WHO'S WATCHING THE FOX?

Privatization was supposed to help the Massachusetts Department of
Environmental Protection work through a huge backlog of polluted sites. But it
also put polluters in charge of clean-up. Critics say that's like putting the
fox in charge of the hen house.

by Lisa Birk

RUSSELL ENOS FIRST noticed the smell back in 1973. Monday through Friday it was ammonia. Weekends, he smelled camphor, mothballs, odors he couldn't identify -- and rings formed in the bathtub and the toilet. The laundry came out rusty. He talked to his neighbors in Middleborough, where his yard adjoined Rockland Industries, Inc., a Plymouth Street chemical company. They had noticed the same thing. From 1975 to 1978, a handful of neighbors made about five calls each to the Massachusetts Department of Quality Engineering (DEQE). DEQE staff didn't work weekends. By the time someone came to inspect, the smell was gone.

Enos didn't know it, but M. Victor Sylvia, a neighbor a mile away, had also noticed something odd. In 1968, two years after Rockland arrived, all the fish had died in Purchade Brook, which flows through the 50-acre Rockland site into the Taunton River. First the brook trout, then the sunfish, perch, pickerel, and herring. Sylvia complained to the Department of Natural Resources, then to DEQE, which in 1989 became the Department of Environmental Protection (DEP). He didn't get much help. When staff returned phone calls or wrote, Sylvia says, "they played games with words."

Rockland closed in 1980, and the site remained dirty. "But it didn't smell anymore and I had town water," Enos says, so he stopped worrying and concentrated on raising his family.

But while Enos raised his family, DEQE had come out to the site and taken samples of the groundwater, which officials considered to be potential drinking water. Its report, dated February 27, 1980, found at least one sample with trichloroethylene (TCE) at 85,000 parts per billion (ppb). The permissible standard for drinking water, set in 1989, is just five ppb. DEQE also found dichlorobenzene (DCB) at 17,000 ppb. "That would certainly be too high," says Barbara Callahan, senior toxicologist at University Research in New Hampshire.

According to the respected Agency for Toxic Substances and Disease Registry (ATSDR), which documents health effects of various chemicals, long-term exposure to TCE at high levels can cause liver and kidney damage; tumors of the liver, kidneys, lungs, and male sex organs; and possibly leukemia. The agency notes on its Web site that DCB "may reasonably be anticipated to be a carcinogen." Although epidemiology is notoriously complex and most research is conducted on animals rather than on humans, it seems clear that these chemicals are dangerous. TCE, for example, is one of the likely culprits in the cluster of childhood leukemia cases in Woburn. A 1989 study by the environmental firm Hidell-Eyster Technical Services, Inc., confirmed that contaminants including DCB had permeated Rockland's groundwater. Enos didn't hear about either the 1980 or the 1989 study until last year.

In 1985, 17 years after the fish died, 10 years after Enos complained of strange smells, and two years after DEQE launched its first statewide clean-up program, DEQE demanded clean-up "on or before December 15, 1985." It was not the first clean-up order, and it would not be the last. But as of August 2000, 15 years later, Rockland is still dirty.

SOME SAY that's not DEP's fault. Back in the '80s, DEQE was monitoring the clean-up of thousands of polluted sites across Massachusetts, from gas stations to toxic dumps. Site owners funded the process themselves, but they had to get the agency's signoff on every step, from the plan to analyze for contaminants to the cleaning itself. Buried in mountains of paper, state officials couldn't keep up. As a result, the owners of sites like Rockland could avoid cleaning for years and get away with it. DEP had its hands full dealing with cooperative polluters.

All those dirty sites worried environmentalists and DEP staff. And private owners weren't too happy about the lengthy process, which trapped their properties in regulatory limbo. So DEP staffers, public-health professionals, environmental lawyers, environmentalists, clean-up scientists, and industrialists came up with an innovative compromise: privatize most DEP clean-up operations.

In theory, this made some sense: instead of DEP scientists shepherding polluters through the multi-step clean-up process, the polluters' scientists would do the job. That way, DEP's resources -- its budget and staff scientists -- would be freed to tackle the most toxic sites. And the plan appeased the private sector. So in July 1992, Governor William Weld signed into law the redesigned Waste Site Clean-up Program. The new rules went into effect on October 1, 1993.

