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.

Categories: Uncategorized Tags:

Is The US Air Force Poisoning Children At McGuire AFB Schools?

October 24th, 2018 No comments

We take care of our own – we don’t need your NJ DEP or US EPA telling us what to do.”  ~~~ US Air Force Colonel, North Hanover Township Ex-Officio School Board member (circa early 1990’s)

NJ Spotlight reporter John Hurdle wrote a scathingly critical story today about the failure by US military officials to clean up toxic groundwater contamination at Joint Base McGuire-Dix-Lakehurst – read the whole thing:

But there is at least one big omission in that otherwise superb reporting: potential contamination of drinking water at schools on the base.

The Spotlight story brought back memories.

I served on the North Hanover Board of Education in the late 1980’s – early 1990’s. North Hanover operates a K-6 school district, with 4 schools, two of which are on McGuire AFB. The US Air Force has an Ex-Officio School Board member.

According to the North Hanover School District:

We proudly serve students in PreKindergarten through 6th grade.  We currently operate four schools. Two schools, Discovery School and Atlantis School, are located in the Falcon Courts North Section of Joint Base McGuire-Dix-Lakehurst.

Back in the late late 1980’s – early 1990’s, when sampling discovered high levels of lead at drinking water fountains, the Air Force tried very hard to keep that data secret. (I don’t recall if the source of the lead was the drinking water fountains, school pipes, or the groundwater.) The Air Force full Colonel on the Board pressured Board members to invoke secrecy under Executive Session rules.

The school board members were intimidated and willing to go along and restrict discussion to executive session (probably because the public schools are funded by military impact aid which not only gives the Air Force tremendous political power, but keeps local property taxes the lowest in NJ).

I refused to abide by the Board’s decision to keep the issue secret.

That night, after returning from Executive Session, I disclosed the contamination publicly. The shit immediately hit the proverbial fan at the public session, when teachers and parents were blindsided and obviously very concerned.

After the school board meeting, I was privately reamed – almost assaulted – the the Air Force Colonel who served on the Board.

I still recall how he got in my face, and in a rage poked a finger in my chest and said: “Who the hell do you think you are? We take care of our own – we don’t need your NJ DEP or US EPA telling us what to do.”

The military is not subject to the same environmental regulations as every one else.

Here’s where the story gets even more amazing.

The next day, upon arriving at work at DEP Trenton HQ, I was shocked to find a memorandum on my desk, written by the NJ DEP Ethics Officer, who then was an attorney named Nancy Stiles (Nancy died long ago).

I was warned about violating ethics rules due to a conflict of interest. I worked in DEP’s Solid and Hazardous Waste element at that time and had no DEP professional involvement or responsibility with respect to drinking water, so I found that conflict conclusion very odd.

Worse, I was orderedyes, ordered – to issue a written and verbal statement at the next school board meeting. The statement had to say that my comments did not reflect the official position of the NJ DEP.

I was also ordered to recuse myself from all future deliberations and decisions regarding any matter related to DEP or environmental issues, and include that recusal in my public statement.

I found it equally shocking that that ethics order was issued less than 12 hours after the school board meeting – literally overnight.

Thirty years later, I still want to know:

How the hell did the US Air Force contact the NJ DEP ethics officer and convince her to issue an ethics opinion and order in less than 12 hours?

Categories: Uncategorized Tags:

“Redwoods Rising” – Forests Falling

October 17th, 2018 No comments

The latest in logging pretexts

Bouy in Redwood Country

Bouy in Redwood Country

It takes a special kind of Orwellian cynicism to name a logging project – including logging young redwood trees – “Redwoods Rising“. Our story:

_DSC5233As I hiked in old growth redwood forests in Redwood National  Park along Lost Man Creek trail  -an old logging road, ironically the site of the 1982 ceremony designating the forest as a “World Heritage Site”- despite the “road closed” sign at the trailhead, I was assaulted by logging trucks hauling substantial 10 – 25 inch diameter trees, which were mostly Douglas fir, but included redwoods.

So, I stopped by the nearby National park public information center to ask about what was going on.

