The Visitor From The Sierra Madre

May 21st, 2015 1 comment

julien

Meet Julian Anguiano, from Saltillo Mexico –  (here is his tour website).

Julian lives in the Sierra Madre, a mountain range made popular in the US by the classic movie The Treasure of the Sierra Madre, starring Humphrey Bogart:

Gold Hat (Alfonso Bedoya): “We are Federales… you know, the mounted police.”

Dobbs (Bogart): “If you’re the police, where are your badges?”

Gold Hat (Bedoya): “Badges? We ain’t got no badges. We don’t need no badges! I don’t have to show you any stinkin’ badges!”

I was a Warmshowers host for Julian over the weekend and we had a wonderful time.

Julian is on a 1 year long tour from his home in Mexico.

For the last three months, he has toured about 2,400 km through Texas, along the Gulf Coast, across northern Florida and up the East Coast. He arrived at my house on Sunday afternoon and was heading to NY City, where he had a flight out of JFK to Manchester England.

He planned to spend at least 3 months in Europe and then fly to Japan for a 6 month tour there.

We really hit it off and were able to talk at length, sometimes incredibly closely.

Julian explained the reason for his tour: he’s a 42 year old man, with a wife and 12 year old son, but his job was high pressure, on call 24/7, and that he did not want to live his life that way anymore.

So, one day, despite the fact that he had never ridden a bike before and bicycle touring in not popular in Mexico, he decided to go on a world tour and began planning to do so.

He told me he wanted to be more to his son than just an example of a hard worker – he wanted to give him a legacy. In a very touching moment, Julian told me that now that he is away from home on his tour, he actually spends more quality time talking to his son and they have grown closer.

He enjoys the support of his wife and son, and told me the small hometown papers made him somewhat of a celebrity and gave him a grand send off on his journey.

Julian shared his joy in meeting people and especially talking to them about their hopes and dreams and their way of life and their families. He emphasized that he never labelled or judged people, he focused on learning about them and listening to their stories.

He felt that bicycle touring and Warmshowers hosts provided a unique opportunity to break down the barriers that exist between people. He said he was totally  in love with his US tour and all the great people he met along the way.

I took him to visit Liberty State Park, Statute of Liberty and Ellis Island.

When he left, I rode with him up the D&R Canal to Kingston.

We stopped to tour Princeton and the University – he was blown away by the architecture and beauty of the place.

It was the best time I’ve had in a long time -

I gave him a gift off my library shelf – I chose John Steinbeck’s The Grapes of Wrath – but that Library of America volume also had The Sea of Cortez, which I’m sure Julian will enjoy.

Be well, Julian my friend! A real treasure of the Sierra Madre!

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Chemical Industry Mounting Behind the Scenes Attack on Drinking Water Protections

May 21st, 2015 No comments

 NJ press ignores all that, while spinning history

Chemical Industry Continues Shameful 60 Year Legacy of Attacking Scientists, Science, Public Health & Environmental Protections

Soon after I first read Rachel Carson’s groundbreaking 1962 book Silent Spring, I changed my major.

It was 1975 and I was studying chemical engineering at Clarkson College of Technology. After learning of the devastating ecological and human health impacts, I wanted no role in manufacturing chemicals. Instead, I wanted to ban and regulate them, so I changed my major to environmental science.

So, to put it mildly, I was stunned – and disgusted – to read this huge revisionist whitewash in yesterday’s press clips:

Klipstein said his grandfather served as president of the chemical firm American Cyanamid in the early 1960s, and became increasingly concerned about the potential harm from chemical misuse.

“I think he was really struck by (environmentalist) Rachel Carson and her book ‘Silent Spring,’ ” he said. Prior to the creation of the U.S. Environmental Protection Agency, the Clean Air Act and the Clean Water Act, the senior Klipstein founded the New Jersey Chemical Industry Council [NJCIC] to share thoughts and concerns about chemical product development and educate students and teachers about advancements in the field of chemistry.

