Dec. 8, 2000

December 8, 2000

PROSECUTOR’S OFFICE CONCLUDES HAMILTON TOWNSHIP

WATER POLLUTION CONTROL FACILITY INVESTIGATION

Trenton-- Mercer County Prosecutor Daniel G. Giaquinto today announced that his office has concluded its investigation into the allegations of chemical waste dumping at the Hamilton Township Water Pollution Control (WPC) facility located on Hobson Avenue. The investigation into the incident has determined that although chemical waste dumping most likely occurred at the facility on two (2) separate occasions—late 1988 to early 1989 and again in October 1991—criminal prosecution of the involved employees at the facility is not warranted. First Assistant Prosecutor Charles E. Waldron, who oversaw the investigation, further recommended to the Prosecutor that presentation to a grand jury was not necessary and that no criminal complaint be authorized.

The Prosecutor stated:

The allegations in this matter were taken extremely seriously not only due to the conduct alleged, but also because of the public’s need to have accurate and complete information regarding any danger posed to the community. Therefore, I entrusted First Assistant Prosecutor Charles E. Waldron to oversee this joint investigation, which was conducted by Assistant Prosecutor Lawrence McGivney and County Detective Captain Kenneth Beckman, of this office, with the assistance of Detective Sgt. Chuck Stanley and other members of the Hamilton Township Police Department, as well as representatives of the New Jersey Department of Environmental Protection (NJDEP) who assisted in the investigation.

The investigative report in this matter was thorough and complete. I am satisfied that the findings of fact are supported by the evidence and the recommendations are consistent with the findings and the state of the law.

I want to assure the public that this investigation was comprehensive, fair and impartial. I have accepted the conclusions and recommendations of the report. The criminal investigation of this matter is closed.

SUMMARY OF THE INVESTIGATION

A. PROCEDURAL STEPS

First Assistant Prosecutor Waldron stated that several hundred hours were spent completing the investigation in this matter. The investigation consisted of the following:

i. Twenty-five individuals interviewed

ii. Review of PMK Testing

iii. Photographing of Scene

iv. Document Review

v. Meetings and Consultation Sessions

B. FINDINGS OF FACT

First Assistant Waldron stated that the investigation revealed the following:

1) The area which was the subject matter of this investigation serves as a storage facility for the Hamilton Township Department of Public Works. Items like construction equipment, piping, sand and stone are typically stored within the property for future use in the township. In the past, the location has served unofficially as a municipal landfill. Many life long residents of the township recall the site being used for dumping refuse. Everything from grass clippings, tires, porcelain and old appliances, as well as various unknown substances, has been buried in the ground over the years.

2) Historically, the Water Pollution Control Plant was operated as a sub-unit within Hamilton Township’s Department of Public Works. Overall responsibility for the plant was in the hands of a director who was assisted by a plant supervisor. Reporting to the plant supervisor were the general supervisor of the collection system, who was responsible for the outside operations (sewers, pump stations, etc.), and the chief plant operator, who was responsible for the inside operation. A number of job specific unit supervisors (usually eight) reported to the collection system supervisor and chief plant operator. These supervisors in turn had a number of laborers and land operators assigned to them to assist in the performance of their respective duties.

3) Information on this matter was received on January 7, 2000 when three long-time employees of the WPC facility reported to Hamilton Township Mayor Glen Gilmore that they were involved in burying between 20-45 barrels in the ground of the WPC on two separate occasions. The workers thought that the 55-gallon barrels contained a mixture of liquids including waste oil, cleaning solvents and pesticides such as DDT.

Based upon the information provided by the WPC workers, the Mercer County Prosecutor’s Environmental Unit, in conjunction with the Hamilton Township Police Department and the NJDEP, initiated a joint investigation into the allegations. As part of the investigation, Hamilton Township contracted with PMK Group, an environmental engineering firm, to conduct soil and groundwater testing. Excavation of the dumpsite and the entire “pipe yard” was performed over a two-week period in February 2000 and resulted in the recovery of 10 decomposed 55-gallon metal barrels.

Once the barrels were recovered, interviews with current and former employees of the WPC were conducted. Numerous books, logs and records were also reviewed and analyzed along with the results of the soil and groundwater tests. The investigation revealed that the now deceased chief plant operator kept a detailed work journal of his daily plant activities. This journal, which could have shed light on areas of interest pertinent to this investigation, was never located. It apparently disappeared from the plant operator’s office shortly after his death.

The investigation determined that on two occasions, the approximate dates of which were late 1988 or early 1989 and again in October 1991, the chief plant operator directed the unit supervisors and a backhoe operator to bury a number of 55-gallon barrels in the pipe yard. The burial of the 55-gallon barrels was called a “special project” by the chief plant operator. At the time, the facility procedure was for the chief plant operator to consult with the facility director on any special projects that the director wanted handled.

INCIDENT 1: LATE 1988 TO EARLY 1989

On the first occasion in which barrels were dumped in the pipe yard, the chief plant operator contacted the unit supervisors and the WPC’s general supervisor of the collection system and directed them to gather their work crews for a special project. A backhoe was allocated for the project. As the chief plant operator directed, the unit supervisors instructed their crews to remove all of the old 55-gallon barrels which had accumulated alongside the maintenance shop and bury them in the pipe yard. The exact number of drums removed on that occasion is not known for certain. However, although they did not recall the exact contents, all of the participants generally agreed that the barrels were partially filled with waste oil, cleaning solvents and pesticides.

Once the drums were moved from the maintenance shop to the pipe yard, the contents of the barrels were spilled into a hole which had been dug by the backhoe. After the barrels were crushed and placed into the ground, the hole was covered and the work completed.

INCIDENT 2: OCTOBER 1991

On the second occasion, the chief plant operator once again directed the unit supervisor to organize a group of workers and remove barrels which had accumulated in the area of the biodisc building. As before, the chief plant operator directed that the barrels be moved to the pipe yard and buried. Once the drums were moved from the maintenance shop to the pipe yard, the contents of the barrels were spilled into a hole, which had again been dug by the backhoe. According to one worker who was interviewed, the barrels, after being crushed, were then hauled away by a scrap metal dealer. This point is refuted, however, by other workers who recall the barrels being placed into the hole and thereafter being covered.

The investigation revealed that on both occasions the work crews and heavy equipment operator had reservations as to the propriety of the assignment. There is no indication that these reservations were ever made known to those higher up in the WPC chain of command. The prevailing opinion at the WPC facility, in the late 1980s to early 1990s, was that the burying of the barrels was not illegal. Further, the laborers at the facility generally felt that to complain or question orders would result in punishment by management.

Interviews of current and former WPC employees also revealed that in the late eighties and early nineties no formal training on the identification, handling or disposal of hazardous substances was given. Neither work crews, unit supervisors nor even the chief plant operator were trained on industry standards or NJDEP rules and regulations. When disposing of the barrels, the workers did not wear protective clothing or masks, nor did they take safety precautions to shield themselves from exposure to the substances.

PMK TESTING

The excavation of the site by PMK revealed 10 decomposed metal 55-gallon barrels which matched the descriptions given by the workers who participated in the dumping. The recovered drums were located in three test pit sites which were designated by PMK as Test Pit 3 (TP-3), Test Pit 7 (TP-7) and Test Pit 1B (TP-1B). After recovering drums from these three locations, PMK secured soil samples and submitted them for analysis. The results of the laboratory analysis were then evaluated against the New Jersey Department of Environmental Protection Soil Cleanup Criteria (SCC) published in the NJDEP Site Remediation Newsletter.

The Soil Cleanup Criteria (SCC) are standards adopted by the New Jersey Department of Environmental Protection which serve as guidelines for determining whether remedial action is warranted when compounds are discovered in the ground. The guidelines set forth threshold levels for various compounds.

TEST PIT 3 (TP-3)

Two partially decomposed drums were excavated from Test Pit 3. The first drum (#1) was filled with a mixture of solid waste and soil. The second drum (#2) was partially decomposed, crushed and empty. Two soil samplings were taken from the site. One sample of soil was drawn directly from drum #1 (TP-3-1) while the second was taken from the area below drum #1 (TP-3-2). The results of the tests performed revealed the following:

1. The laboratory analysis of soil sample TP-3-1 obtained from the contents of drum #1 revealed PCBs, arsenic, chromium, copper, lead, mercury, nickel, selenium and zinc were detected, but the amounts detected were below the guidelines of the New Jersey Department of Environmental Protection’s (NJDEP) Soil Cleanup Criteria.

2. Soil sample TP-3-2, obtained from the soil beneath drum #1, revealed that arsenic, chromium, copper, lead, mercury, nickel, selenium and zinc were detected, but were below the NJDEP Soil Cleanup Criteria. In addition, soil sample TP-3-2 revealed concentrations of benzo(b)fluoranthene and benzo(a)pyrene above the NJDEP Soil Cleanup Criteria. Additional base neutral compounds were detected, however these compounds were below the Soil Cleanup Criteria guidelines.

TEST PIT 7 (TP-7)

Two (2) partially decomposed drums were also excavated from this pit, one of which was filled with a mixture of solid waste and soil. The second was crushed and empty. Two soil samplings were taken from the site, drawn from the first drum and designated (TP-7) and (TP-7D). The results of the tests revealed that the concentrations of the elements found in both soil samplings were below the most stringent NJDEP SCC guidelines. The majority of the elements in this test pit were consistent with those found in Test Pit 3.

TEST PIT 1B (TP-1B)

Six (6) partially decomposed drums were located and excavated from this site. The first drum (#1) was partially crushed with several holes, however it did contain water and a dark colored fluid. A second drum (#2) was located beside #1. It was crushed with several holes and was empty. Drums #3 and #4 were found to be crushed and empty. Drum #5 was decomposed with several holes and cracks and was empty. Drum #6 was also crushed and decomposed, however it contained soil. A sample was collected from the liquid in drum #1 in order to determine its contents. Samples were drawn from the soil beneath drum #2 (SS-1) and drum #5 (SS-2). One sample was drawn from the contents of drum #6 (SS-3).

It should be noted that in addition to garbage, tires and other debris, asbestos-insulated piping was discovered in Test Pit 1B. The results of the tests revealed the following:

1. The soil sample (SS-1) obtained from the soil beneath drums #1 and #2 revealed concentrations of similar elements as found in Test Pits 3 and 7 that were, in some cases, above the NJDEP SCC guidelines and in other cases below the NJDEP SCC. Also found in this soil sample were concentrations of pesticides, PCBs and priority pollutant metals.

2. The soil sample (SS-2) obtained from the soil beneath drum #5 also revealed concentrations of the previously noted elements both above and below the SCC guidelines.

3. The soil sample (SS-3) obtained from drum #6 also revealed concentrations of the previously noted elements both above and below the SCC.

THE REMAINDER OF THE PIPE YARD

In addition to Test Pits 3, 7 and 1B, a comprehensive survey of the entire pipe yard site was also conducted. As a result, a total of 16 additional test pits were excavated inside the lot. Although only three locations yielded barrels, it should be noted that soil samples were also collected from the additional test pits.

The results of the examinations performed on these soil samples were quite revealing. The results showed concentrations of compounds which were also found in Test Pits 3, 7 and 1B.

These compounds were also in excess of the most stringent NJDEP SCC guidelines. Likewise, pesticides and PCB compounds were also detected in the soil, in addition to concentrations of arsenic, chromium, copper, lead, mercury, nickel and zinc. These results would be consistent with widespread dumping at the entire facility over a period of time.

B. CONCLUSIONS DRAWN FROM SOIL TESTING

“The additional samplings from the WPC facility reasonably lead to the conclusion that the soil throughout the entire pipe yard contains concentrations of foreign compounds,” Waldron revealed. He also stated that:

The testing results support the conclusion that the presence of compounds and other pollutants within the pipe yard are not exclusively linked to the burial of the 10 barrels which were the subject matter of this investigation. The evidence in this matter also suggests that the compounds in the soil are consistent with the historic use of the pipe yard as a dumpsite. The data supports the conclusion that the burial of the foreign compounds may have been augmented by the burial of the barrels and their contents but were not the exclusive cause of the contamination.

First Assistant Waldron stressed that in those instances where compounds were in excess of the stringent SCC requirements, the quantities discovered were “not at levels which endangered the community or required immediate remediation.” Waldron also noted that the NJDEP has not yet determined the specific type of clean-up that will be implemented at the site.

C. LEGAL CONCLUSIONS

Prosecutor Giaquinto announced that he has accepted the recommendations of his staff and has decided that criminal charges and further investigation are not warranted for the following reasons:

1) Statutory Law

Both the New Jersey Water Pollution Control Act (N.J.S.A. 58:10A-1 et. seq.) and N.J.S.A. 2C:17-2 prohibit the unlawful discharge of pollutants into the environment. There are no statute of limitations problems associated with either of these laws since N.J.S.A. 2C:1-6b(5) provides that prosecution for such offenses must be commenced within 10 years after the date of discovery of the offense by law enforcement authorities or the N.J.D.E.P. The date of discovery was January 2000.

To prove a violation of the New Jersey Water Pollution Control Act or N.J.S.A. 2C:17-2, the State must establish that the defendant acted in a purposeful, knowing, reckless or negligent manner.

2) Matters of Proof

a) Difficulty in Tracing Contamination to the Barrels

As previously noted, PMK testing revealed compound concentrations throughout the entire pipe yard area of the facility. In addition, this area was historically used as a dumpsite. This would make it difficult to link the pollutants found on site to the burial of the barrels in light of the prior use of the pipe yard. Put simply, the historic use of the pipe yard as a dumpsite makes it extremely difficult to differentiate between prior contamination and contamination due to the barrels.

b) Difficulty in Proving Intent

The investigation also demonstrated that the laborers and unit supervisors were acting pursuant to orders from the chief plant operator who, consistent with the facility procedure in place, may have been acting on the orders or with the knowledge of the plant director. However, the plant director’s involvement or involvement of anyone higher ranking than the chief plant operator cannot be proven. In addition, it appeared that the unit supervisors and laborers who participated in the dumping of barrels may have not been aware that they were violating the law. They had never received formal training on the identification or disposal of hazardous substances. While most of the workers were able to speculate as to the type of substances that may have been mixed into the drums, it appears that none of them had direct knowledge as to the true nature of the liquids contained inside. The fact is that the workers were simply never told what was inside the barrels. They were instructed by the chief plant operator to remove the barrels and to place them into the pipe yard, a location which had been historically used for the disposal of unwanted waste products. This is corroborated by the findings that show the workers did not wear rubber clothes, protective clothing or masks while disposing of the barrels, and at no time were safety precautions taken to shield themselves from exposure to the substances. These omissions are significant because they demonstrate that the laborers and unit supervisors failed to perceive the hazardous nature of the liquids they were handling as well as the risks associated with their release.

Given these facts and under these circumstances, it is unlikely that a jury would find beyond a reasonable doubt that the laborers and unit supervisors had the requisite mental intent to purposely or knowingly violate the law. Likewise, it would be difficult to prove beyond a reasonable doubt that the workers and unit supervisors acted recklessly or in such a manner as to constitute a gross deviation from the standard of conduct that a reasonable person would employ at that time and under similar circumstances.

3) Fundamental Fairness

While it would be argued that the proofs may point to a negligent violation of the Water Pollution Control Act, Prosecutor Giaquinto stated that:

The interests of justice do not warrant prosecution of the laborers and unit supervisors. These individuals were working on orders from the chief plant operator. In all fairness to him, he is not here to defend himself. However, the evidential trail regarding higher-ups stops due to his death and the disappearance of his ledgers. Given these facts and the lack of training and lack of facility protocols, and the fact that this would not have been discovered if the two workers did not come forward, it simply would not be fair to attempt a prosecution against the workers.

Prosecutor Giaquinto further stated:

The public should take heart that although the investigation revealed the facility environmental protocols and compliance were lacking in the late 1980s and early 1990s, in 1993 a regulatory compliance officer was hired. Environmental compliance, education and protocol has improved dramatically since then. In addition, Hamilton Township acted responsibly in this matter by taking immediate and appropriate steps that proved to the public there is no immediate danger or widespread hazard.

AERIAL PHOTOGRAPHS OF HAMILTON TOWNSHIP'S WATER POLLUTION CONTROL FACILITY AND THE "PIPE YARD"