After getting nervous runarounds from a young park desk employee – who played dumb – I was referred to the supervisor.

She too initially gave me a runaround, telling me that the trail was closed. When I replied that I saw several logging trucks on it, she again dodged, by asking if I had specific information, like the name of the logging company trucks.

When I replied that the trucks were operated by “Pacific Earthscape” (hit the link and look at the photo of logging/roadbuilding on steep slopes and note the corporate logo” Pacific Earthscape Builds Smarter“), she suddenly understood what I was referring to and said: “Oh, they work for us”.

She explained the project, and was careful to respond to my question that all logging revenues were dedicated in a special account for managing the project. Still, the conflict between science and securing agency funding remains, a conflict made worse in a time of scarce resources and budget cuts.

We’ve seen all sorts of “justifications” for logging – including creating of “young forest” or early successional habitat for endangered migratory birds; salvage logging of forests disturbed by insects and fire; logging to accelerate carbon sequestration; and logging to reduce “fuels” and prevent wildfires – but the “Redwoods Rising”  “restoration” pretext was new to us.

According to the National Park Service (bold mine)

This restoration effort will involve forest and vegetation management, legacy logging road removal and road maintenance, cultural site protection, watershed management, as well as reducing the amounts of erosion and sediment going into rivers and streams.

I don’t have time to adequately research this project, but I scanned the NPS website but could not find links to the scientific support documents and the NEPA Environmental Impact Statement. I don’t know the organizational lay of the land out here, but did find supporting NEPA scoping comments from a group called “EPIC”

“Redwoods Rising” may in fact be a wonderful project to restore old growth redwood forests, as the NGO champions claim, with all these PR slogans (my emphasis):

Redwoods Rising will bring the collaborative, landscape-scale visioning, planning, and project implementation necessary to increase the pace of redwood forest restoration. It will provide additional support to improve stream health, restore critical wildlife habitat, and remove invasive species. It will allow us to reconnect remaining old-growth stands, set previously logged areas back on a trajectory towards old-growth conditions, and create landscapes that will be resilient in the face of future climate change.

But I doubt it.

Here’s what the proponents view as the problem:

Despite their ecological wealth, and stunning beauty, these forests are far from being places of pristine, untouched wilderness. Large swaths of the parks were scarred by decades of logging, which left behind eroding roads, impaired streams, and spindly, young trees that hold neither the magic of an ancient forest nor its ecological strengths.

Do these 50 – 75 year old Douglas firs look like “spindly, young trees“?

_DSC5234

Does the carbon sequestered in those trees move us towards resilient climate change?

Will ecosystems benefit when nursing trees and stored nutrients are removed from the forest via logging?

Will threats from invasive species be reduced when more sunlight hits the forest floor as a result of logging?

Do these going trucks look like they are restoring “eroding roads” and improving water quality?

_DSC5220

_DSC5222

Will the project really “increase the pace of redwood forest restoration”?

How will young redwoods and ferns thrive in the bright sunlight of a greatly reduced canopy in a logged forest?

Even if they will, restoration of old growth characteristics will take hundreds of years. What’s the hurry?

Why not let nature “thin” the forest and allow old growth forests to emerge naturally?

Haven’t the forest mangers learned anything about the arrogance of human management?

Categories: Uncategorized Tags:

ANJEC Whitewashed Christie Whitman’s Record

October 13th, 2018 No comments

Shameless Revisionism In An Effort To Rehabilitate Whitman

I was not aware, when I wrote last week to criticize Christie Whitman’s Op-Ed, that the Association of NJ Environmental Commissions (ANJEC) had named Whitman the keynote speaker for their “Annual Environmental Congress” held on Friday.

Giving Whitman a platform is bad enough.

But, in doing so, ANJEC engaged in outrageous lies and revisionism to whitewash Whitman’s record.

Despite the fact that during Christie Whitman’s first term ANJEC joined a broad coalition of virtually all NJ environmental and conservation groups to oppose the Whitman radical rollback attack on environmental regulations and DEP as an institution, here’s how ANJEC ignored that history and lavishly praised Whitman 23 years later:

Christine Todd Whitman, is the President of The Whitman Strategy Group (WSG), a consulting firm that specializes in energy and environmental issues. WSG offers a comprehensive set of solutions to problems facing businesses, organizations, and governments; they have been at the forefront of helping leading companies find innovative solutions to environmental challenges.