Yeah, I bet the President of American Cyanamid and founder of the NJCIC was “struck” by Carson’s book – as in struck by lightning!

But the CIC as about educating teachers and children? The reporter apparently lifted that historical spin directly off the Chemistry Council’s website.

So, lets get the history right.

Rachel Carson was viciously attacked by the chemical industry for writing Silent Spring – much of it personally directed at her as a woman.

Some of that attack was launched right here in NJ, by agricultural chemical and pesticide manufacturers like American Cyanamid and their NJ State government flunkies.

Attacks on Carson by the chemical industry were widespread, and no doubt shared by major NJ corporations like Cyanamid (see: Fifty Years After Silent Spring, Assault on Science Continues):

 “In any large scale pest program, we are immediately confronted with the objection of a vociferous, misinformed group of nature-balancing, organic gardening, bird-loving, unreasonable citizenry that has not been convinced of the important place of agricultural chemicals in our economy.”  ~~~ Director, NJ Department of Agriculture

Since its 1955 founding, the NJ Chemical Industry Council – precursor to today’s NJ Chemistry Council – has attacked science and scientists, elevated industry profits above protection of public health, and – by blocking, delaying or weakening  the effective regulation of dangerous chemicals – the CIC has contributed to needless suffering and death of perhaps thousands of people and the permanent poisoning of wildlife and ecosystems.

That’s hardly about a project to “share thoughts and concerns about chemical product development and educate students and teachers about advancements in the field of chemistry” and certainly not a legacy to be proud of.

Today, as we speak, that shameful legacy continues.

As I recently noted, the Chemistry Council is engaged in a classic campaign to “manufacture doubt” to block long delayed drinking water standards (see:

In a May 7, 2015 letter to the Drinking Water Quality Institute, the Chemical industry renewed and expanded those attacks:

Based upon available science and data, we have significant concerns that DWQI’s draft recommendations related to PFNA are needlessly low and costly to New Jersey, which cannot be supported by an objective analysis of the available science and data. As such, DWQI’s current draft MCL for PFNA should be held until such time that scientific evidence can support its recommendation.

In addition to their campaign to attack the science, manufacture false scientific uncertainty, elevate industry profits over public health protections, and use Gov. Christie’s “federal consistency” and anti-regulatory policies to block regulation, the chemistry council manufactured another straw man argument to serve as a hurdle.

NJ CIC now claims that DEP failed to consider what is know as the “occurrence rate” – e.g. how widespread the problem is:

First, we urge DWQI members to keep in mind the fact that the latest federal Unregulated Contaminant Monitoring Rule 3 (UCMR3) reporting data for New Jersey does not support the need for a recommended maximum contaminant level (MCL) of 13 parts per trillion (ppt) or a practical quantitation limit (PQL) of 5 ppt. PFNA was detected in only 4 of 918 public water supply wells in New Jersey, an occurrence rate of less than .44%.  …  This low occurrence rate coupled with the fact that the existing scientific literature fails to establish any human health toxicity effects from PFNA at such low levels make it clear that DWQI lacks human health justification for its recommendation. 

First of all, in contrast to the federal Safe Drinking Water Act, which requires EPA to consider occurrence data in setting drinking water standards, under NJ law, the DEP and the DWQI are not required to consider or authorized to set drinking water standards based on occurrence data.

But CIC fails to note here that the federal EPA UCMR3 monitoring was based on a much higher screening value that used by NJ DEP.

