WolfeNotes.com

Countless fiasco’s show that voluntary compliance, privatization, deregulation, subsidies, and reliance on private consultants failed

Bill WolfeLisa P. Jackson, DEP Commissioner.

In testimony before a rare April 15 joint hearing of the Senate and Assembly Environment Committees, Department of Environmental Protection (DEP) Commisisoner Lisa P. Jackson presented the Corzine Administration’s plan to reform the “broken” toxic site cleanup program. The “cornerstone” of the plan is privatization. Jackson opened by invoking the definition of insanity:
“it’s foolish to believe that doing things same way will make things change… it’s a curse to expect a different result by doing the same thing over and over again and expecting success”. (for Jackson’s written testimony, see: http://www.state.nj.us/dep/srp/stakeholders/testimony20080415.pdf
We agree with Jackson – and therefore suggest that the Commissioner is either insane of she has caved in to political pressure by the Governor’s Office.
Does she really believe that corporate polluters are chomping at the bit to spend billions of dollars to clean up 20,000 toxic sites now backlogged at DEP? Does she think DEP staff are preventing polluters from cleaning up sites? That all we need to do is get DEP bureaucrats out of the way and let the private sector solve the problem?
If insanity is doing the same wrong thing over and over and expecting success, then more privatization and deregulation policies are insane – that is exactly what we have been doing for the last 15 years that is causing the problem. Here’s why:

Bill WolfeAssembly and Senate Environment Committee Chairs John McKeon (D/Essex, left) and Bob Smith (D/Middlesex, right).H

Senate Committee Chairman Bob Smith (D/Middlesex) opened the hearings with remarks about Earth Week. Smith touted recent progress on the environment, noting the passage of the Highlands Act, diesel particulate controls, updating of DEP’s environmental enforcement powers, and enhanced electronic waste recycling. Smith’s examples were ironic because the common thread of all these laws are based on traditional regulatory controls, NOT on privatization and voluntary compliance.
Senator Gordon’s (D/Bergen) – burned by major cleanup breakdowns from Hoboken’s Grand Street Mercury poisoning, to Ford in Ringwood, to Paramus toxic schools, to Encap – observed that paperwork was being pushed between DEP and consultants, yet no real cleanups were being completed.
Assemblyman Rooney (R/Bergen) testified that the existing DEP private consultant certification program known as “Cleanup Star”, was “an abject failure”. He repeatedly warned that current widespread use of politically connected pay to play cleanup consultants must stop. “The program has been broken for a long time” Rooney concluded.
Assistant Commissioner Kropp testified that last year, – after 15 years of voluntary compliance and virtually no enforcement – a new DEP enforcement initiative found that more than 80% of sites were violating DEP cleanup rules.

Bill WolfeDEP Commissioner Lisa P. Jackson (right) and Assistant Commissioner Irene Kropp (left) present privatization and deregulation plan for toxic sites.

In stark contrast to the recent progress that rely on a traditional regulatory approach that was emphasized by Chairman Smith’s introductory remarks, since the Whitman Administration, the thrust of toxic site policy has been to shift from disparaged “command and control regulation” to voluntary compliance, privatization, and deregulation. Cleanup laws were amended in 1993 and again in 1997 – at the request of industry. Those changes privatized cleanup decisions, allowed partial cleanups (caps), weakened DEP oversight, expanded the use of tax credit subsidies and market mechanisms, gutted DEP enforcement, and eliminated public participation in the cleanup process.
Ten to fifteen years later, experience has shown that the current flaws in the DEP toxic site cleanup program can be traced back to these policy changes.
Specifcally, these are the failed Whitman era policies that: 1) promote what Commissioner Jackson herself referred to as partial “pave and wave” cleanups that cover up pollution with caps; 2) allow the private sector to set priorities based on real estate markets and economic investment preferences, instead of risks to the community; 3) set cleanup standards based on development and land use of the site instead of protecting public health and the environment; 4) rely on private market “buyer beware” mechanisms such as deed restrictions instead of regulation; 5) to walk away from costly groundwater cleanup requirements (”classification exception areas”); 6) to vest the critical choice to select the cleanup plan solely with the polluter, with no alternatives presented to the public or local oversight; and 7) to allow private contractors to control the cleanup process. All these policies have proven a disasterous failure and directly led to the current backlog.
Why would anyone promote more of the same of these failed policies??
That’s why we conclude that Jackson must be insane to be proposing expansions in the very same policies that have created the problems. After all, it is insane to repeat the same mistakes over and over again and expect success. Either that, of course, of Jackson has caved into the pro-economic development agenda of certain influential members of the Corzine Administration (ahem, Gary Rose).

Bill WolfeRoy Jones, South jersey Environmental Justice Alliance testifies. Urban and minority communities are disproportionately impacted by toxic sites and other environmental health threats.

For additional details – see PEER testimony, see: http://www.peer.org/docs/nj/08_14_4_wolfe_testimony_and_exhibits.pdf
NEW JERSEY TO PRIVATIZE POLLUTION REGULATION TO SAVE MONEY — Outsourcing Clean-Ups Is Recipe for More Toxic Disasters, Legislature Told
http://www.peer.org/news/news_id.php?row_id=1027
To listen to the April 15 hearing: https://edit-blog.advance.net/cgi-bin/mte/mt.cgi?__mode=view&_type=entry&id=1035091&blog_id=2882&saved_changes=1

From Andy Card to Josh Bolten – Bush sells out public to Corporate interests. Ideology and political power trump science and facts
Today’s NY Times story on Bush administration policy prompts historical reflection – and repeats a deeply disturbing pattern. (Administration Moves to Avert a Late Rules Rush http://www.nytimes.com/2008/05/31/washington/31regulate.html?ref=us
Immediately upon assuming office in 2001, the Bush administration imposed a blanket moratorium on all federal regulations then in the pipeline. Hundreds of rules were killed, including protections for clean air, clean water, wild lands, and National Monument designations.
Written at the request of corporate cronies, the infamous “Card memo”, by former auto industry lobbyists and new Bush Chief of Staff Andrew Card, killed scores of environmental and public health protections (see: http://www.ombwatch.org/ombwatcher/ombw20010205.html#lwq
For copy of the Card memo, see: http://www.whitehouse.gov/omb/inforeg/regreview_plan.pdf
The scope of abuse of the public interest by the Bush Administration is staggering – for a fact sheet and Obama campaign position statement on needed reforms see: http://www.scribd.com/doc/191311/Barack-Obama-08-Taking-Back-Our-Government-Back-Final-Fact-Sheet
Today the NY Times reports that Bush new Chief of Staff Josh Bolten has issued what amounts to a moratorium on new regulations on the way out. According to the NY Times:
“The White House has also declared that it will generally not allow agencies to issue any final regulations after Nov. 1, nearly three months before President Bush relinquishes power.“
But this latest stealth maneuver fooled no one:
“John D. Walke, director of the clean air program at the Natural Resources Defense Council, denounced Mr. Bolten’s memorandum as intending to “shut down regulation for the remainder of the Bush administration.”
“Until the bitter end,” Mr. Walke said, “the administration will pursue deregulation on behalf of polluting industries and avoid regulation that would protect public health, welfare and the environment. This memo is a codification of that agenda.”

For as copy of the Bolten memo, see: http://graphics8.nytimes.com/packages/pdf/washington/COS%20Memo%205.9.08.pdf
Reforming the Executive Branch, including weeding out pro-industry political appointees (hacks) and undoing all the regulatory damage of the Bush regime will be an enormous challenge of the next administration.
But this type of corruption is not limited to Washington DC beltway.
Right here in NJ, we face similar challenges at the Department of Environmental Protection (DEP). It is widely recognized that DEP never recovered from the Whitman Administration’s budget and staff cuts. But very few are aware of the damage to the environment done by pro-industry imposed policy and regulatory changes that still have not been repaired after 8 years of Democratic administrations.
On top of all that, personnel problems caused by pro-industry and/or incompetent middle and upper management block needed environmental progress. DEP as an institution is in real distress.
Worse, we face equivalent threats of a Card/Bolten anti-regulatory policy in multiple places:
1) DEP budget cuts continue – the third consecutive Corzine budget cuts environmental funding;
2) The Corzine Administration’s Fast Track pro-economic development regulatory policy and the pending Permit Extension Act legislation would roll back and freeze environmental protections;
3) Under the bogus pretext of a depressed housing industry, DEP Commissioner Lisa P. Jackson established a “Permit Efficiency Task Force” stacked with industry lobbyists to further roll back protections; (see: http://nj.gov/dep/permittf/
4) Jackson is promoting privatization and more deregulation of the toxic site cleanup program. Yet these same policies are the causes of multiple very visible and controversial botched cleanups – guess we should call it “the surge” on the environment.
When a set of privatization and deregulation policies are not working, just do more of them. That’s working for Bush in Iraq, right?

DEP Caves to Bristol-Myers Squibb, IntraWest Mountain Creek Resort, & other developments – abandons Pequest, Wallkill and Stony Brook

Bill WolfeBPG properties 359 acre Hopewell Campus – proposed 800,000 square foot expansion along rural Carter Road impacts a tributary to Stony Brook. Textbook car dependent sprawl.

“Also noteworthy, is the fact that Governor Jon Corzine personally visited Mountain Creek and expressed his belief that the proposed redevelopment project is a definitive example of smart, environmentally sensitive, economic development.”
Schoor-DePalma engineers – comment that killed Black Creek in Vernon to allow destruction of threatened Bog Turtle habitat (see: http://www.peer.org/docs/nj/08_27_5_intrawest_black_creek_comments.pdf
Trenton – A long awaited decision on protecting New Jersey rivers and lakes from pollution and development is disappointingly modest and pockmarked with exceptions and loopholes, according to Public Employees for Environmental Responsibility (PEER). As adopted this past week, many key water-bodies will not be safeguarded and any added protections are unnecessarily vulnerable to legal challenge.

Bill WolfeBPG Hopewell campus

The May 20, 2008 decision by the state Department of Environmental Protection (DEP) applies the “Category One” (C1) designation, effectively the state’s highest level of water-quality protection which limits development impacts and discharges of pollutants, to streams, rivers and lakes that either support critical wildlife or feed into a major drinking-water source.
According to DEP, it adopted C1 status for 686 of the 910 stream miles proposed back in 2007. DEP’s Earth Day press release boasted that the proposal was “unprecedented” and “the largest ever” – both factually false claims, as the McGreevey DEP designated over 3,000 miles of C1 buffers. Ironically, the DEP press release was titled “DEP Delivers on Commitment to Protect Water Quality” – a commitment clearly contradicted by major concessions to powerful interests.

Bill WolfeBMS Hopewell campus expansion – pressure from BMS forced DEP to eliminate proposed Stony Brook C1 designation

Even the DEP claim on 686 new stream miles protected is an overstatement, because approximately half of these new C1 waters (between 250-400 miles) are located within the Highlands Preservation Area and thus were already protected by the Highlands Act. That Act legislatively established 300 buffers on all waters in the Preservation Area, designated all Preservation Area waters C1, and strictly prohibited water quality degradation. Further drawbacks which undermine the DEP claim of a major water quality achievement include the following serious flaws:

Bill WolfeStony Brook, directly behind BMS Campus.

• DEP eliminated the backlogged C1 “candidate waters” list of 1,600 streams that DEP scientists determined met the C1 criteria. This backhanded repeal opens more than 1,000 stream miles to development; and

Bill WolfeThese headwaters of Stony Brook were not even considered by DEP as a C1 candidate, despite exceptional ecological values. DEP ignored a petition from the Stony Brook Watershed to do so. Hundreds of miles of headwater streams remain unprotected statewide.

• DEP adopted a new, less protective C1 designation methodology. DEP embraced this revised C1 criteria despite virtually unanimous opposition from the environmental community. These method revisions create two problems by -
1) Erecting arbitrary, non-scientific barriers against safeguarding a wide variety of water-bodies, such as those providing drinking water for less than 100,000 people, important for recreation, and saline waters (estuaries and coastal bays); and

Bill WolfeStony Brook is a DEP stocked trout stream.

2) Exposing the entire plan to new legal challenges. Just last year, the prior C1 criteria had been upheld by the Appellate Division as scientifically sound and legally valid against a lawsuit by the Builders Association. Thus there was no reason to change the method and invite new legal challenge.
“DEP seems determined to snatch defeat from the jaws of victory by giving industry opponents a second bite at crippling lawsuits,” stated New Jersey PEER Director Bill Wolfe, a former DEP official and architect of the C1 program initiative from 2002-2004. “A new round of litigation could tie things up for some time and, if successful, force DEP back to the drawing board, undoing years of work.”

Bill WolfeDEP Commissioner Jackson held Earth Day photo op at the Stony Brook watershed – only to abandon proposed upgrade to accomodate BMS.

DEP eliminated a portion of the Stony Brook (Hopewell), portions of the Wallkill River, including tributary Black Creek (Vernon), and portions of the Pequest – one of NJ’s most renowned trout streams – from the C1 final list due to corporate pressure. DEP dropped protection for a specific stretch of the Stony Brook to accommodate 1.6 million square feet of proposed corporate office park expansion and expansion of the Pennington sewer plant. Similarly, it abandoned high quality waters on the Wallkill to satisfy InraWest’s massive 1.6 million ski resort in Vernon.
“Loopholes in this decision read like they were written by their corporate beneficiaries,” Wolfe added, noting that specific DEP stream deletions match public comments filed by developer opponents and surgically accommodate their developments. “DEP did not even protect the portion of Stony Brook where it held its Earth Day photo-op press conference announcing its plan.”

Bill WolfePennington water supply well sucks water from Stony Brook, just feet from BMS and sewage plant discharge. DEP abandoned this portion of the Brook, allowing treatment plant and BMS expansions.

Bill WolfeBuilders go wild before Senate Legislative Oversight Committee on May 1, 2008. They strongly opposed C1 protections.

Opponents who filed comments against the original C1 plan include the state Builders Association, Business and Industry Association, Chamber of Commerce, Bristol Myers Squibb (Hopewell Campus expansion), Intra-West Mountain Creek Resort, BPG (former Lucent Technologies Hopewell site), Princeton Institute for Advanced Study, Heritage Minerals, and the Departments of the Army (Picatinny Arsenal) and Air Force. Significantly, the DEP plan was also opposed by both Governor Corzine’s Office of Smart Growth and the state Department of Transportation.
(comments provided upon request)
Prior to the proposal, the environmental community met with and tried to warn Jackson not to go forward with gutting the C1 method. This strongly worded January 24, 2007 letter was ignored – later comments on the proposal restated these objections: http://www.peer.org/docs/nj/c1_letter.pdf
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Read the2007 Earth Day release ballyhooing the original C1 proposal
http://www.nj.gov/dep/newsrel/2007/07_0023.htm
View the C1 decision document with revisions noted
http://www.peer.org/docs/nj/08_27_5_c1_decision.pdf
Compare the full original proposal
http://www.nj.gov/dep/rules/notices/052107b.htm
Review how DEP weakened C1 stream buffers earlier in 2008
http://www.peer.org/news/news_id.php?row_id=986
New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability

“corporate makeover of politics struggling to be democratic”

Bill Wolfe

On this Memorial Day, as I sit on my porch, basking in gorgeous tree dappled sunlight, my tranquillity is upset by reading a powerful analysis that concludes that our vaunted Constitutional republic has been hijacked.
This reading forces me to reflect upon my own career – and recall the fact that some of my own most cherished values and aspirations have been relegated to the ash heap.
For those who still read and reflect, let me share an excerpt that captures the essence of sense of loss:
“[Corporate values are] [n]ot, one might think, the kinds of qualities desirable in those sworn to “protect and defend” a Constitution of limited powers and checks and balances. That familiar phrase from the oath of office points to the traditional understanding that served to distinguish public from private institutions. Its crucial supposition was the government consisted of nonprofit institutions whose basic responsibility was “to promote the general welfare.” The measure of performance was political, not economic; the common good, not the bottom line. That ideal was to be represented in its personnel; they were depicted in democratic terms, as “public servants” whose ranks were open to all who were qualified, and dedicated not to acquisitive pursuits but to defending and improving the lives of citizens. The ideal of public service was meant to embody a mode of conduct and a set of ideals emphasizing the responsibilities accompanying public power and the near absolute contrast between “government service” and business practices.
[...]
Public servants were supposedly the instruments by which a democracy could be realized. That same ideal of the public servant, chosen solely on the basis of merit, represented the point where the ideal of democracy and republican elitism converged in a kind of salutary tension; between the values of commonality and equality and the claims of excellence, not of superiority. The ideal of a merit system was an offshoot of the classical republican conceptions of elites. Classical republicanism had conceived elites in purely political terms: disinterested service on behalf of the public good, not the amassing of wealth. The corporate revolution has reshaped the republican ideal in the image of the corporate executive. In the process it has ruptured the alliance between the demos and the elite, between democracy and republicanism.
Instead of a convergence of commonality and excellence, the skills and ethos of aggressive management – its culture and beliefs and practicices, its forms of corruption – have been rationalized into a corporate makeover of politics struggling to be democratic. It signals the defeat and corruption of commonality. Accordingly, recent policies of the Bush administration have deliberately promoted inequalities of wealth, taxation policy, health care, educational opportunities and life prospects. In the process the egalitarian momentum generated during the thirties and revived during the sixties … has been reversed. As a result democracy has been reduced to a rearguard action, struggling not to advance and improve the lives of the Many but merely to defend the shredded remains of earlier achievements.”
(emphases mine)
(”Democracy Incorporated” Sheldon Wolin. page 145-146)
[closing note: [if this post in any way implies that I support the technocratic elite model, be advised that I come down firmly on the side of Dewey – see Dewey Lippman debate: http://www.wier.ca/~daniel_schugurens/assignment1/1922lippdew.html