In practice, however, this created a new problem. Now the polluter doesn't just pay -- the polluter also hires the scientist to determine what needs to be done. That scientist draws up a clean-up plan, and that scientist -- in consultation with the polluter -- decides when enough is enough.

Critics said this was like putting the fox in charge of the hen house. Environmentalists said they wouldn't sign on unless the state created a watchdog. DEP agreed. To ensure that the interest of the polluter -- that is, saving money -- was checked by the state's interest in public health, sites would be subject to DEP auditing. The dirtiest and tardiest sites, called Tier IAs, would even get a DEP site manager with "direct oversight."

Seven years after privatization, clean-up is more efficient, and the DEP says the watchdog is doing a darn good job. During the four years before privatization, the department itself signed off on every aspect of clean-up for 225 sites. In the first four years after the switch, it oversaw the clean-up of 3146 sites to "close-out," meaning it determined that the site poses "no significant risk." Last year, DEP audited 22 percent of all sites, up from 4.2 percent in 1998. Enthusiasts call the Massachusetts DEP a national model. Connecticut adopted a version of privatization. And California is considering it.

BUT IN Massachusetts, not everyone thinks it was such a good idea. Putting the fox in charge of the hen house created groups of concerned neighbors all over the state. And "the promise of privatization to dedicate more resources to the worst sites has not happened," says Matt Wilson, director of the Massachusetts branch of the Toxics Action Center. Sure, the gas stations get cleaned up. "But," says Wilson "the dirtiest sites are still lagging."

He thinks the reason is chronic underbudgeting. For example, he points to a minuscule clean-up budget of $5 million for fiscal year 2000 (FY00), one-fifth of which was targeted for a single Needham site. In 1992, DEP projected that clean-ups in 1997 would cost $25 million. A DEP spokesperson noted that DEP can and does apply for extra funds from the state government: in FY00 the department spent $19 million on clean-up, $14 million more than its original budget. Still, is it enough?

Rockland, classified Tier IA, is exactly the sort of site that was supposed to be targeted when privatization freed the state's resources for the worst cases. But for the past 13 years, seven of them since privatization, Rockland has been stuck in the second phase of the five-phase clean-up process that the state mandates for contaminated sites. (DEP's mandated total timeline for the first four phases is five years, although "complex sites" are allowed more time if any "imminent hazard" is eliminated.) Phase II is just assessment of the hazard -- clean-up doesn't come until Phase IV.

Sylvia and Enos are worried. Last November, groundwater sampling detected DCB at 18,000,000 ppb in one spot. In other words, pure DCB. Puddles of it. Trichlorobenzene (TCB) was found at 200,000,000 ppb. According to the Environmental Protection Agency (EPA), TCB harms the adrenal glands, which produce adrenaline and other hormones. If the contaminants are still so concentrated 19 years after the plant closed, how concentrated were they in 1980? And where did they go?

Chemicals leach into soil and water. What worries some scientists and neighbors is how far the chemicals may have traveled. There are at least seven private drinking wells near the site. None of those wells was tested from 1966, the year Rockland moved in, until this year -- after neighbors pressed DEP to push the Striar family, which owned Rockland and still owns the site. Eventually, DEP paid for the testing. The results came back last week. One well registered trichloroethylene (TCE), one of the very same chemicals DEQE found in 1980, at 13 ppb -- nearly three times the EPA's allowable standard. Drinking small amounts of TCE for long periods may cause liver and kidney damage, nervous-system effects, impaired immune-system function, and impaired fetal development, according to ATSDR.

DEP's southeast section chief, Gerard Martin, notes that testing private wells is not within DEP's purview, that the wells are more than 2500 feet away from the Rockland contamination, and that other pollutants commonly found at Rockland were not found in the wells. But some local residents believe contaminants may migrate from the site to the wells via Purchade Brook, which floods every spring.

Rockland is hardly the only site whose clean-up has fallen far behind schedule. Of 269 Tier IA sites, 121 had made "no progress" in four years, according to a 1998 DEP draft review. And 86 percent of Tier I sites had missed clean-up deadlines.

Enos and Sylvia believe DEP has been more attentive since privatization, but it requires constant citizen pressure. Just to get Rockland fenced off, Sylvia says, "we called them 9999 times." And when citizens do call, Enos says, what do they hear? "They're understaffed. They're underbudgeted." Enos almost feels sorry for DEP staff. "I could spend eight hours a day, seven days a week on Rockland," he says. "This poor man [DEP's site manager] had five sites to keep abreast of." Neighbors confronted DEP's Gerard Martin at an August 1999 public meeting. They asked, What's taking so long?

"Sometimes things fall through the cracks," responded Martin, according to reports of the meeting. Critics say that's just what they're worried about: that with DEP short-staffed, underfunded, and responsible for overseeing the clean-up of more than 8000 contaminated sites, some inevitably will fall through the cracks.

EVEN SITES that draw political attention sometimes take a long time to get cleaned up. In 1991, Senator Ted Kennedy sat in Judy Fittery's rocking chair and called sites like neighboring Rocco's Landfill in Tewksbury "underground Chernobyls." That same year, the federal Environmental Protection Agency (EPA) analyzed Rocco's contaminants. They found dozens -- some as high as 143 to 190 times acceptable limits. The EPA's report notes 23 wells supplying drinking water to 60,166 people in four communities within four miles of Rocco's.

But then the EPA agreed to let the state oversee Rocco's, according to Nancy Smith, the coordinator of the agency's National Priorities List. Rocco's was in DEP hands.

Rocco's, like Rockland, might seem like a site that would have shot to the top of DEP's list when the agency streamlined its priorities. But, as at Rockland, clean-up still lagged. Throughout the 1990s Steve Johnson, a DEP environmental engineer, worked diligently to get the landfill capped. (Fittery wrote Johnson and several DEP officials thank-you notes for their hard work.) Cost? Several million dollars. The owner was dead, so he couldn't pay. Tewksbury couldn't pay. And DEP? There's that clean-up budget -- but, Johnson says, "we have to use it judiciously."

Wilson says that's the problem. "Steve Johnson is a good guy. He tries. But there's no way he has the resources to deal with this stuff," he says. "My point is . . . these are the types of sites that pose public-health risk. These are the sites the state needs to deal with, and it's incapable of doing so."

Eight years later -- despite Johnson's best efforts -- "we still have an unlined, uncapped landfill that is a pollutant," says Tom Carbone, Tewksbury's director of public health.

So what happened? "There was nobody on the responsible-party end and the state didn't catch it," says the EPA's Smith. "Basically, it had fallen through the cracks."

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What you can do * Check your town for hazardous waste sites. Go to www.state.ma.us/dep/bwsc/sitelist.htm. Click on "Searchable Database." Type in your town's name. * Call Toxics Action Center's Matt Wilson to learn how to get involved with a specific site: (617) 747-4389. * Call DEP's help line at the Bureau of Waste Site Clean-up (617-338-2255). Ask DEP to enforce clean-up deadlines. * Call Governor Cellucci's constituent-services line (617-727-6250). Ask him to beef up DEP's budget.

The good news is the feds stepped back in, and the EPA took over the job. Treatment of Rocco's should begin by October.

At Rockland and Rocco's, the polluter failed to assess and clean the site on schedule, and the DEP proved unable to enforce the deadlines. It has an arsenal for enforcement -- audits, penalties, and an independent professional board that can discipline clean-up scientists, or "licensed site professionals" (LSPs) -- but in many cases, it's not enough.

SO THE watchdog agency doesn't have teeth, and the fox romps. If "fox" seems a loaded term, consider this: a 1998 DEP staff survey showed that 65 percent of staffers believed the polluters' scientists were "cutting corners" in the clean-up process. "Eighty percent of [LSPs] are fine," Wilson says. "But a certain segment are potentially compromising their professional standards."

How might they do that? "People who want not to find contamination at their site could try to look in the wrong places or analyze for the wrong chemicals, or use the wrong analysis or sampling method," says David Bass, retired director of technology development at Fluor Daniel GTI.

Cheryl Walsh, a 36-year-old mother of two, knows this firsthand. Over the past year, she fought not one but two hazardous waste sites in Stoneham. Both abut Stoneham Middle School, which her eldest child will attend in the fall.