DEP noted this problem in using federal UCMR data and compared federal EPA UCMR data to NJ results:

Under the USEPA Unregulated Contaminant Monitoring Rule 3 (UCMR3; USEPA, 2012b), nationwide monitoring of finished water for 30 unregulated contaminants, including PFNA and 5 other PFCs, is being conducted in 2013−2015 by all U.S. public water supplies serving more than 10,000 people and 800 representative PWS serving less than 10,000 people. Comparison of the UCMR3 PFC occurrence data with other PFC occurrence studies is complicated by the fact that the Reporting Level for UCMR3 monitoring of PFNA (≥ 20 ng/L) is much higher than the Reporting Levels in the NJDEP studies and other monitoring data reported to NJDEP and in the drinking water occurrence studies reported in the literature (generally < 5 ng/L, reviewed by Post et al., 2013). In initial UCMR3 data from 3483 public water supplies outside of New Jersey reported to USEPA through January 2015, PFNA (20 ng/L or above) was found in only seven public water systems outside of New Jersey (USEPA, 2015; Table 1). As of January 22, 2015, PFNA was found in UCMR3 monitoring in three public water supplies sites in Gloucester County, NJ (Woodbury City Water Department, up to 56 ng/L; Monroe Township MUA, up to 28 ng/L; West Deptford Township Water Department, 30 ng/L) including one public water supply (Monroe Township MUA) which had not previously reported detections of PFNA to NJDEP. In all but two of the non-NJ public water supplies reporting PFNA in UCMR3, other PFCs were also present, while PFNA was the only PFC reported at the three Gloucester County, NJ, sites.

ucmr

In private well testing results reported to NJDEP as of July 18, 2014, PFNA (at > 2.5 ng/L) was detected in wells at 26 of 94 (28%) of residences tested in the vicinity of the West Deptford industrial facility. Fifteen of the wells had PFNA levels above 20 ng/L, and the highest concentration found was 1,500 ng/L. Point of entry treatment systems (POETS) have been installed on those wells with PFNA levels of ≥ 20 ng/L that are currently used for potable purposes.

Most of the chemical industry’s attacks are similarly false and misleading.

Certainly no legacy to be proud of.

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No Storm of Protest Over DEP’s Lack of Regulatory Controls and Privatization

May 20th, 2015 No comments

Lack of DEP Regulatory Standards Leads to Abuse By Private Engineers Who Work For Builders

Private “Consultants” Make Toxic Site “Cleanup” Decisions Too

[Update: 5/21/15 - There are hundreds of cases of abuse like this – a must read story:

Rutherford tenants upset with lack of notification about site contamination 

Tenants questioned why they weren’t notified about the investigation prior to three months ago, when the contamination was identified years ago.  ~~~ end update]

Bill Potter does a good job explaining a complex regulatory scheme for storm water in an Op-Ed running at NJ Spotlight today, don’t miss it:

The next time it rains, check out the water flowing down your gutters and into the street. Where all that rainwater — called stormwater or runoff — goes and who is responsible for taking care of it are big-time statewide issues, although you wouldn’t know it from the lack of public attention. Rather quietly, there’s a major storm brewing over stormwater — how to regulate it, who does the regulating and on what criteria.

As I’ve learned, it is difficult to present complex DEP regulatory issues journalistically.

Potter’s Op-Ed also correctly targets the determinative aspects of the issue – i.e private engineers, local governments, and lack of State regulatory standards – and makes recommendations for reforms.

So I thought I might latch on to Bill’s piece and make a quick comparison to similar problems with lack of DEP standards and privatization in the toxic site cleanup program.

To begin to address the water quality and flooding problems Bill correctly notes,  DEP needs to adopt “objective” technical standards to restrict some of the discretion the local governments and professional engineers now have.

Municipalities compound weaknesses in DEP regulations by granting conditional approvals that can essentially privatize the review process, another big problem Potter correctly notes.

But, with storm water management, at least the private engineer is working for the local land use board.

In contrast, under NJ’s toxic site cleanup program, the private “Licensed Site Remediation Professionals” (LSRP) works for the private polluter!!!

Yes, that’s right folks, under the 2009 Site Remediation Reform Act  - thanks to former DEP Commissioner Lisa Jackson and Gov. Jon Corzine and Democratic legislators sponsors Smith and McKeon – private consultants certify compliance with toxic site cleanup requirements with virtually no oversight by DEP [or the knowledge, review or consent of the public].