Governor Whitman served in the cabinet of President George W. Bush as Administrator of the Environmental Protection Agency from January of 2001 until June of 2003. She was the 50th Governor of the State of New Jersey, serving as its first woman governor from 1994 until 2001.

As Governor, Christie Whitman earned praise from both Republicans and Democrats for her commitment to preserve a record amount of New Jersey land as permanent green space. She was also recognized by the Natural Resources Defense Council as having instituted the most comprehensive beach monitoring system in the nation. As EPA Administrator, she promoted common-sense environmental improvements such as watershed-based water protection policies. She championed regulations requiring non-road diesel engines to reduce sulfur emissions by more than 95 percent. During her tenure, the Agency was successful in passing and implementing landmark brownfields legislation to promote the redevelopment and reuse of “brownfields,” previously contaminated industrial sites.

I smell the fingerprints of Candy Ashmum, longtime leader of the ANJEC weenie conservation faction and fellow elitist blue blood Whitman friend.

Ashmum also was involved in the creation of ANJEC and the State legislation that authorized the formation of local environmental commissions.

She opposed any attempt by that legislation to give environmental commissions teeth, in the form of regulatory power to impact local planning board Master Plan, zoning, and development decisions.

Instead, Ashmum restricted local environmental commission powers to an advisory role, thereby diverting local conservation and land use planning efforts to totally ineffective voluntary measures and technocratic distractions like natural resource inventories.

It’s a double irony that Ashmum has served on the regulatory Pinelands Commission for decades, a regulatory regional planning body that contradicts her legacy as champion of toothless local environmental commissions she effectively created.

Ironically, back in 1994, Ashmum led the “Environmental Summit”, a coalition which was formed to provide a united front to oppose Whitman’s radical regulatory policies, attacks, and budget cuts on DEP.

The rest is history, – jut look at the land use – land cover data and landscape – as NJ sprawled in the 1980’s and 1990’s and made a mockery of local environmental commissions’s efforts to inventory sensitive natural resources that should be protected from development.

Ashmum also was a champion the toothless and ineffective State Plan, a project my friend Bill Neil called the greatest fraud ever perpetrated on NJ citizens.

Based on my personal experience, Ashmum, acting as a Sierra Club Board member, blocked my efforts as Sierra Club Policy Director, to oppose the massive controversial proposed Merrill Lynch development scheme in my home town off Hopewell. Tim Dillingham, then Sierra Club Executive Director, can confirm this.

That controversy became a test case and exposed of the failed State Plan that Ashmum held so dear. In fact, I was told that Ashmum personally agreed to the Merrill Lynch development in a deal to preserve the “west side” of Scotch Road.

Ashmum also opposed efforts to create a “Pinelands in the Highlands”, which, despite her fears, bore fruit as the Highlands Act.

Someone should get a hold of longtime ANJEC advocate Abbie Fair to confirm all this.

How far ANJEC has fallen.

And I’ll bet that Ed Lloyd, an ANJEC award winner this year, will not be so uncouth as to mention this history in his remarks. Ed filed the lawsuits against Whitman’s “mega rule”, that was designed to systematically rollback clean water protections in NJ.

Again ironically, the Whitman “mega rule” was derailed when a leaked memo from Dennis Hart – then Director of the DEP Division of Water Resources and now the Executive Director of the NJ Chemistry Council – wrote that the rollbacks would “increase the discharge of carcinogens to public water supplies.” Hart now defends those discharges!

Can’t make this stuff up.

Those were the days, my friend.

Categories: Uncategorized Tags:

Christie Whitman Is A Flaming Hypocrite On Climate Change

October 5th, 2018 No comments

Whitman Set Back EPA Regulation of Greenhouse Gases By Over a Decade

Whitman is actually WORSE THAN TRUMP on CLIMATE CHANGE

Former NJ Governor Christie Whitman just authored an Op-Ed that argued that politicians should be judged based on their record, whether they “produced results”. Whitman wrote:

During my time as both governor of New Jersey and administrator of the Environmental Protection Agency, I knew that I’d be judged by my actions. All the speeches and public appearances in the world won’t convince people you’ve done your job unless you produce results.