Her first hazardous waste site, the former Mann Chemical Company site, had been closed out by DEP in 1998. Walsh wanted it reopened so the site could be tested for lead before owner Jeffrey Cataldo excavated and built an office building. (Cataldo was not the polluter, but as the current owner, he was considered "principally responsible" for clean-up.) Cataldo's LSP firm, Levine-Fricke, didn't do the test.

Walsh thought that odd, perhaps dangerous. Lead is notorious for causing learning disabilities, and since 1873 the site had hosted a succession of dirty industries -- including curriers, which prepare hides for market. Before going to the currier, hides were often tanned with lead. Wet hides could have dripped lead into the soil. Lead tests are cheap and not hard to do, according to toxicologist Callahan.

Walsh pushed. She wanted the Priority 13 test, which tests for lead and 12 other heavy metals, or at least the RCRA8 test, which tests for lead and seven metals. The LSP tested for four metals -- not including lead.

The results came back low -- which may indicate that lead was low. But we'll never know. The soil was excavated and the land built on. If there was lead in that soil, the 1999 construction could have kicked it into the air, forcing children at the middle school to inhale it.

According to Alexander Rothchild, a senior associate at Levine-Fricke, the site had received years of intense scrutiny from neighbors, the town, the school, and DEP, including a site-specific DEP audit. It was "managed in a manner which is protective of human health and environment," he said.

When asked, "So you're not worried about lead?" Rothchild responded, "I didn't comment on lead."

BUT WALSH'S second experience shows that when the DEP does get involved, it can make a big difference.

Behind Stoneham Middle School lies an abandoned railroad bed owned by the town. Railroads are often contaminated with arsenic, a known carcinogen, which was used to preserve wooden railroad ties. The town planned to build an elementary school between the middle school and the railroad, which would require digging up the bed. So first the town contracted with an LSP to check the site. The LSP, Weston & Sampson Engineers (WSE), did not test the railroad bed for arsenic.

In January 2000, Walsh and her neighbors convened an emergency meeting and took matters into their own hands. Walsh and her husband -- with the aid of a consulting LSP, a cooler, sample jars, and instructions -- collected samples from the railroad themselves.

On February 1, the town's LSP firm presented its report. It concluded: "Based on future limited access, WSE does not recommend testing within the railroad right-of-way." In other words, it was safe.

Cheryl Walsh stood up with a hot-off-the-fax lab analysis of the railroad samples. Arsenic had come back at 54 parts per million (ppm) -- 14 ppm over DEP's "imminent hazard" level. Within weeks, WSE resigned.

DEP got involved. Scott Greene, the environmental engineer assigned to the case, is "a shining example [of a watchdog]," says Walsh. He's been out to the site, met with neighbors, insisted on high standards. Under DEP oversight, more testing was done. At least one sample came back with arsenic at 550 ppm.

No one from WSE returned phone calls for comment.

THE LESSON of Stoneham's railroad bed is this: when DEP watchdogs a clean-up, and citizens are alert, the system works.

But too often, DEP resources are spread thin, and clean-up falls on the shoulders of citizens.

Go to the homes of Enos and Sylvia in Middleborough or Fittery in Tewksbury or Walsh in Stoneham, and they will hand you grocery bags of documents. Questions are scrawled in the margins. Stick-on notes tab the pages. Neighbors like these have spent nights and Sunday afternoons learning chemistry, law, public health, and clean-up technology. Walsh estimates that she's monitored the two Stoneham sites full time for a year. Sylvia has monitored Rockland for 32 years. "I'm not an expert," says Walsh. "But one of the largest flaws I see [with privatization] is the polluter is paying the expert. You're putting [the site] back in the hands of the polluter." She also worries about DEP overload: "They have too many sites . . . too many that fall through the cracks."

Says Sylvia: "Most DEP people have their arms open, but they need help." But DEP just completed a one-and-a-half-year review of privatization, and nowhere in its surprisingly candid 26 pages does it mention increasing funding. "They had the facts to push for more funding," says Matt Wilson, "and if ever there was an opportunity for them to do it, this [report] would have been it." Wilson, despite his respect for many at DEP, is worried about the cracks in the system.

Because when cases fall through, not every site has a Cheryl Walsh, a Judy Fittery, a Vic Sylvia, or a Russell Enos to catch them.