If you think that is not important, just consider that while the consultant who works for DEP found that there was $8.9 BILLION in pollution damages to natural resources from toxic dumping at the Exxon Bayway and Bayonne refineries, the consultants for Exxon said the damage was ZERO!

Curious that those now making the most noise opposing the Exxon settlement were the same folks who brought us privatization of the cleanup program.

And LSRP’s are “licensed” by and overseen by a board composed of fellow LSRP’s.

Worse, there are no longstanding academic curriculum, university degree programs, institutions, and professional traditions – like those that are strong in the field of civil engineering – for setting rigorous requirements for an LSRP license.

And toxic sites pose far greater risks to human health and the environment than storm water does.

Is that a formula for abuse or what?

So, how do you like ‘dem apples?

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The King Is Dead- The Thrill IS Gone

May 15th, 2015 No comments

BB Kind Dead at 89

BB King - Memphis, Tennessee

BB King – Memphis, Tennessee

Bergen Record obit has a good live version of The Thrill is Gone:

I still remember my first exposure to BB King, in 1969.

We had a black school bus driver named Bob – I never knew Bob’s last name.

Bob would pleasantly greet us as we got on the bus, but otherwise was a private person.

But, I was very surprised to learn about the real man Bob under his bus driver’s uniform and quiet demeanor.

It wasn’t until 7th grade, in 1969, that I met the real man Bob.

It seems that Bob was always our driver on soccer team away games.

As we got on the bus, Bob would step out of character and say: “If you win, we rock – if you lose, we play the blues”.

The first time he said this, I had no idea what he was talking about.

Until Bob played BB King on the long ride home after a loss (he had his bus wired for sound with an 8 track tape deck!).

I had a limited musical experience. I played the trumpet at the time – my models were the brass section of Chicago Transit Authroity (Does Anybody really know what time it is?), Herb Albert and the Tijuana Brass, and a little Louis Armstrong and New Orleans rag from the Ed Sullivan Show. But listened mainly to rock and folk and the FM radio music of the time. I had no idea of blues guitar. And BB King’s sound was awesome.

Long live the King (and Bob too). Memphis, Tennessee:

king2

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A Look At DEP & Pinelands Commission’s Sewer Agreement

May 14th, 2015 No comments

DEP Rule Proposal Based On Legally Flawed Agreement with Pinelands Commission

DEP Attempts to Ratify Arbitrary Policy Decision Dictated Without Public Review

At the end of yesterday’s wide ranging and lengthy post on DEP’s plans for Pinelands sewers, I argued that the DEP Memorandum of Understanding (MOU) with the Pinelands Commission was illegal because it was a “rule” that was not adopted in accordance with rule making procedures.

The MOU deceptively calls itself a “framework”, but it made major policy and regulatory decisions, including:

  • DEP “deemed” Pinelands CMP designated growth areas as sewer service areas without detailed planning required under DEP Water Quality Management Planning regulations, NJAC 7: 15 – 1 et seq.;
  • DEP did not enforce WQMP requirements that environmentally sensitive  lands be eliminated from sewer service areas; and
  • DEP  unilaterally initiated and conducted planning on behalf of the Counties, a deviation from prior practice, where Counties are the WQMP planning entities.

Once those major decisions were made, DEP and Pinelands staff merely engaged in a tedious technical GIS mapping exercise of reconciling CMP maps with DEP SSA maps.

That exercise is what produced the “WQMP plan amendments” that were the subject of yesterday’s public hearing. It was all a sham, posed after the fact, an attempt to ratify arbitrary dictates from Trenton.

This exercise by DEP and Commission staff was not land use planning required by the CMP or wastewater planning required by DEP WQMP rules  - it was a rote technical exercise. As a result, the public is not able to review facts and planning analyses that formed the basis of the original policy decisions made in the “framework” MOU.

All those decisions were “deemed” by DEP BEFORE technical review or public comment.

I was told, by a reliable professional source, that the MOU was stealthed before the Pinelands Commission: it was not listed on the meeting agenda, it was not in the Commissioners’ meeting packet, and it handed to the Commission by Nancy Wittenberg and approved on the same day without review by the Commission or the public.

That is bad enough – but there are fatal legal flaws in the MOU – which is the basis of DEP’s WQMP rule proposal – that I want to drill down on today.

This is a complex legal issue, but it goes to the heart of democracy and how we govern – including issues like whether the public is involved in major Executive branch decisions by government, whether government decisions are transparent and based on evidence, and whether people have opportunities to challenge government actions.

The general principle is that when executive branch agencies craft policies or regulations to implement laws in ways that establish requirements that significantly impact people or economic interests, that government must do so by subjecting those policies to public review, through a process called rule-making, which includes these steps: 1) propose, explain, justify, and publish the policy; 2) allow public comment and hold a public hearing; 3) respond to public comment; and 4) provide opportunity to challenge the policy in court.

Here are the factors that NJ Supreme Court’s Metromedia decision found define when a government policy is a “rule” that must be promulgated via rule making procedures:

(1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.

So, let’s examine the DEP Pinelands sewer MOU in light of these 6 factors to see if it meets the definition of a “rule”.

Keep in mind that not all 6 factors must be met – just ONE triggers legal rule making requirements.

1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group;

The MOU applies to over 13,000 acres across the entire Pinelands region. It influences the land use and development pattern in multiple counties and communities throughout the Pinelands. It involves sewers infrastructure which could cost hundreds of millions of dollars, allow building of thousands of new homes, and increased property values and local taxes. CHECK

(2) is intended to be applied generally and uniformly to all similarly situated persons;

The essence of the MOU is that is applies uniformly to all Pinelands CMP designated growth areas and lands situated in those growth areas, with respect to sewer service. CHECK

 (3) is designed to operate only in future cases, that is, prospectively;

The MOU is about wastewater planning, which is by definition a prospective policy that applies to future conditions on the ground. CHECK

(4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; 

The MOU prescribed at least two new legal standards:

a) that lands designated for growth under the CMP adopted under the Pinelands Protection Act are “deemed” by DEP as sewer service areas under the WQMP regulations and Water Quality Management Act; and

b) that lands designated for growth under the CMP adopted under the Pinelands Protection Act and “deemed” sewer service areas are not required to eliminate “environmentally sensitive areas” from from the SSA’s.

These administrative determinations by DEP were not inferable from existing DEP WQMP regulations. CHECK

(5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter;

The MOU itself is described as a “framework” and it reflects a significant new administrative policy by DEP concerning the relationship between the Pinelands CMP and the DEP WQMP regulations.

This is a material and significant change in historic DEP policy under the WQMP rules. CHECK

6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy

The MOU refelcts DEP’s policy decision to “deem” CMP growth areas as “sewer service areas” – and to do so without a detailed compliance review of those growth areas with respect to the requirements of the WQMP regulations. The MOU also establishes a policy to waive a DEP requirement to eliminate ESA from SSA’s.

Obviously, these are regulatory policy determinations. CHECK

  • Breaking Down and Summing up:

1. The MOU made substantive regulatory policy decisions that DEP and Pinelands staff complied with and later merely reflected in maps.

2. Those policy decisions constitute a rule, as defined in the NJ Supreme Court’s Metromedia decision;

3. The MOU was not promulgated in accordance with rule making procedures;

4. The MOU “framework” policies were later incorporated – verbatim, and without technical analysis – in a DEP rule proposal. The rule proposal came 3 years after the actual policy decision was made, rendering the rule proposal a sham.

5. Conclusion: The DEP’s proposed rule is fatally flawed – the DEP can’t after the fact comply with rulemaking requirements that should have been followed when the original huge and binding regulatory policy decisions were made in the MOU.

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