That’s how we need to judge our elected officials when it comes to climate change.

We agree.

And that’s why we must call her out – again – for remarkable hypocrisy.

I’ve written about Whitman several times to set the public record straight on Whitman’s “results” – from her overall “Open for business” environmental record, her regulatory rollback policy, her climate policy, her nuclear industry shilling, her penchant for self promotional PR to mask bad policy, her coverup of science regarding risks to women from toxic heavy metal mercury in freshwater fish, her racist “stop and frisk” episode, and perhaps most shamefully, her actions as EPA administrator after 9/11.

For today, I will focus exclusively on climate change, as I did in a prior post, see:

I’ll do that in this short note to Star Ledger editorial page editor Tom Moran, whom I assume is responsible for giving Whitman the Op-Ed platform.

I strongly doubt that Moran will honor my request for equal time.

Tom – Are you aware of the following facts, established in the public record, about Whitman’s own actions on climate change. I’lll keep it real simple. If you want details, excerpts, and links to EPA documents and the applicable US Supreme Court decision, see this:

http://www.wolfenotes.com/2012/11/setting-the-record-straight-on-christie-whitman-and-global-warming/

1. Whitman, as NJ Gov., had a legal counselor named Bob Fabricant.

2. Whitman took Fabricant with her to Washington as EPA Administrator. Fabricant was named EPA Counsel.

3. Fabricant, at Whitman’s direction, wrote a legal opinion that reversed the Clinton administration EPA’s legal opinion regarding whether greenhouse gases were a regulated pollutant under the federal Clean Air Act. Here it is, you can read it:

http://www.craig-environmental-law.com/forms/Ch4_MassvEPA5_RobertFabricantMemo_Aug2003.pdf

4. Clinton’s legal view was YES, setting the stage for EPA regulation. Fabricant reversed that and said NO.

5. Fabricant’s opinion was cited, criticized, and reversed by the US Supreme Court in the groundbreaking Massachusetts decision.

6. The effect of Whitman/Fabricant’s actions was to delay EPA regulation of greenhouse gas emissions by over a decade.

7. Trump has just now proposed repeal and replacement of Obama Clean Power Plan and repeal of vehicle fuel economy standards – two major EPA regulatory actions on greenhouse gas emissions. But even Trump’s legal analysis finds that GHG are regulated pollutants.

Thus, Whitman is actually WORSE THAN TRUMP on CLIMATE CHANGE.

With that kind of record, how could you possibly give her a platform?

Can I have equal time to set the record straight?

[End Note:  On Whitman’s record, no need to take my word for it. Skeptics can read Whitman’s STARR Report (see p. 46 summary) “Strategy to Advance Regulatory Reform” (Department of State, Office of Business Ombudsman, July 1995) and read Whitman’s first State of The State address for examples of her no holds barred assault on DEP and regulation. Whitman abolished the Office of Environmental Prosecutor via Executive Order #9 and created the anti-regulatory Business Ombudsman’s Office via Executive Order #15) Whitman sought to roll back stricter NJ state standards to federal minimums via Executive Order #27. These are just a few of Whitman’s attacks that have been expanded upon by Gov. Christie and embraced by Gov. Murphy.

Full disclosure: I was fired by Whitman DEP Commissioner Bob Shinn for blowing the whistle on Whitman’s efforts to lie to the public and suppress science and derail regulation regarding health risks of mercury in in freshwater fish. Surely, I have many axes to grind. That’s why all of the above is supported by links to the official documents.

Of course, with the exception of the Stop and Frisk episode, virtually none of this can be found on Whitman’s Wikipedia page, which has been scrubbed.

But you can find all this – and more – in the transcript of the US Senate Environment Committee’s confirmation hearing on Whitman for EPA Administrator. And don’t miss my friend Bill Neil’s testimony.]

Categories: Uncategorized Tags: