A Few Thoughts On The Latest Bear Hunt Lawsuit Decision

November 19th, 2018 No comments

Court Rejects Blatant Political Intervention by Trump US FWS

The NJ Appellate Division on Friday Nov. 16, 2018 issued a decision in the latest round of litigation on the black bear hunt (read the opinion here: NEW JERSEY OUTDOOR ALLIANCE v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION)

I’ve written about that recently, basically arguing that Governor Murphy and DEP Commissioner McCabe are misleading the public by obfuscating and failing to use their regulatory powers that were upheld by the NJ Supreme Court, see: NJ Gov. Murphy Just Effectively Privatized The Black Bear Population

In Friday’s decision, the Appellate Court rejected the hunters’ attempt to bock closure of State lands and upheld DEP’s reliance on “proprietary” powers as landowner to block the bear hunt on state lands.

But the Court agreed in part with the hunters’ “arbitrary & capricious” claims and remanded the case to the Office of Administrative Law (OAL) for a hearing to establish a factual and scientific record.

A few quick thoughts on that.

1. Court rejects over-reach by Trump USFWS

In reading the opinion, I was surprised to learn that the Trump administration’s US Fish and Wildlife Service (USFWS) had intervened aggressively behind the scenes in behalf of the hunters. The hunters then used this intervention in their legal challenge.

In a threat to withhold federal funds – a rarely used and very hostile bureaucratic move – the USFWS directed the DFW to review federal grant documents in order to ensure that federal grant moneys for wildlife restoration were not being diverted. This is the first step in the process under federal regulations to withhold federal funds.

The USFWS sent a letter to the NJ DFW, a transparent end run around DEP Commissioner McCabe.

Worse, it appears that USFWS mistakenly believes that NJ DFW is exclusively in charge and the federal law “assigns such authority singularly” to NJ DFW (not the DEP).

Based on that US FWS directive, the hunters’ lawsuit argued that DEP Commissioner McCabe’s Order violated federal law:

AO 2018-34 usurps federal law under the Pittman-Robertson Wildlife Restoration Act (“P-R Act”), 16 U.S.C. § 669-669k, which assigns such authority singularly to the DEP’s Division of Fish and Wildlife (“DFW”) ….

In support of those claims, appellants point to correspondence between the DEP and the United States Fish and Wildlife Service (“USFWS”), in which the federal agency advised the DFW to review grant documents in order to ensure federal grant moneys for wildlife restoration were not being misapplied as the result of EO 34.

That is an astonishing political maneuver by US FWS to promote hunting and undermine the policy and power of a State Governor. For a so called “conservative” Trump administration to run roughshod over States is deeply hypocritical.

And it provides more evidence of the Trump administration’s reckless pro-hunting policy.

Thankfully, the Court rejected those political games.

2. Court repeatedly cites DEP’s regulatory power over DFW

As I previously wrote, the DEP has regulatory power that is superior to the NJ Division of Fish and Wildlife. Specifically, as recognized by the NJ Supreme Court, the DEP sets the overall bear hunt policy that DFW must follow. The Appellate Court restated this several times:

Subject to the approval of the Commissioner of the Department of Environmental Protection (“DEP”), the State Fish and Game Council (“Council”) is empowered to “formulate comprehensive policies for the protection and propagation of fish, birds, and game animals,” “for the propagation and distribution of food fish,” and “for the keeping up of the supply thereof in the waters to the State. (N.J.S.A. 13:1B-28.)

Gov. Murphy and DEP Commissioner McCabe need to read this – they continue to ignore their legal power to set final policy on the bear hunt.

3. DEP’s reliance on “proprietary” power – instead of regulatory power – establishes dangerous precedent

The DEP relied on the State’s and DEP “proprietary” powers as land owner, instead of their regulatory power delegated by the Legislature and their public trust obligations to manage wildlife.

The Court basically ruled that DEP could act as they pleased with respect to State lands and do so with no procedural safeguards or public input.

This is a dangerous and bad idea.

The management of public lands and wildlife is NOT “proprietary”. Public resources must be managed democratically and subject to transparent and participatory processes. The public’s opinions must be considered.

For example, can DEP now assert “proprietary powers” and decide to log state forests and do so without even holding a public hearing? 

Can DEP manage parks, e.g. expand private concessions, commercially develop, or even privatize State Parks, with no public input?

The Court seems to approve of that.

4. Court’s remand to OAL misconstrues science versus policy

The hunters argued that the DEP Order was “arbitrary and capricious”.

The Court partially agreed and remanded the case to the OAL:

That neutral quasi-judicial forum shall address the hotly-disputed and fact-dependent claims that the closure is arbitrary and capricious, conflicts with the scientific underpinnings of the CBBMP, and imperils public safety.

The Court misconstrues the relationship between science and public policy and ignores the legal fact that DEP is in charge of policy.

This is shocking, given that the Court cited the Comprehensive Black Bear Management Plan and its policy objectives, especially the concept of “cultural carrying capacity”

DFW’s active, integrated bear management strategy is effective and essential for maintaining bears at a density that provides for a sustainable population within suitable bear habitat, minimizes human-bear conflicts and reduces emigration of bears to unsuitable habitat in suburban and urban areas. The black bear population in New Jersey is beginning to stabilize at a level that DFW believes is consistent with the cultural carrying capacity for this species in the state. 

“Cultural carrying capacity” is not limited to a scientific basis, it is a public policy concept: (definition)

In habitats near humans, the biological carrying capacity can sometimes support more black bears than humans in the area are willing to tolerate. This number, which is often less than the biological carrying capacity, is called the cultural carrying capacity.

As the NJ Supreme Court has recognized, the Legislature has delegated power so that DEP is “the decider” on policy issues governing the bear hunt.

Public policy should be based, in part, on the best available science, but is a far broader field than science.

That means that DEP decisions don’t have to be exclusively and narrowly “fact dependent” – they can reflect public values and public policy objectives that transcend science.

That means that the “scientific underpinnings of the CCBBMP” are not controlling – DEP may inject other wildlife conservation concepts  – including animal rights – and other public policy and ethical values.

Let’s hope DEP and the Attorney General can explain these concepts to the OAL judge that hears the case on remand.

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From The Rooftops Of New Orleans To Paradise: Climate Chaos In Walmart Nation

November 16th, 2018 No comments
Tent City, survivors of Paradise Lost (Source: Karl Mondon/Bay Area News Group)

Tent City, survivors of Paradise Lost – Visual Metaphor of our times
(Source: Karl Mondon/Bay Area News Group)

Sorry, I lack the words. My thoughts are a jumble of ideas, visual images, and absurd metaphors. [Update: 11/19/18 – NY Times takes a tepid look, notes reliance on “the kindness of strangers”]

And I thought we were all merely Climate Refugees and that the Dust Bowl was an apt metaphor. Looks like I undershot by orders of magnitude, not imagining incineration by wildfire.

dbowl1

After having been on the road now for 18 months, one thing I am sure of and can assure you is that there is far more dignity in individual roadside truck camping than in a degrading mass stranding in a Walmart parking lot with elderly and infirm people suffering with little organized government response.

I’m having a really tough time getting my head around the surreal reality of a place called Paradise (as in “Lost” and “They paved paradise and put up a parking lot”) incinerated by a wildfire called “Camp Fire” (why not “Wire Fire” for the real PG&E’s cause?) and the mostly old and infirm survivors holed up in a Walmart parking lot, passively and gladly accepting charity from private citizens, while government seems AWOL and having a tough time with basics, like keeping track of people (e.g. the missing list just underwent a 5 fold expansion).

Not surprisingly, there is little media reporting of the climate chaos causes of the fire – a striking contrast with the feeding frenzy on Trump’s “mismanagement” tweets and the myths about “excessive fuels buildup”,  the need for”forest thinning” and blaming radical environmentalists for blocking “forest management” (logging) (Sect. Interior Zinke even called enviro’s “terrorists”.).

And there’s been no coverage of the liability bailout of PG&E just so recently passed by the Democratic Party controlled Californian Legislature and signed into law by “progressive” Gov. Jerry Brown

BBC reported this morning a surprising lack of anger or resentment, just positivity.

Glad I absorb this suffering exclusively on the radio, and have not been exposed to what must be barbaric Tee Vee visuals.

The visual metaphors I am imagining are an absurd melange of people stranded on NoLA rooftops to old folks hunkered down in tents at Walmart.

How sick can it get? Welcome to Walmart Nation (TM)

Am I the only one that imagines these continuities? Is it Surrealism or DADA?

Will we perish by a Bang, or a Walmart whimper? (Cascade’s wilderness fire)

DSC3852

On the positive side, good on all those kids pushing Pelosi – and now Frank Pallone – for a Green New Deal.

Keep Hope Alive!