[Update: most recent - Bergen Record Editorial: Soiled again
http://www.northjersey.com/opinion/editorials/Soiled_again052208.html
Let me preface this post with two brief points of perspective. First, I strongly support additional funding for school construction and operations in Abbott school districts. Second, I worked for Scott Weiner when he was Commissioner of DEPE and have great respect for his intelligence, accomplishments, and commitment to public service.
It is with that perspective in mind that I throw down this challenge to Weiner, one he invited by calling out critics of NJ's schools construction program.
According to yesterday's Star Ledger article, Weiner not only went on offense, he expanded the policy purposes of the schools program to reflect a new development orientation:
Lawmakers ask extra $2.5B for school construction
http://www.nj.com/news/ledger/jersey/index.ssf?/base/news-0/1211431109318780.xml&coll=1
"Weiner said the authority is also working on plans to generate additional funding for schools by incorporating them into broader development projects or by selling development rights atop new school buildings.
Weiner insisted the revamped Schools Development Authority has eliminated the management problems that hampered the early years of the program, and called on superintendents to challenge critics who imply the program is still mismanaged.
"We need to be able to call them out on it and say that's simply not true," he said. [end quote].
I will respond to that challenge and ask that you post here (or otherwise make publicly available) responses to these two simple questions:
First question: Inspector General Cooper’s April 21, 2005 Report to former Governor Codey found that $330 million had been spent on sites “patently unsuitable” for schools -perhaps the poster child for these findings are the purchase of a Superfund site in Gloucester City and former Manhattan project site in Union City. Cooper’s Report also found (quoting findings) (full Report here: http://www.state.nj.us/oig/pdf/njscc_preliminary_report.pdf
1) SCC purchased lands that are patently unsuitable for schools or that pose excessive acquisition costs. Sites targeted for school construction have been found to be environmentally contaminated, requiring substantial additional expenditures for cleanup and remediation;
2) SCC has minimal guidelines for what constitutes an acceptable site for a school and generally accedes to the site submitted by local school authorities. To date, the SCC has committed to or paid approximately $328.8 million for the acquisition of sites or associated costs;
3) SCC has no mechanism to assure that he Board is provided with a complete profile of candidate sites or with information on potential alternate sites;
4) [these flaws] hamper SCC’s ability to bring proper due diligence to land acquisition.
So my question is: I understand that you have revoked the Memorandum of Understanding (MOU) with DEP regarding environmental review of school sites (per your comment in the Bergen Record story on the Union City Manhattan Project site). But what process has replaced that DEP MOU? What standards and safeguards have been put in place to guarantee that the community is involved in school siting decisions; that schools are not sited on contaminated land unless it is demonstrated that there are no clean alternatives; that complete cleanups take place (permanent remedy, unrestricted use) at any contaminated site that is selected; and that we stop wasting lots of money on avoidable cleanup costs due to bad siting decisions and otherwise stop needlessly putting our children at risk?
What specifically has SDA done to set enforceable standards and policies to prevent recurrence of these problems?
For additional details, see also:
NEW JERSEY SCHOOL CONSTRUCTION REFORM GETS FAILING MARKS — No Environmental Reviews Prior to Building More Schools on Toxic Sites
http://www.peer.org/news/news_id.php?row_id=899
NEW JERSEY LEAVES DOOR OPEN FOR MORE SCHOOLS ON TOXIC SITES — Governor’s “Working Group” Dodges Question of Acquiring Toxic Land for Schools
http://www.peer.org/news/news_id.php?row_id=762
RADIOACTIVE SCHOOL SITE IS TIP OF NEW JERSEY TOXIC ICEBERG — Over 100 School Site approvals expedited under Secret Deal
http://www.peer.org/news/news_id.php?row_id=679
Second question: You stated that
“the authority is also working on plans to generate additional funding for schools by incorporating them into broader development projects or by selling development rights atop new school buildings”
Why is everything considered a development, finance, or moneymaking operation?
Why can’t the basic problems be solved before sophisticated new policy initiatives are embraced? Has this Administration learned nothing from the “asset monetization” fiasco?
Looking forward to your reply. Governor Corzine has not responded to my letters, See:http://www.peer.org/docs/nj/06_24_4_corzineltr.pdf

Inspector General Asked Why “Kiddie Kollege” Law Failed

Bill WolfeDEP Commissioner Lisa P. Jackson

[Update. See: Board defends handling of Brighton school site
http://www.myheraldnews.com/view.html?type=stories&action=detail&sub_id=35723
See also my letter of clarification:Download file
The purchase of a polluted former industrial site for conversion to a Clifton High School without environmental testing shows that legislation enacted last year in the wake of similar scandals from toxic-laden schools and day-care centers is not working, according to Public Employees for Environmental Responsibility (PEER). PEER today asked New Jersey’s Inspector General to determine why anti-pollution rules were set aside by state and local environmental and educational officials.
The $11 million high school annex for 500 students in Passaic County is located in an old industrial site which used more than 50 types of toxic chemicals, including pesticides, arsenic, and a host of volatile organics. Despite this history, the school district did not perform a “due diligence” investigation into potential hazards before purchasing the property. In addition, according to an analysis of the Clifton case filed by PEER:
1) The state Department of Environmental Protection (DEP) allowed local construction to begin prior to certifying that the entire site required “no further action” to clean it up;
2) A stream running behind the property was not tested for contamination;
3) Soil samples were limited to only certain pollutants in selected locations;
4) the school district failed to notify the public and DEP about known toxic contamination of soil and groundwater at the sites; and
5) DEP expedited approvals at the behest of legislators and DEP Managers held private meetings that excluded concerned citizens.
“What is going on at the Clifton high school is precisely what the highly touted reforms enacted just a few months ago were supposed to prevent,” stated New Jersey PEER Director Bill Wolfe, referring to the “Kiddie Kollege” legislation, named after a day-care center was found to be operating in a mercury-laden former thermometer factory. “We want the Inspector General to look into this case, name names and hold responsible officials accountable; otherwise we can expect school construction debacles like this to recur on a regular basis.”
In a prior 2005 report, the Inspector General determined that New Jersey has spent nearly $330 million to purchase environmentally contaminated lands found by to be “patently unsuitable” for schools, including a radioactive former Manhattan Project facility in Union City and a Superfund site in Gloucester City. This latest experience in Clifton suggests that the underlying flaws in the school construction program remain unabated.
One aspect of the case PEER is asking the Inspector General to review is private meetings between elected officials who were promoting the project and top DEP officials. It is unclear whether DEP improperly expedited the school project in response to political pressure.
“The safety of a high school should not be hashed out behind closed doors with politicians without the parents present,” added Wolfe. “I am utterly amazed that New Jersey is still putting its children into facilities built on some of the nastiest toxic pits in the state.”

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Read the PEER letter to the Inspector General
http://www.peer.org/docs/nj/08_20_5_ig_ltr.pdf
View the PEER analysis of problems with the Clifton high school
http://www.peer.org/docs/nj/08_20_5_analysis_of_Clifton_school.pdf
Look at e-mails about closed door meetings inside DEP
http://www.peer.org/docs/nj/08_20_5_meetings_emails.pdf
See the weaknesses in the school construction reforms enacted in 2007
http://www.peer.org/news/news_id.php?row_id=899
New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability.

Why is Legislature extending a loan program under investigation?

Bill Wolfe

According to Inspector General Cooper’s February 28, 2008 Report to Governor Corzine on the Encap project boondoggle:
“ENCAP OBTAINS $212M IN PUBLIC FINANCIAL ASSISTANCE FROM EIT/DEP
…. Counsel for EnCap approached the Executive Director of the Environmental Infrastructure Trust (EIT) and various State officials including the Treasurer to propose that EIT and DEP examine the eligibility criteria for their programs in order to issue loans to EnCap…….Documents obtained by OIG indicate that EnCap representatives continued in their efforts to obtain the low interest EIT and DEP funding for the Project despite the fact that a decision had not been made concerning EnCap’s eligibility for EIT and DEP loans……Furthermore, in October 2003, Wisler sent DEP Commissioner Campbell an analysis of the law promoting EnCap’s eligibility for EIT and DEP funding. Acknowledging that the EIT and DEP have traditionally issued clean water loans to public entities, …Wisler argued that the then current law allowed for the issuance of loans to EnCap” (starts on page 111 of a must read report: http://www.state.nj.us/oig/pdf/Meadowlands%20Remediation%20and%20Redevelopment%20Project.pdf
Thus began another tawdry chapter in this saga of corruption and insider special interest deals. You really must read this Report to get a glimpse of how the dirty deals are done in Trenton. I won’t go into all the ugly details here – but, take my word for it, they are ugly – or better yet, read the report yourself.
Well anyway, getting back to the water off the duck’s back, my purpose for writing this post.
IG Cooper found all kinds of major problems, from outright fraud and corruption, to mismanagement, incompetence and bad policy in the DEP and Environmental Infrastructure Trust loan programs. To begin to root some of this out, the Senate held what I assumed to be the first of several legislative oversight hearings last month, calling IG Cooper to testify and present her Report. There were calls for a criminal investigation.
So, needless to say, I was rather surprised to see a package of bills to extend and make appropriations to the EIT loan program suddenly appear on yesterday’s Senate Environment Committee’s agenda (see S1823 et al http://www.njleg.state.nj.us/BillsForAgendaView.asp
Surprise turned to shock after I read the bills – they make no change whatsoever to the EIT/ or DEP programs, other than to extend the 2007 expiration date of the Trust’s authority to issue bonds. Nothing. Nada. Zip.
Shock turned to disgust when I appeared as the sole witness to testify before the Committee and realized that the gameplan was to basically ram the extension and appropriations bills through with absolutely no effort to even think about fixing the problems Cooper documented. (testimony here: Download file
Why on earth should one more dime be provided to this program until the Encap related problems are fixed?
Why is there no outrage that the Corzine administration is expanding the use of the flawed policies that led to Encap, specifically allowing private uses of public funds dedicated to clean water, for all sorts of taxpayer subsidies for new development schemes?
Corzine’s DEP adopted new regulations that not only do not restrict the uses of these clean water funds to public entities for strictly clean water purposes, they expand the use of these funds to subsidize private development schemes via “conduit financings”, “transit villages” and “transfer of development rights” projects” (see: NEW JERSEY FLOATS DEVELOPMENT SCHEMES ON CLEAN WATER FUNDS — Golf Courses, Transit Villages and Transferable Building Rights Are Eligible Projects http://www.peer.org/news/news_id.php?row_id=813
DEP has identified a $16 BILLION unmet need for investment in clean water infrastructure – see: HUGE NEW JERSEY WATER INFRASTRUCTURE NEEDS NOT BEING MET — State’s Economic Future Threatened by Not Investing in Environmental Quality http://www.peer.org/news/news_id.php?row_id=764
Not one dime of clean water money should go to subsidize new development schemes. Period.
And the EIT and DEP programs should not be reauthorized, extended or receive any new appropraitions until the law is amended to prohibit the use of clean water funds for private development schemes, as was done in Encap.

You like roses and kisses and
pretty men that tell you all those pretty lies.
Pretty lies.
When you gonna realize they’re only pretty lies.
Only pretty lies, just pretty lies.
~~Joni Mitchell

Bill WolfeJanine Commerford, Assistant Commissioner, Mass. DEP (Center), Irene Kropp Assistant Commissioner NJ DEP (right) and Mass. cleanup consultant (left) testify to Senate Envrionment Cmte. Commerford has Bachelor and Master degrees in geology from MIT

In reporting the news from Lake Wobegon Minnnesota, Garrision Keillor, host of the popular NPR radio show “A Prarie Home Companion“, ends with the famous line:
“That’s the news from Lake Wobegon, where all the women are strong, all the men are good looking, and all the children are above average”. http://prairiehome.publicradio.org/
In a similar fashion, two earnest folks from Massachusettss dropped in to Trenton last Monday to advise the Senate Environment Committee that all the corporations were dedicated to protecting the environment, all the consultants were honest and competent, and all government officials ethical and well intentioned.

Bill WolfeCommerford downplayed data on the high percentage of privatized toxic site cleanups that fail audits: “failure may mean that someone hasn’t explained themselves very well” she said.

Massachusetts DEP Assistant Commissioner Janine Commerford provided an overview of the privatized toxic site cleanup program. Her 11 minute testimony prompted 45 minutes of questions from the Committee.

Bill WolfeSenate Environment Committee Chairman Bob Smith (D/Middlesex).

Committee Chairman Bob Smith probably made the right decision in prohibiting public testimony, lest the NJ lobbyists burst their Massachusetts bubble with some harsh rebuttals from the NJ experience in toxic site cleanup. We don’t want to be rude to such nice guests, now, they travelled all the way from Massachusetts!

Bill Wolfe

Listening to the Committee’s deferential demeanor and softball questions, it was obvious that the Committee was … ahem… stimulated by the Massachusetts testimony.
According to the May 20 Courier Post story, Vice Chairman Jeff Van Drew even dropped the “M” bomb to describe the testimony. Van Drew concluded:

Bill WolfeVice-Chairman Jeff Van Drew (D/Cape MAy)

“It was the perfect marriage of insuring we are maintaining the environment and at the same time being cost-effective and stimulating the private sector”

Bill Wolfe

Well now that the ….ahem…. dust from the hearing has settled (or is the bloom off the rose?), let me lay out some data (no pun intended) to critique and distinguish the Massachusetts program from the NJ experience.
First of all, Commerford testified than in Massachusetts, only 2% of toxic site cleanups leave contaminated soils under a cap and include land use deed restrictions. Over 30% are cleaned up to background. There are no continuing monitoring and maintenance requirements.
In contrast, NJ relies almost exclusively on caps and deed restricts more than 90% of sites, allowing toxic soil and/or polluted groundwater to remain (groundwater CEA’s). Virtually none are permanently cleaned up to background levels. Last year, when DEP finally took a look (after 15 years of blindly issuing thousands of approvals that relied on them for “public protection”), DEP found that 80% of deed restricted sites were in violation of basic requirements, like filing the deed notice. These findings of widespread non-compliance prompted DEP Commissioner Lisa Jackson to warn that the DEP voluntary compliance system was broken and the private sector could not be trusted:
“We realize that the state’s system that allows self-reporting for monitoring of these contaminated properties is broken, and we are taking the first steps toward fixing this,” Commissioner Jackson said. “Still, this situation seriously undermines the department’s ability to ensure protection of public health and the environment. We are committed to using every enforcement tool available to bring these responsible parties into compliance as promptly as possible.”
(see: DEP TAKES ENFORCEMENT ACTIONS AGAINST RESPONSIBLE PARTIES FOR FAILURE TO MEET CONTAMINATED SITE MONITORING REQUIREMENTS
http://www.nj.gov/dep/newsrel/2007/07_0041.htm
DEP’s compliance effort had to rely on a paper file review, because they have only 1 “cap cop” to field inspect thousands of capped sites across the state – no big deal I guess, because the Massachusetts program does not even require ongoing oversight, monitoring, and maintenance (Wonder what they do with those pesky groundwater cases? NJ has over 6,000 of them impacting drinking water supplies) .
Second, Commerford testified that 20 of her staff conducted 3,000 “audits” of private toxic site “cleanups” (that’s 150 per staff ~ roughly 3 per week). She also said that an “audit” took “3 hours” to conduct. So what Massachusetts calls an audit is not even equivalent to what NJ DEP would call an administrative completeness determination review. I have conducted numerous file reviews of toxic site cleanups. Believe me, 3 hours barely enables a superficial scan of the scientific documents and regulatory correspondence at a typical cleanup site.
Third, with respect to compliance and enforcement, Commerford testified that Mass DEP had never initiated criminal investigations; had issued financial penalties in only 1 case (for over 30,000 “cleanups”) and only for $1,000 per violation. Commerford said that the privately controlled Licensing Board she also Chairs had revoked only 26 licenses over a 15 year period at almost 50,000 cases. Commeerford’s idea of enforcement deterrence was to post notices of license revocation on her website.
In comparison to NJ, while NJ DEP has been extremely lax in enforcement actions, there have been criminal referrals in dozens of cases. In many other highly visible cases, gross incompetence, negligence, and fraud by cleanup consultants and corporations have prompted lawsuits, newspaper headlines, media investigative series, and public outrage across the state. This has prompted an unprecedented series of 3 consecutive years of legislative oversight of the failed DEP cleanup program.
Fourth, Commerford promoted more “non adversarial face time” between DEP and private consultants to “build relationships and trust”. She acknowledged that she had “gone easy on enforcement” and once unsuccessfully tried to “stop being nice”. She was oblivious to the need for a critical distance between the regulator and the regulated community. She seemed ignorant of the extensive public policy literature on the damaging consequences of “agency capture”.
Fifth, Commerfod used ideologically loaded industry propaganda code words that revealed bias. Specifically, Commerford parroted the extremely negative connotative phrase “command and control” to describe traditional government regulatory oversight. At the same time, she spewed praise for the glories, repeatedly claiming how well “the private market” was working.
Last, Commerford was extremely vague on the audit data. In attempting to downplay and dismiss high audit failure rates, she erroneously claimed that her agency “did not grade” audits. That is false. According to the Licensing Board’s own Loss Prevention Committee March 2006 Report, “audits” are in fact “graded”. Specifically, “audits” where “serious violations” are discovered are issued a “Notice of Non-Compliance” (NON). According to the Report’s data, as of 2006, 386 “serious violations” were found (a 46% rate) and issued NON’s (see page 4-5 of Report @ http://www.lspa.org/download/whitepapers/InternReportForm1112005.pdf
So, while Commerford’s testimony was refreshingly engaging by Trenton standards, unfortunately it was both sketchy on critical details and dangerously naive.
Certainly not a model for NJ to consider.
For a more realistic view based on DEP and Massachusetts’ own audit data, see: NEW JERSEY MODEL FOR PRIVATIZED TOXIC CLEAN-UPS FAILS AUDITS — Serious Violations Found in More than Two-Thirds of Audited Massachusetts Sites
http://www.peer.org/news/news_id.php?row_id=1034
NEW JERSEY ADMITS PRIVATIZED CLEAN-UP PROGRAM HAS FAILED — State Relies on Industry and No Longer Inspects Sites Until They End Up in the News http://www.peer.org/news/news_id.php?row_id=932

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