WolfeNotes.com

[Update below]

In a significant legal setback for Dupont, yesterday a US District Court judge ruled in favor of a class action lawsuit filed by neighbors of Dupont’s Chambers Works facility in Deepwater NJ.

Dupont has poisoned nearby drinking water wells and local public water supply systems with the toxic chemical commonly called PFOA (or C8), ammonium perfluorooctanoate.

A copy of the decision can be found here.

US District Court judge Renee Marie Bumb found that Dupont could face a class action suit by up to 15,000 neighbors who own private drinking water wells within a 2 mile radius of the Dupont plant, or are customers of the Penns Grove NJ water supply system.

The judge ruled that neighbors could sue as a class on grounds of nuisance and public nuisance, including whether Dupont’s release of PFOA to air and groundwater constitutes “an abnormally dangerous activity” subject to a strict liability standard in New Jersey. According to the NJ DEP::

Currently [as of 8/8/09], private wells within two miles of Dupont’s Chambers Works facility in Carneys Point Township, Salem County, are being sampled and analyzed for PFOA. DuPont has agreed to voluntarily conduct this sampling and to provide treatment to those private wells that exceed the USEPA Provisional Health Advisory level of 0.4 ug/L. Because the Department does not have a promulgated drinking water standard or an interim specific ground water criterion for PFOA, the Department currently does not have regulatory authority to require DuPont to provide treatment to wells impacted by PFOA to 0.04 ppb. (link)

Dupont is aggressively challenging DEP’s PFOA risk assessment and recommended drinking water standard of 0.04 ppb (ten times LOWER than EPA’s provisional health advisory level of 0.4 ppb).

We have been writing about Dupont’s attempts to manufacture scientific uncertainty in order to delay and frustrate DEP’s efforts to develop a stringent 0.04 ppb drinking water standard.

Dupont is also seeking to stack a new DEP Science Advisory Board with Dupont scientists in hopes of influencing DEP scientific risk assessments and weaken regulatory standards.

It is likely that if the neighbors prevail in this case, Dupont would be exposed to significant economic liability for PFOA pollution. DEP has found that other public water supply systems and private drinking water wells in NJ are polluted with PFOA. According to DEP:

PFOA has been detected in New Jersey public water supplies in the vicinity of DuPont Chambers Works as well as in other parts of the state. In 2006, PFOA was detected at up to 0.19 ppb and 0.0179 ppb in ground water samples from two different public water systems near the Dupont Chambers Works Facility. Also in 2006, the Department conducted a study of PFOA and a related chemical, perfluorooctane sulfonate (PFOS), in 23 other New Jersey public water supplies. This study has been published in a peer reviewed journal, Environmental Science & Technology and is posted on the Department’s Division of Water Supply web page. Of the 23 public water systems sampled in this study, the highest level detected was 0.039 ppb.

Based on recommendations by the Department, PFOA and PFOS were analyzed in 2007-2008 in over 200 samples collected by 18 public water systems throughout the state, including 12 systems sampled in the 2006 study. PFOA concentrations ranged from non-detectable (<0.01 ppb) to 0.14 ppb in water from an unconfined well near Chambers Works. PFOA was detected above the Department’s health-based guidance level of 0.04 ppb in at least one sample from five systems. Results of quarterly sampling of several systems have consistently exceeded the health-based guidance of 0.04 ppb in one or more points-of-entry.

[Update – 10/11/09 – This is pathetic.

Corporate giant Dupont, operating one of the largest chemical plants in the world, pollutes its home town water supply. Neighbors launch a class action lawsuit and win a huge early decision. And all the local paper can do is muster a tiny box story? 

Seems to be a news blackout in the rest of NJ. No wonder things are so screwed up. ~~~ ed update

We wrote about yesterday’s NJ Business and Industry Association (NJBIA) panel discussion here. Among many other problems illustrated by this event, I was especially disturbed by DEP Commissioner Mauriello’s remarks about the new Science Advisory Board (SAB), the DEP’s proposed rollback of phosphorus standards, and implementation of major federal Clean Water Act cleanup requirements know as the “Total Maximum Daily Load” or TMDL program.