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Elite Charade In Spades: Failed Coastal And Planning Groups Dodge Accountability For Their Collaboration With Gov. Christie’s “Rebuild Madness”

November 14th, 2018 No comments

The master’s tools will never dismantle the master’s house. ~~~ Audre Lorde

[Update below]

Today, NJ Spotlight reports that Despite Superstorm Sandy, Building in Risky Flood Zones Continues Unabated:

Superstorm Sandy wiped out thousands of homes at the Jersey Shore, but the increasing threat of devastating coastal storms like it has hardly deterred building in areas most at risk of chronic flooding as sea levels rise from climate change, according to a new analysis.

Confirming exactly the troubling Foundation driven news sourcing I wrote about just yesterday, Spotlight quotes sources from Foundation funded groups American Littoral Society and NJ Future:

“Overall, we only are half-paying attention to the lessons of Sandy,’’ said Tim Dillingham, executive director of the American Littoral Society, a coastal advocacy group. “For the most part, the decision was to stay put and live with the risk. We simply don’t want to face up to the actual degree of risk of building along the Shore.’’ …

“We haven’t gotten the message,’’ said David Kutner, planning manager for New Jersey Future, a smart-growth organization. “We have this cultural and unchangeable connection to the Jersey Shore. The threats to properties are enormous. It is going take some time to get to the point where we can’t keep building at the same intensity at the Shore.’’

Notice how Dillingham of ALS and Kutner of NJF both deploy the word “we”. We my ass!

Note how Dillingham uses the passive voice, as if there were no decisionmaker and government policy had no role in those irresponsible decisions: “the decision was to stay put and live with the risk“. Whose decisions?

That kind of evasive disingenuous rhetoric is no accident.

It is designed to obscure their own failed involvement in the problem and to dodge tough political accountability that might threaten their organization’s funding.

Specifically, both ALS and NJF not only failed to hold the Christie administration accountable for the policies that denied climate change and led to even more development in risky flood prone areas, both groups also received funding from the Christie administration to promote ineffective voluntary local “coastal resilience’ projects. (A Sham Charade identical in design to DEP’s outsourced, voluntary, private, grant fueled “Sustainable NJ” program)

(ALS’ most recent financial statement shows they received over $1.2 million in government grants, more than 20 TIMES the revenue they got from members. That is NOT an indicator of a democratic organization. No wonder ALS never bites the government hand that feeds them. ALS ED Dillingham was paid almost $117,000, which likely puts him in second place in the career compensation money game behind NJ Audubon CEO Eric Stiles, who brought down $126,000 in salary alone. The private sector corporate careerist greed is manifest in the Foundation world too. )

Those local, voluntary and politically safe “resilience” projects have failed miserably, as the Spotlight story and Report document.

In exchange for that Christie administration funding, ALS and NJ Future distracted the press and the public from Christie’s policy failures (e.g. provided political cover) and undermined more effective DEP Statewide regulatory solutions and new legislation to create a regional Coastal Commission.

I don’t know who Dillingham and Kutner are referring to as “we”. Not me. We called out Christie “rebuild madness” from day 1. (see:

Also compare how we speak about these issues in prior Spotlight stories:

“Restoring basic public infrastructure will be a critical first step toward the recovery of our cities and towns,’’ [DEP Commissioner] Martin said. “For emergency repairs, we cannot let bureaucracy get in the way. Red tape should not and will not hold up this vital work.’’ […]

“The [Martin] order amounts to a total abdication of DEP’s responsibility to supervise responsible planning and environmentally sound permitting of critical public infrastructure,’’ said Bill Wolfe, director of the New Jersey chapter of Public Employees for Environmental Responsibility, a public watchdog group

ALS & NJF Provide A Classic Example of The “Elite Charade”

Writer Anand Giridharadas’ groundbreaking investigative book “Winners Take All – The Elite Charade of Changing the World” documents how elite philanthropists and private foundations have hijacked real social change and engaged in a corrupt enterprise.

I wrote a post back in August, based only on a radio interview, see: “The Elite Charade” – Philanthropic Foundation Fail. I’ve since read the book.

Elites engage in this charade by avoiding conflict or taking personal or career risks, and not calling for sacrifices like increased taxes, lower corporate profits, or more regulation. Elites evade politics and efforts to hold corporations accountable.

Instead, they push fake self serving private market based “win-win” solutions to public policy problems. The fake solutions not only fail, but at the same time they undermine democracy, constrain and replace government’s role, and perpetuate their elite advantage by locking in the status quo. Welcome to “MarketWorld”.

He writes:

when elites assume leadership of social change, they are able to reshape what social change is — above all, to present it as something that should never threaten winners.

Ironically and hypocritically, the same elites that create social problems by hoarding wealth, increasing inequality, and attacking government regulatory intervention and redistribution policies, feel that they are best suited to solve the very problems they create:

when elites put themselves in the vanguard of social change, it not only fails to make things better, but also serves to keep things as they are. [That] takes the edge off some of the public’s anger at being excluded from [economic] progress. It improves the image of the winners. With its private and voluntary half measures, it crowds out public solutions that would solve problems for everyone…. We should recall Oscar Wilde’s words about such elite helpfulness being “not a solution” but “an aggravation of the difficulty…. Just as the worst slave owners were those who were kind to their slaves, and so prevented the horror of the system being realized by those who suffered from it, so in the present state of things ..the people who do the most harm are the people who try to do most good.”

The late emminent Princeton University political theorist Sheldon Wolin predicted all this is his classic early 1980’s essay written just after the Reagan administration assumed power: “The New Public Philosophy”:

What can hardly be doubted is that economics now dominates public discourse. It is now common practice to rely upon economic categories to supply the terms of discussion in legislatures, bureaucracies, and mass media; to frame the alternatives in virtually every sphere of public activity, from health care, social welfare, and education to weapons systems, environmental protection, and scientific research; and to function as a sort of common currency into which all problems have first to be converted before they are ready for “decision making.” “The methodology of public choice,” according to one standard account, “is that of economics.” Lester Thurow’s way of posing the problem of “environmentalism” is a representative example of the faith that practically any public concern can be reduced to economic categories. “Environmentalism,” he as- serts, “is not ethical values pitted against economic values. It is thoroughly economic.” Economics thus becomes the paradigm of what public reason should be. It prescribes the form that “problems” have to be given before they can be acted upon, the kinds of “choices” that exist, and the meaning of “rationality.”

Wolin not only predicted the dominance of economics and markets over government regulation, he also clearly saw the rise of the “Elite Charade”: the kind of fake solutions that protect the status quo provided by ALS and NJF. In closing that essay, Wolin wrote:

In their fury over welfare, abortion, sex, women’s rights, and school prayers, they furnish a substitute for politics, replete with solidarity, a sense of community, and a glow of moral superiority. And they leave the entire structure of power, inequality, hopelessness, and growing repression wholly untouched.

ALS and NJ Future make sure that NJ’s coastal and climate policies, coastal development patterns, and the economic and political power of the builders and bankers remain “wholly untouched”.

[Update: Read the book review by Jospeph Stiglitz – he gets it and writes it far better than I:

Like the dieter who would rather do anything to lose weight than actually eat less, this business elite would save the world through social impact investing, entrepreneurship, sustainable capitalism, philanthro-capitalism, artificial intelligence, market-driven solutions. They would fund a million of these buzzwordy programs rather than fundamentally question the rules of the game — or even alter their own behavior to reduce the harm of the existing distorted, inefficient and unfair rules. Doing the right thing — and moving away from their win-win mentality — would involve real sacrifice; instead, it’s easier to focus on their pet projects and initiatives. As Giridharadas puts it, people wanted to do “virtuous side projects instead of doing their day jobs more honorably.” …

At Davos and the other international conclaves where the muckety-mucks celebrate the new economic world they have helped create, which has rewarded them so amply, corporate leaders move seamlessly from sessions discussing the risks of climate change, growing inequality and financial instability, to dinners at which they praise tax cuts for billionaires and corporations and applaud proposals for deregulation. They conveniently don’t mention the increases in taxes on a majority of those in the middle, the Republican moves to eliminate health insurance for some 13 million in a country where life expectancy is already in decline, the increase in pollution, the risk of another financial crisis, the ever increasing evidence of moral turpitude — whether it’s Wells Fargo cheating its customers or Volkswagen cheating on its emission tests. Cognitive dissonance is intrinsic to MarketWorld.

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Elephants Around The Roundtable

November 13th, 2018 No comments

News coverage of drinking water risks is highly misleading

Risks of hundreds of unregulated chemicals and role of Dupont ignored

Murphy DEP gets false praise and a huge pass on longstanding regulatory failures

Let’s hope that one of the “expert” panelists at the upcoming NJ Spotlight PFAS Roundtable raises these issues.

Part 1: Troubling Linkage of News, Roundtables, and Sponsors

NJ Spotlight just announced another “Roundtable”, which will focus on the class of toxic chemical compounds dubbed “PFAS” (see registration information)

Join NJ Spotlight as we bring together experts to discuss the public health and policy challenges presented by PFAS, a class of chemicals that is linked to cancer and other illnesses.

Following a disturbing pattern, the Roundtable (free this time), follows a series of Spotlight news reports on the risks of PFAS, thereby linking news coverage of an issue to “by invitation” “expert” policy roundtables. This approach obliterates traditional lines of journalism and public policy development.

Of course these news – roundtable issue linkages tend to: 1) define the salient issues, 2) delimit the causes of the problem, 3) target the good guys and bad guys, 4) flesh out the scope of feasible solutions, and 5) limit the voices and perspectives of those qualified to participate in the discussion and advocate credible science based policy solutions.

In effect, NJ Spotlight is assuming the role of “honest broker” and “gatekeeper” in a way that shapes public perception and government’s role and responsibility.

Those are awesome powers – far beyond traditional journalism’s package of news reporting and editorial advocacy.

At worst, when those powers are combined with private elite foundation funding, they become anti-democratic, fundraising oriented, and essentially usurp governmental obligations (see: “Elite Charade”).

Spotlight’s tendency to cover issue – roundtable topics that impact their financial sponsors creates a tension, if not a public appearance of conflicts of interest.

Similarly, NJ Spotlight’s tendency to invite “expert” panelists – almost always moderate “safe” voices that do not threaten corporate interests or criticize government or powerful politicians – that are employed by environmental organizations that are funded by the same Spotlight Foundation sponsors is deeply anti-democratic, biased and creates an appearance of a self serving form of pay-to-play journalism.

This entire approach displaces and undermines effective government regulation, while tending to limit policy solutions to private, voluntary, market based tools and “win-win” “feel good measures” (e.g. see: NJ Spotlight Drinks Penn Foundation Kool-Aid)

For example, Wm. Penn and Dodge Foundation fund NJ environmental groups that work on issues and share a moderate, market oriented – as opposed to government regulation – perspective. Individuals from those organizations get quoted in NJ Spotlight stories and then invited to appear as “expert” panelists.

The most recent PFAS Roundtable is a good example of these flaws.

Part 2: Good News On PFAS Highly Misleading

As NJ Spotlight has written several times, the NJ Drinking Water Quality Institute (DWQI) recently made scientific recommendations and the Department of Environmental Protection (DEP)  adopted what are known as “Maximum Contaminant Levels (MCL’s) to regulate some previously unregulated PFAS compounds in drinking water.

No doubt, that is good news – but an exclusive narrow focus on PFAS creates a highly misleading and false impression that the DWQI and DEP are aggressively protecting public health with strict regulatory standards.

Part 3: 500 Unregulated Chemicals Ignored

For context that exposes this falsehood, consider that in April 2010, DEP issued a scientific Report that found that there are over 500 unregulated chemicals in NJ drinking water, and that there are currently available treatment technologies to remove these chemicals at low cost, see:

This project evaluated the health effects information available on the TICs identified in the above study. Most were present below 1 ug/L. Toxicology data of any type was only available for 22% of the 524 chemicals evaluated. For many of these 22%, only acute toxicity information was available, and such acute data are not suitable for development of chronic health-based drinking water levels. Information which could be used to develop chronic drinking water concentrations was available for only a small fraction of the TICs. The results of this study suggest that chemical-by-chemical health risk assessment is not a feasible approach for addressing the many unregulated contaminants found at low concentrations in drinking water.

Based on this DEP scientific Report, we petitioned the Christie DEP:

for DEP rules to require disclosure, monitoring, treatment, and fee schedule to fully fund controls on currently unregulated drinking water contaminants.

The petition was denied and since then, DEP has done absolutely nothing to address the major scientific, policy and regulatory flaws documented in their 2010 Report.

We broke that major story and laid it all out in the PEER Report:

Trenton — New Jersey should filter its drinking water to remove hundreds of chemicals, most of which are unregulated, from its drinking water supply, according to a rulemaking petition filed today by Public Employees for Environmental Responsibility (PEER). The plan to screen many chemicals out of tap water was actually developed by the state Department of Environmental Protection (DEP) but has been in limbo for the last six years.

Those issues all were ignored by the media.

It is beyond curious that of the HUNDREDS of unregulated toxic chemicals DEP found in NJ drinking water – along with the collapse of the DWQINJ Spotlight (and sponsors elite Wm. Penn & Dodge Foundations) focus exclusively on the SINGLE chemical that NJ DEP & DWQI effectively regulate.

But that’s not the only major drinking water issue ignored by the singular and misleading focus on the good news about DEP regulation of PFAS compounds.

