WolfeNotes.com

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

Read more…

According to a story in today’s Bergen Record:

Safety testing lax on new school sites
http://www.northjersey.com/education/educationnews/Clifton_school_site_lacks_test_for_pesticides.html

“Nearly four years ago, Clifton voters approved an $11 million plan to convert an old industrial building into classrooms for 500 high school students.
They hadn’t been told that groundwater on the 3-acre site had excessive levels of pesticides, nor that arsenic and other poisons were present at elevated levels and that other dangerous organic compounds had seeped into the ground just outside the building’s rear entrance.

A review of the controversial [school construction] project by The Record reveals that Clifton school officials recommended the property to voters without doing a single environmental test or obtaining a sign-off from state environmental regulators.

In interviews last week, state officials acknowledged that there are essentially no regulations stipulating that school districts test potential school sites before seeking voter approval.
[clip]
“This is more than a crisis. This is a tragedy, a failure of our government at a time when we need protection more than ever,” said Roy Jones, a board member of the non-profit New Jersey Environmental Justice Alliance. “If the state can’t protect us on stuff like this, what’s the use in having a government at all?
[clip]
“State officials have their heads buried in the sand on these cases because they know that the problem is a potentially huge one that will be very hard, and expensive, to address,” said Bill Wolfe, a former official of the state Department of Environmental Protection who now runs the non-profit advocacy group Public Employees for Environmental Responsibility.

For links to documents and an analysis of the underlying causes of the problems, see:

A Tale of Two Toxic Schools
http://blog.nj.com/njv_bill_wolfe/2008/02/a_tale_of_two_toxic_schools_ho.html

I haven’t done a quantitative analysis, but it seems obvious that media is increasingly tawdry, tabloid, and irrelevant. Mindless coverage and uncritical repetition of government propaganda divert public attention away from real substantive problems, and worse, actually poison the well of democratic dialogue.
Media shares responsibility for our sorry state of affairs (Hint to you Ledger editors, writers, and NJ Voices “bloggers” and anonymous electronic commenters).
When I try to raise these issues, I get attacked by petulant and arrogant “journalists”, so I’ll let well known journalist Bill Moyers explain, in the words of Marvin Gaye “What’s Goin’ On” (listen to that wonderful tune here: http://www.youtube.com/watch?v=Y9KC7uhMY9s
. . . the philosophy popularized in the last quarter century that “freedom” simply means freedom to choose among competing brands of consumer goods, that taxes are an unfair theft from the pockets of the successful to reward the incompetent, and that the market will meet all human needs while government itself becomes the enabler of privilege — the philosophy of an earlier social Darwinism and laissez-faire capitalism dressed in new togs — is as subversive as Benedict Arnold’s betrayal of the Revolution he had once served.

(from his new book “Moyers on Democracy” http://www.alternet.org/democracy/85521/?page=entire
Because I am an environmental advocate, I’ll leave off with this excerpt:
The earth we share as our common gift, to be passed on in good condition to our children’s children, is being despoiled. Private wealth is growing as public needs increase apace. Our Constitution is perilously close to being consigned to the valley of the shadow of death, betrayed by a powerful cabal of secrecy-obsessed authoritarians. Terms like “liberty” and “individual freedom” invoked by generations of Americans who battled to widen the 1787 promise to “promote the general welfare” have been perverted to create a government primarily dedicated to the welfare of the state and the political class that runs it. Yes, Virginia, there is a class war and ordinary people are losing it. It isn’t necessary to be a Jeremiah crying aloud to a sinful Jerusalem that the Lord is about to afflict them for their sins of idolatry, or Cassandra, making a nuisance of herself as she wanders around King Priam’s palace grounds wailing “The Greeks are coming.” Or Socrates, the gadfly, stinging the rump of power with jabs of truth. Or even Paul Revere, if horses were still in fashion. You need only be a reporter with your eyes open to see what’s happening to our democracy. I have been lucky enough to spend my adult life as a journalist, acquiring a priceless education in the ways of the world, actually getting paid to practice one of my craft’s essential imperatives: connect the dots.
The conclusion that we are in trouble is unavoidable. I report the assault on nature evidenced in coal mining that tears the tops off mountains and dumps them into rivers, sacrificing the health and lives of those in the river valleys to short-term profit, and I see a link between that process and the stock-market frenzy which scorns long-term investments — genuine savings — in favor of quick turnovers and speculative bubbles whose inevitable bursting leaves insiders with stuffed pockets and millions of small stockholders, pensioners, and employees out of work, out of luck, and out of hope.
And then I see a connection between those disasters and the repeal of sixty-year-old banking and securities regulations designed during the Great Depression to prevent exactly that kind of human and economic damage. Who pushed for the removal of that firewall? An administration and Congress who are the political marionettes of the speculators, and who are well rewarded for their efforts with indispensable campaign contributions. Even honorable opponents of the practice get trapped in the web of an electoral system that effectively limits competition to those who can afford to spend millions in their run for office. Like it or not, candidates know that the largesse on which their political futures depend will last only as long as their votes are satisfactory to the sleek “bundlers” who turn the spigots of cash on and off.
“MERCY, MERCY, ME” http://www.youtube.com/watch?v=U9BA6fFGMjI&feature=related