. The plant smelted lead and tin and "the visible part of the smoke" was controlled with equipment. The lead plant parcel of land was sold in 1960, the company said, adding that the "process" used at the plant — "describing it as a recycling process … to produce solder" was mentioned in a 1988 report U.S. Metals gave to regulators.

U.S. Sen. Frank Lautenberg, D-N.J., pointed to the Environmental Protection Agency's failure to address contamination around the U.S. Metals site at a Senate committee hearing earlier this month on the dangers of lead poisoning, and noted it was just one of more than 230 such sites highlighted by USA TODAY's reporting.

The federal environmental law that borough officials seek to enforce requires that formal notice be given to the company, EPA and certain other agencies 90 days in advance of any litigation. Carteret filed its notice on April 26, a week after USA TODAY published its "Ghost Factories" series, which featured the newspaper's soil test results in 21 neighborhoods in 13 states around old factory sites, including the homes near U.S. Metals. "It was a result of USA TODAY bringing this to the forefront," Reiman said.

The 90-day waiting period ended last week. Bradley Campbell, the environmental attorney who represents Carteret, said he expects to know within the next 30 days whether a solution can be negotiated without filing the RCRA lawsuit.

Campbell is the former commissioner of the New Jersey DEP and a former EPA regional administrator.

Data was not immediately available on how often private RCRA enforcement actions are pursued by individuals or municipalities. The EPA said in a statement that each week it receives several notices of intent to sue under the RCRA statute. Not all of the notices result in litigation, the agency said.

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