Part 4: DUPONT Is A Very Big Elephant In The Room

The Spotlight coverage and Roundtable also ignore the role of DUPONT.

That’s like writing about lung cancer without mentioning cigarettes & how Big Tobacco lied about science. DUPONT suppressed PFAS science, misled regulators & put corporate profits before public health.

Spotlight has covered the PFAS/PFOA issue many times in the last few years. I have not inventoried them all, but   just this year, (2018) they have written 9 stories: see this, and this and this and this and this and this and this and this and this.

In 2017, Spotlight was a DEP cheerleader and DWQI fan. A role that goes way back to 2011.

Remarkably, not one story mentioned DUPONT, the NJ based polluter of PFAS compounds.

Dupont is the focal point of an explosion of investigative reporting. Here’s what the national coverage looks like on DUPONT and PFAS/PFOA compounds.

The NY Times wrote a major investigative  piece exposing Dupont’s abuses, scientific fraud, and crimes:

The story began in 1951, when DuPont started purchasing PFOA (which the company refers to as C8) from 3M for use in the manufacturing of Teflon. 3M invented PFOA just four years earlier; it was used to keep coatings like Teflon from clumping during production. Though PFOA was not classified by the government as a hazardous substance, 3M sent DuPont recommendations on how to dispose of it. It was to be incinerated or sent to chemical-waste facilities. DuPont’s own instructions specified that it was not to be flushed into surface water or sewers. But over the decades that followed, DuPont pumped hundreds of thousands of pounds of PFOA powder through the outfall pipes of the Parkersburg facility into the Ohio River. The company dumped 7,100 tons of PFOA-laced sludge into ‘‘digestion ponds’’: open, unlined pits on the Washington Works property, from which the chemical could seep straight into the ground. PFOA entered the local water table, which supplied drinking water to the communities of Parkersburg, Vienna, Little Hocking and Lubeck — more than 100,000 people in all.

The Intercept wrote:

The history of PFAS compounds has mostly revolved around DuPont. That giant company also knew for decades that PFOA was escaping its plant, leaching into nearby drinking water, accumulating in the blood of its workers, and harming animals tested in its own labs. Since 2004, DuPont has paid more than $1 billion in class-action litigation and several related suits filed by people living near its plant in Parkersburg, West Virginia — and faced massive public outrage over its actions.

To the extent that 3M has come up in coverage of the fast-growing PFAS story, it’s largely been as a footnote — and a foil. 3M was the company that invented PFOA and sold the toxic stuff to DuPont, whose corporate image was besmirched by the news of its deceptions around PFOA. DuPont has also faced a firestorm of protest over GenX, its similarly toxicreplacement for PFOA. …

3M would continue to sell PFOA to DuPont for more than four decades. Starting in the early 1950s, the company also made PFOS, a closely related compound that wound up in hundreds of products, including the company’s own Scotchgard fabric protector, which, by the end of the 1950s, was being applied to both upholstery and clothing; and firefighting foam that 3M provided exclusively to the U.S. military for decades. 3M went on to market some of these its fluorochemical products as “the solution for your problems.”

Yet not one word about this from NJ Spotlight.

Spotlight also ignored DUPONT is their coverage of the State fracking ban legislation – a bill that was targeted on and would apply only to DUPONT’s Deepwater facility – as well as DRBC regulation. Despite being a major toxic water polluter discharging to the Delaware River, DUPONT was ignored in coverage of fish consumption advisories, including those in Delaware Bay that can be traced to back to Dupont pollution. DUPONT was mentioned just once in Spotlight’s coverage of one aspect of the fracking ban issue.

Part 5: Collapse of Drinking Water Quality Institute Forgotten

But it’s not only 500+ unregulated chemicals in NJ drinking water and the role of DUPONT that are ignored by NJ Spotlight.

Despite the fact that Spotlight previously covered aspects of the Christie administration’s dismantling of the DWQI, they seem to have forgotten all that and dropped it from their coverage. Of course, this gives the Murphy DEP a huge pass.

Part 6: Prior DWQI Recommendations For 14 Stricter Standards for Carcinogens Ignored

And they also forget the fact that the DWQI has made recommendations to adopt lower MCL’s for about 14 carcinogenic chemicals that DEP has simply just ignored.

Part 7: NJ Residents Drink Recycled Sewage

And Spotlight never even covered the fact that, in the Passaic basin, drinking water sourced from the Passaic River is a toxic stew – during summer dry season, up to 95% of the flow of the river is from sewage treatment plants, see this:

NJ residents are not aware of this startling fact, in part because the media fails to cover the story – with a few one off exceptions by NJ Spotlight and the Bergen Record.

Part 8: DEP Standards Are Lax

I could go on and describe addition issues where drinking water risks are not properly reported and where DEP has failed to effectively regulate known risks.

The two most recent are related news reports about high levels of  cancer causing “disinfectant byproducts” in Newark’s drinking water and a scientific study by the Philadelphia Academy of Natural Sciences that shows that NJ DEP’s water quality standards for phosphorus are weak and need to be lowered.

These stories are related and both point to major flaws in NJ DEP regulations. The press failed to connect the dots, and so did the “expert” from NRDC, who falsely claimed that source of the high organic content of source water is “leaves”, not algae.

As shown by the Philadelphia Academy study, excessive phosphorus levels drive excessive growth of algae, a process known as eutrophication. When used for water supply, the excessive algae must then be treated at a drinking water plant, which creates the cancerous disinfection byproducts found in Newark’s water.

In 2002, in a project I was closely involved with, the NJ DEP began to impose strict limits on sewage treatment plant discharges of phosphorus, but that effort was derailed by the Corzine administration.

Ironically, most of the scientific work for that DEP effort was done by Tom Belton, who retired from DEP and conducted the current Philadelphia Academy study. Ironic because, while at DEP, Belton allowed his work to support an “exit ramp” to provide relief from stricter phosphorus effluent limits. The original narrowly tailor “exit ramp” exception became a huge “bypass” rule, based on Belton’s work.

Part 9: What Ever Happened To the DEP “Source Water Protection Program”?

And finally, while were talking about source water, there has been zero reporting on the failed DEP “Source Water Assessment Program” (SWAP).

That program required every public water supply system in NJ to, among other things, inventory all pollution threats to drinking water supply sources – including from unregulated chemicals from toxic waste sites and landfill – and the vulnerability of the drinking water sources to those pollution threats.

Common sense would suggest that once a threat was identified, then DEP would require that local water systems take s steps to prevent pollution and protect public health.

For example, if a SWAP investigation found that a landfill or toxic waste site polluted groundwater with unregulated chemical X, and that it would take 10 years for chemical X to migrate through groundwater into the local water supply well field, then the local water system would be required to monitor to detect chemical X and treat for it if it was detected in source water.

But DEP – despite knowing that unregulated toxic chemicals are migrating to public water supplies – does absolutely nothing to prevent contamination.

And the public nows nothing at all about all that.

So, next time you read a NJ Spotlight story that makes DEP appear to be an aggressive regulator and protector of drinking water, think again.

Part 10 – They Want To Privatize Your Local Drinking Water System

(Text and links forthcoming)

Let’s hope that one of the “expert” panelists at the upcoming Spotlight PFAS Roundtable raises these issues.

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Court Rejects Christie DEP’s Privatization Of Regulatory Responsibilities

November 5th, 2018 No comments

Court Rejects DEP Privatization of Radon Protections

Court Blocks DEP Enforcement of “Guidance” Documents

Decision Has Huge Implications For Many Privatized Programs, Including Toxic Vapor Mitigation

NJ Spotlight reports today that a NJ Appellate Court decision rejected the Christie DEP’s policy of privatization of regulatory responsibilities, with respect to radon gas mitigation systems, see:

COURT FAULTS DEP IN CHANGES TO RADON RULES

A state appeals court has faulted the Department of Environmental Protection for improperly revising rules on how it oversees companies that test for radon in homes, finding that, in essence, the DEP handed over some of its regulatory functions to firms it oversees. …

Delegating regulatory functions

“In effect, what the DEP appears to be doing, is to delegate its own regulatory functions to a private entity as, in effect, a junior partner,’’ (sic – the Court actually wrote “junior regulator”) the court said. “That delegation of a regulatory responsibility is not permissible under the law. …

Absent statutory authority, there can be no such delegation. ‘This is especially true when the agency attempts to subdelegate to a private person or entity, since such person or entity is not subject to public accountability.'” (citations omitted)).’’

Importantly, the Spotlight story failed to explain that the Court, in applying the NJ Supreme Court’s Metromedia” decision, also rejected DEP’s enforcement of a “Guidance Document” in the absence of rule making. The Appellate Court wrote:

As we now explain, both the DEP’s imposition of liability upon RDI for the conduct of “affiliates,” and certain mandates for QA/QC plans as set forth in a Guidance Document, meet these Metromedia criteria. Formal rulemaking as to these matters was required, but not performed.

I’ve explained and applied that doctrine and recently written about how the DEP’s forest “stewardship” program violates the NJ Supreme Court’s  Metromedia doctrine, (hit link for that).

Perhaps most significantly, as I’ve written here several times, the Christie DEP has outsourced Climate Change Mitigation (i.e. GHG emissions reductions) and Adaptation programs to private groups, including NJ Future and Sustainable NJ. The private group NJ Future even got funded by the Christie DEP to prepare a secret plan to privatize Liberty State Park, the crown jewel of the State Park system. DEP funds elite private group NJ Audubon to prepare forest logging plans.

The Appellate Court’s decision has huge implications for many DEP programs, for two reasons:

First, many DEP regulatory responsibilities have been delegated – or outsourced – to private sector entities, a privatization policy that preceded but was actively promoted and expanded by the Christie DEP.

Second, many DEP programs are implemented via Guidance Documents. Curiously, the Democratically controlled Legislature, acting in concert to implement the Christie administration’s regulatory rollback agenda, attempted to restrict DEP’s use of Guidance documents back in 2011, see: Bill Banning Enforcement of Guidance Moves to Governor Christie’s Desk.

Why is Gov. Murphy’s DEP Commissioner dodging this issue? DEP ducked and referred the press to the Attorney General’s Office.

Over more than a decade, so much of DEP has been privatized, outsourced, and/or based on Guidance documents. Do Gov. Murphy and the Democrats want to continue to abdicate and privatize?

Or will they act quickly to assume and restore their regulatory responsibilities to protect public health and the environment?

A key example is the controversial Vapor Intrusion Guidance.

Toxic chemical vapors could be migrating into homes and buildings at hundreds of sites across the state.

The vapor issue is now in the national spotlight, because due to vapor risks, EPA recently announced an intention to begin to consider vapor intrusion as a factor in Superfund listing decisions.

But it is not just the Site Remediation Program that would be impacted.

Here are some other examples of DEP implementation Guidance:

Perhaps thew most egregious example of privatization is the DEP’s toxic site cleanup program, which was privatized by the legislature, at the request of the Corzine administration and thenDEP Commissioner Lisa Jackson.

That delegation is very poor public policy, but, because it was done by the legislature, it is NOT vulnerable to challenge under the Court’s ruling.

But DEP has delegated numerous DEP regulatory responsibilities to the private sector, either without any DEP oversight or under the guise of the kind of self certification program that the Court rejected.

A currently controversial illustration of the DEP’s delegation to private contractors is the installation and management of toxic vapor intrusion systems in homes in Pompton Lakes, NJ. Approximately 450 homes there have been poisoned by toxic chemical vapors from the Dupont site.

Residents recently appealed to DEP to correct problems in dealing with those vapor systems and got this Kafka-esque bureaucratic runaround from the DEP regarding the title known “3rd Party Contractor Program”. According to an October 23, 2018 email from Heather Swartz, DEP Office of Community Relations (email provided upon request):

It became apparent to me … that I need to clarify the division of responsibilities for addressing the vapor intrusion issues at the DuPont Pompton Lakes Works site.  DEP and EPA are co-leads for the larger vapor intrusion pathway project, meaning both agencies have equal responsibility for developing policies and providing technical input with regard to testing and installing systems at the homes being addressed by Chemours’ contractor, HDR.  However, when the 3 rd  Party Contractor Program was developed several years ago, EPA was designated the lead for that aspect of site cleanup.  DEP role for the 3 rd  Party Contractor Program is limited to providing technical support.  Consequently, EPA is solely responsible for developing and implementing policies related to the 3 rd  Party Contractor Program.  This would include determining what contractors can participate in the program and what types of meetings are appropriate.

This “3rd Party Contractor Program” appears to share the same defects found by the court in terms of delegating DEP’s regulatory responsibilities to protect public health. Specifically, the Court noted the lack of accountability in private delegated programs. In the Pompton Lakes case, that lack of accountability to the homeowners is front and center.

This is a statewide problem at hundreds of toxic waste sites in NJ.

We urge our friends in Pompton Lakes to make some noise, so that media cover the issue and perhaps a lawsuit can be filed to enforce the Appellate Court’s reasoning in the radon case.

Similarly, in addition to the legal vulnerable programs highlighted above that rely on Guidance Documents  the DEP relies on private contractors – some certified, some not – in many regulatory programs, including air and water pollution control, laboratory testing, and drinking water protections.

These programs all are vulnerable to the Court’s decision – so, that decision may have opened a Pandora’s box and may begin to unravel years of DEP abdication and privatization.

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