Mauriello managed to link both SAB and TMDL issues, and he did so in a troubling way that has raised major new concerns. We have been following these issues closely.

By way of background, TMDLs are mandated by Section 303 of the federal Clean Water Act when pollution exceeds standards set to protect a waterbody for specific uses, such as: drinking water; supporting healthy aquatic life; fishing; swimming; etc. When waters exceed pollution limits, they are classified as “impaired”. TMDLs set legally enforceable caps on allowable pollution and mandate specific pollution reductions (from all point and non-point sources) to comply with the pollution limits. Virtually every river and lake, and many streams in New Jersey are “impaired” and legally must adopt TMDLs. Almost half of the TMDL pollution problems are caused by phosphorus, which drives eutrophication that kills aquatic life. The additional algae caused by excessive phosphorus also requires additional treatment to meet drinking water standards, which increases costs and health risks associated with disinfection byproducts like trihalomethane in treated tap water.  So TMDLs and a strong phosphorus standard are critical tools in restoring clean water (for background on TMDL, see this).

On the SAB issue, at the NJBIA event, Mauriello took strong exception to statements made in the “blogs” – he was referring to this post, and to this one and to this one. Mauriello said that contrary to what the blogs say, the SAB would be limited in focus to science. He then pledged that the SAB would not be involved in regulatory standards and would not drive policy at DEP.

But just moments later, Mauriello flat out contradicted himself and violated his own pledge to keep the SAB out of controversial regulatory policy and standards issues. And he did so in a way that suggests he does  not understand DEP’s legal obligations to implement the TMDL program.

Specifically, Mauriello questioned the efficiency and effectiveness of the TMDL program and how it is implemented in water pollution permits (NJPDES). Basically, polluters challenge strict permit limits set by TMDLs. Mauriello then stated that his first assignment to the new SAB would be to evaluate the performance of the TMDL program. Obviously, this is a flat out contradiction of his pledge to limit the SAB to  science and not allow the SAB to stray into standards and policy issues.

On the TMDL issue, Mauriello’s comments suggested either complete ignorance of DEP’s scientific and regulatory basis for a controversial new proposed rollback of the phosphorus water quality standards, or he tipped his hand and signaled another major rollback, not only to the phosphorus water quality standards but also to the TMDL program.

Specifically, Mauriello was asked by a water quality consultant to explain why DEP proposed a weaker new narrative standard for phosphorus, why DEP repealed the current strict numeric water quality standard for phosphorus, and, if the proposal is adopted, what impact this would have on the TMDL program. In response, Mariello did not answer this question but instead questioned the effectivness of the TMDL program in general, including suggesting that maybe DEP is rethinking how it implements TMDLs in the NJPDES permit program. (see this for implications)

Both positions presented by Mauriello would be significant setbacks to restoring and protecting water quality in NJ.

To try to get some clarity about what’s going on at DEP on phosphorus, TMDL and SAB,  I wrote the Commissioner the below letter. We’ll keep you posted as this develops, but don’t hold your breath waiting for a reply by Mauriello. 

Commissioner:

I want to follow-up on your remarks on the new Science Advisory Board (SAB) at yesterday’s NJBIA panel discussion. This is especially important because you referred several times to my blogging on that issue and stated that my criticisms were off base.

First, you stated that the NJ DEP SAB was modeled on the EPA SAB. This may be the case. However, you failed to mention a few important facts that are relevant to that modeling exercise:

          1. The EPA SAB is subject to the Federal Advisory Committee Act (FACA). In contrast, your Administrative Order guides DEP SAB. There are significantly different and stronger legally enforceable technical standards under FACA that are not in your AO, particularly with respect to composition, balance, ethics, transparency, and public involvement. Here is a link to FACA so you can do a side-by-side comparison. I would support State counterpart legislation to replace your AO, if you’d like to pursue that option.

          2. The EPA SAB does not replace or displace EPA science. EPA science resources and capacity are increasing. As you know, DEP eliminated the Division of Science and Research and resources and capacity are sharply decreasing. As such, in essence, DEP SAB is both displacing and replacing DEP science.

Second, you stated that the DEP SAB focus will be limited to science and pledged that the SAB will not be involved with regulatory standards or drive policy.

However, your response to the questions by Tavit Najarian was deeply troubling and directly contradicted this statement and pledge.

Najarian asked about the basis for the proposed repeal of the current phosphorus numeric water quality standard and its replacement with a proposed new narrative standard. Najarian then asked what impact the proposed new standard would have on previously adopted and/or currently ongoing TMDLs. 

As you know, the federal Clean Water Act mandates TMDLs for impaired waters.

You replied that you were examining the entire TMDL program to assess its effectiveness and efficiency in attaining surface water quality standards and governing NJPDES discharge permits. This is a laudable and significant regulatory policy and standards evaluation. Such an evaluation could drive policy and improve implementation.

But you then went on and stated that this TMDL assessment would be the first charge to the new SAB!

Obviously, tasking the new SAB with such a TMDL evaluation would allow the SAB to stray far afield of science and bring the SAB directly into controversial water quality standards and regulatory policy issues.

Given the above troubling issues, I urge you to abandon any ongoing effort to task the SAB with the TMDL evaluation you described.

Furthermore, I urge you to abandon the entire current SAB framework, repeal your Administrative Order, and approach the legislature to seek State counterpart law to FACA.

Sincerely,

Bill Wolfe, Director

NJ PEER

[Update: There were about 30 empty seats in the back and there weren’t many builder types at the NJBIA event. Chris Christie had a NJ Builders Assc. event the same day. I wonder what Christie promised the Builders? Were those empty seats builders? Or did the entire corporate crowd just migrate from the NJBIA breakfast to the NJBA luncheon?]

NJ Business and Industry leaders met behind closed doors today at posh Forsgate Country Club to press for more concessions on key environmental regulations to promote economic development.

The NJ BIA event, dubbed “Meet the Decision Makers” featured a panel discussion with DEP Commissioner Mark Mauriello, Senate Environment Committee Chairman Bob Smith (D-Middlesex), Assembly Environment Committee Chairman John McKeon (D-Essex), and Senator Kip Bateman (R-Somerset).

This kind of event – just weeks before a Gubernatorial election – is designed to send a clear political message to DEP to back off enforcement and to continue to weaken environmental regulations to promote economic development. It is another example of how powerful lobbyists for special interests are granted preferential high level access and are able to work behind the scenes to influence policy, gut environmental protections, and politicize science.

At a time when DEP budgets are slashed, work related travel eliminated, and the undue political influence of special interests is the focus of ethics and corruption investigations across the state, this event sends exactly the wrong message.

A September 28, 2009 email by DEP legislative aid John Hazen – who reports to Mauriello – reveals that Senator Smith demanded specific DEP replies to a series of questions to advance the NJBIA agenda.

Hazen solicited responses from DEP staffers to the following questions posed by NJBIA and conveyed to DEP by Smith:

John Hazen 9/28/2009 11:50 AM >>>

On October 9th NJBIA will be hosting Commissioner Mark Mauriello, Senator Bob Smith, Assemblyman John Mckeon And Senator Kip Bateman For A “Meet The Decision Makers Event”.

In preparation, Senator Smith’s office has contacted me to see if we can provide him with some background/briefing/info to answer the following questions. Can you please review the following and get back to me with a brief writeup on your respective topics? Thanks.

1. What are your goals going forward, not only in the Lame Duck Session, but beyond?

2. What is the status of the Licensed Site Remediation Professional program?  How many temporary licenses have been issued?  What is the status of the board?

3. What is the status of the Water Quality Management Planning process? Where have you seen problems?  How are you dealing with the conflicts arising from the sewer service area maps the department is using?

4. What is the status of the Science Advisory Board?  What are the first few issues you see them tackling?

5. If the bond act fails, do you see the need for an immediate stable source of funding for open space and farmland preservation?  If the bond act passes are you still contemplating a water tax?

6. As companies do a better job at lowering emissions, what are the challenges you see in funding the Title V program? Is it fair to raise fees on companies that are taking steps to lower emissions and improve the overall air quality of the State?

7. What is the status of the State Water Supply Master Plan?

I managed to crash the event and below report the following discussion that ensued. This can give you a sense of the business community’s concerns.

Overall, I was disappointed but not surprised by the lack of vision or leadership on the environment.

I was appalled by how willing both DEP Commissioner Mauriello and legislators were to accommodate business demands.

I was shocked by Senator Smith’s remarks about stealing property, property rights, and an all out attack on new DEP Water Quality Management Planning rules. And I was embarrassed by the juvenile bashing and personal attacks on colleagues Dave Pringle and Jeff Tittel.

Following short introductory statements by the panelists, a question (Q) and answer (A) session took Place. Here is a summary.

1. Licensed Site Professionals (LSP) (this new program got the most discussion. NJBIA distributed a fact sheet to members. Here are EPA audits and our take on SRP and LSP)

What is the status? How many license applications?

A: (Mauriello) Irene Kropp has done a wonderful job in developing an entire new program. Nothing being done in the dark behind closed doors – open and transparent process, listening to stakeholders and advisory groups. Looking forward to looking the skeptics in the eye when the program is working  About 90 applications submitted, 35 approved. Seeking guidance from the Governor’s Office on LSP Board appointments. Program takes effect Nov. 3, 2009 D Day. Good news for the environment and really good news for the regulated community.

2. What is the status of proposed rules to delist Cooper’s Hawk as a threatened species? A $40 million project is being held up. Additional projects worth hundreds of millions of dollars are being held up. Economy can’t afford that. DEP drafted rules years ago, but has not proposed. When will DEP propose these rules?

A: (Maurielo) I am familiar with your project. Thanks for the fax describing it. DEP draft rules undergoing legal review. Very close to proposal “expect proposal in next few months. In the meantime, what can the DEP do to expedite your project? Perhaps you should apply for other permits – we will issue.

3. What is status of Science Advisory Board (SAB)? (see this for background on SAB)

A: (Mauriello) The SAB was modeled on EPA SAB. Don’t know if you read blogs [Note: clearly a reference to this post], but our critics are wrong “ lots of scientific talent in NJ. I’ve made it clear that SAB will not review standards or drive policy.  160 scientists nominated or self nominated. Despite what blogs say, I had only my first meeting last week with DEP scientists to discuss SAB. Haven’t reviewed names of candidates. (Despite what the blogs say). Looking for diversity and balance.”

4. What is the status of the Report mandated by the Global Warming Response Act and development of regulations to implement the Global Warming Response Act (GWRA)?

A: (Mauriello) GWRA a bold law, but real work needs to be done. DEP implementing RGGI (20% portion of $60 million revenue) on forest and marsh sequestration. 300 application for funding under review. Staff are reviewing comments on the draft report. We just proposed new CAFRA rules to promote solar and wind. Final Report upcoming. No real regulatory focus, more incentives.

5. What is the status of the Water Supply Master Plan? Why doesn’t NJ go back to US Supreme Court on DRBC allocations, which are unfair to NJ?

A: (misunderstood the question, spent 5 minutes outlining USACOE flood data and reservoir storage; flood hazard regulations; and stream upgrades).

Q: Followup: You misunderstood my question “ I am concerned about WSMP science and  models that determine safe yields and 1983 DRBC agreement. Current plan uses 25 year old data.

(there was a later follow-up question on WSMP)

A: (Mauriello) Draft final WSM plan is close. Delayed because DEP waited for new USGS data/model. Plan will identify new population projection growth based surplus/deficit areas, as well as what we need to do to transfer water to deficit areas. “We don’t tell people how to manage water“ purveyors have lots of expertise. We try to provide tools for management.

6. Would you support an extension of the Permit Extension Act, which expires in June 2010? Is such a bill likely to move in lame duck?

A: Smith: Yes

McKeon: Yes

Bateman: Yes

7. The Clean Water Act’s Total Maximum Daily Load (TMDL) program lacks a sound scientific basis. DEP just revised the basis for the phosphorus standard from a numeric to a narrative basis. Why? How will this change impact TMDL’s already finished and under development?

A: (Mauriello – did not answer the questions). I agree that TMDL is inefficient and ineffective basis for setting permit discharge limits.  I am looking at the entire TMDL program. DEP spends a lot of time and money developing TMDLs, and then litigating them in court. DEP must then face administrative appeals of permits when the TMDLs are used and incorporated in discharge permits.  The TMDL program will be the first issue I charge the SAB to look into. I am sure that my science staff will hear about that in less than an hour (laughter).

8. What can DEP and legislators do to stop job loss and loss of production (e.g. recent Sunoco refinery closure)?

A: Smith – We shouldn’t be the problem

A: McKeon – that’s a complex question involving taxes and labor and the needs of a densely populated state of 9 million people. It will always be more expensive to live in NJ. We can work to expedite permits, but will not look the other way and compromise environmental protections which is short sighted and will poison the future of the state and make it an economic wasteland.

9. Solar panels are considered impervious surface which discourages installation. Why? We need guidance from DEP of new definition of impervious cover to stimulate solar on the ground.

A: (Mauriello) DEP doesn’t have statewide jurisdiction over IC – in CAFRA and Highlands yes. MLUL has inconsistent definitions too. Governor Corzine has directed me to make accommodations for renewable energy.

A: (Smith)  – you need a bill to define IC. I will be introducing a bill soon to do that.

10. How can DEP promote sequestration of carbon in forests on private lands?

A: (Smith) – support S713 Forest stewardship plans as opposed to Forest Management Plans

11. Politics

a) Endorsements – What’s up with environmental groups endorsements? None backed Governor. Can we expect more surprises from them? (lot’s of laughter and jokes about Jeff Tittel and Dave Pringle)

A: Smith: “Anyone here in love with Jeff Tittel, please stand up”

Live by the sword, be prepared to die by the sword

A: Bateman: Give Dave Pringle credit.

A: McKeon: DEP has been reasonable on regulations, which is why the environmental groups don’t support the governor. If Corzine wins, the groups that didn’t endorse will lose influence and credibility. This will harm the environment because environmental groups will be perceived as paper tigers unable to influence voters and the public. This makes it harder to pass pro-environmental legislation or DEP initiatives. A set back for the environment.

A; Smith – Disagree with Bateman. Tittel/Pringle opposed LSP.  Gov. did the right thing and took them on. There are 200+ environmental groups that disagree with Tittle/Pringle but can’t speak out due to 501C3 status. There are many other groups that support the Gov. but won’t speak out because they are afraid of Tittel/Pringle. 

b) Anti-business climate – what can be done? DEP has worked extremely well with EDA and Gerold Zarro in Gov. Office. What more can be done?

c) Water Quality Management Planning rules – ant-development, takings and property rights

Smith went off. Big problem with WQMP rules. DEP planning to designate areas as non-sewer service areas based on old flawed maps and without knowledge or consent of land owners. This will shut down development. Big problem for land owners, builders, developers. In designated NSSA, are dead meat. My biggest beef is that this steals property rights “ we did it in the Highlands. This is unfair to property owners. All these land owners whose land is about to be designated NSSA should be aware. Oh, we’re careful not to trigger a legal taking, but we come close and steal property rights. DEP maps and aerial photos are flawed. Site in my district whre a COAH project is designated NSSA. I support Sarlo bill to place 2 year moratorium on implementation of new WQMP rules. Provide notice to property owners and opportunity to challenge DEP designations. Sorry if this sounds anti-environmental but I’ve already stolen 500,000 acres in this state (Highlands?). Some NSSA lands broadly designated by mere possibility of T&E habitat. We’ve taken 60% of the land area of the state in Planning Areas 3,4, and 5. You can’t build anything new there. If you own property call you county planning board and find out about NSSA designation.

Mauriello pushed back effectively, acknowledged working to relax deadlines and be flexible, but new rules required because plans are so old and flawed, and don’t consider water supply, wetlands, and other environmental constraints that would prohibit the issuance of land use permits. Working on more notice to landowners. Working on maps – bog turtle habitat suitability improper in some places. TWA permits grandfathered. My goal is to pre-empt the need for the Sarlo legislative moratorium bill – DEP is making concessions. (we wrote about the Sarlo bill here)

d) Lame Duck Priorities – Smith:

Forest stewardship

ATV registration

Greenwood Lake Commission fee authorization

Restrictions on nitrogen fertilizers – Barnegat Bay eutrophication

Salwater fishing registration

Dam restoration

Next Session priorities – Smith

Focus on Barnegat Bay ecosystem (we wrote about Barnegat Bay here)

Energy bills – renewables

Last week, we got a tip, and managed to catch chemical industry lobbyists red handed as they signed in to meet with DEP Commissioner Mauriello.

That really pissed Mauriello off, so we just got another tip that to prevent future embarrassing leaks, DEP just stopped the longstanding practice of distributing the Commissioner’s daily schedule to his Management Team and senior staff.

Well, we suggest Mauriello should stop hunkering down like the former Soviet Politburo and instead EXPAND transparency at DEP. To do so, we petitioned DEP seeking PUBLIC distribution of the DEP Commissioner and senior managers meeting schedules.

Mauriello need look no further for guidance than this new policy by President Obama:

Government should be transparent.  Transparency promotes accountability and provides information for citizens about what their Government is doing.  Information maintained by the Federal Government is a national asset. My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use. Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public. Executive departments and agencies should also solicit public feedback to identify information of greatest use to the public.(link to Presidential Memoranda)

(but we trust that Mauriello will be guided by the spirit, letter, and intent of the Obama policy, not his administration’s actual performance in honoring those commitments).    (and this u-turn too)

We actually got some encouraging news in response to our petition last week – DEP asked for 30 days more time before making a final decision. My sense is that they are just buying time and trying to push this embarrassing issue past election day.  – see the details below. Hit the links for the documents.

For Immediate Release:  Thursday, October 8, 2009

Contact:  Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337

 NEW JERSEY ENVIRONMENTAL AGENCY WRESTLES WITH TRANSPARENCY

  Proposed PEER Openness Rules Being Studied for “Feasibility and Practicality”

Trenton – The New Jersey Department of Environmental Protection is now considering adoption of a package of transparency rules proposed this July by Public Employees for Environmental Responsibility (PEER).  The agency says that it is taking additional time to “explore the feasibility and practicality” of maintaining open calendars, improving public notice and ending gag orders on its staff, according to a September 25, 2009 Notice of Action by the agency.

Under the state Administrative Procedures Act, DEP had 60 days to grant the PEER petition, deny it, or seek an additional 30-day extension to render a decision on the petition.  The new deadline for a DEP decision is October 27th with that decision slated for publication in the New Jersey Register on November 2nd, one day before the gubernatorial election. PEER first proposed these rules in 2007 but then-DEP Commissioner Lisa Jackson rejected the rules on the very day they were published.

“At least we are making progress – DEP has not rejected our rules out of hand on the very first day.  This year they will be alive for 90 days before the ultimate action,” stated New Jersey PEER Director Bill Wolfe, a former DEP analyst.  “These are simple, common-sense steps to shed light on the back channels that lobbyists, lawyers and consultants use to penetrate DEP.”

The PEER rules would require public disclosure of meetings and communications between DEP policy makers and representatives for regulated industries and developers. DEP routinely conducts these meetings to negotiate permits, enforcement actions and health standards behind closed doors.  The PEER plan would also require that calendars of top officials be posted on the web.  Current Acting DEP Commissioner Mark Mauriello has put his calendar off limits even to agency staff after PEER revealed that he was meeting with industry lobbyists last week about picks to the new Science Advisory Board.

Meanwhile, EPA Administrator Lisa Jackson has started posting her calendars on the agency’s web site, although she had claimed executive privilege to shield her calendar from public view when she was at DEP. Jackson’s posted calendars do not give the subject of meetings, however.

In addition, PEER proposes that DEP ban gag orders so that scientists, inspectors and other professional staff can speak honestly to the public and the media without fear of retaliation.  A recent gag rule at DEP, for example, allows political staff to vet all scientific and technical reports prior to release.

“Kermit the Frog said ‘It’s not easy being green’ but in New Jersey it is harder being transparent,” Wolfe added.  “DEP employees work at the agency but they work for the public and should be allowed to communicate with their true employers.”

New Jersey’s leading environmental groups have also backed the PEER rulemaking petition, urging Gov. Corzine to support it and additional DEP ethics reforms in an August 13, 2009 letter:

“Transparency and public disclosure can serve as checks on corrupt practices. A petition for rulemaking to force DEP to disclose all meetings and contact with third parties would go a long way towards restoring public confidence in DEP.”

Gov. Corzine has yet to respond to the letter.

###

Read the DEP Notice of (In)Action

 See the legal notice of publication for the PEER proposal

 View the CleanGreen Coalition letter to Gov. Corzine urging openness reforms

Look at Lisa Jackson’s on-line calendar at EPA

 Examine the roots of recent corruption scandals at DEP

 Review political manipulation of DEP public health science

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

I just read the NJEF press release endorsing Republican Chris Christie for Governor.

Needless to say, I was surprised.

Given Christie’s prior controversial proposals to slash DEP budgets even further and remove natural resource programs from DEP, I had assumed that Christie was not realistically seeking environmental group endorsements.

So to get a little understanding, I just went to the Christie website, watched the 1 1/2 minute Christie video, and read his “entire plan“

At a fundamental level, Christie feels that DEP has become  “too intertwined” with business life in NJ (his words) and needs to shrink and disengage on the regulatory front. This language should set off all sorts of alarm bells for those who follow environmental affairs.“ It represents a sort of kinder and gentler (yet actually more conservative) “Open for Business” mantra.

The Christie environmental platform is a disaster.

Here is my point by point rebuttal, based on 25 years of experience working on environmental policy in NJ; 13 years as a policy analyst at DEP and 12 for ENGO’s. (language from Christie platform is in Boldface)

1. Restore DEP to its core mission

This is traditional conservative republican code for an anti-government and anti-regulatory pro-business agenda.

Years of experience in NJ has shown that in order to protect air, water, land, and natural resources, we need strong science based regulations and a robust DEP staff to monitor and enforce those regulations. Voluntary compliance is a proven failure – it does not work.

In addition to regulatory rollbacks, Christie seeks to break natural resource programs out of DEP. This move would jeopardize federal matching grant funds and make funding those NR programs with state appropriations even harder in the current tough fiscal climate. Removing NR programs from DEP also would decouple existing effective linkages between NR and land use and water resource regulatory programs – the C1 stream classification program is a great example: The Natural Resources side of the DEP, staff at Fish and Wildlife, does the stream sampling. DEP regulatory staff in Surface Water Quality Standards program then revise the stream classification regulations, which then are implemented in the land use and water resource permit programs. Christie seems to have no idea how these programs are designed.

2. expedite hazardous site cleanup

This approach would more heavily rely on and make the failed Corzine Licensed Site Professional privatization scheme even WORSE. Christie shows no knowledge whatsoever about the site remediation program and why it has failed. EPA IG Reports found that DEP does not use and enforce existing law, instead relies on the word of private contractors and industry voluntary compliance. The cleanup program is economically driven. Costly cleanup sites languish when little redevelopment potential exists. There is also serious mismanagement and a lack of science based priorities. Christie is clueless.

3. Establish Rule-Making Scientific Advisory Committees

This would go even further than the current Corzine flawed Science Advisory Board, in terms of providing for more private sector control of science AND regulations. At least the Corzine SAB is limited in scope (to science) and does not allow the SAB to deliberate on policy. The business community wants the SAB to get control over policy too. Christie explicitly would expand the SAB role and allow even more private sector capture of science and DEP regulatory programs.  A very bad idea.

4. Strengthen Rule Impact Statements 

This has been a business community goal and tactic since the Reagan Administration.

Right out of the gate, Reagan issued an Executive Order 12,291 on regulatory impact analysis that crippled EPA and other agencies ability to promulgate rules. It allowed OMB to blocked new regulations based on cost considerations. Christie Whitman issued EO 27 and tried a similar move, but thankfully it failed. These impact statements allow economic cost benefit analysis to trump science based public health and environmental protections. Christie wants to bring these failed conservative national regulatory deform policies to NJ  -I SAY NO WAY!

5. REVIEW ALL DEP RULES AND REGULATIONS

Again, this is the business community’s game plan to dismantle regulatory protections. The lack of any policy objectives and programmatic details gives it away.

There are several positive regulatory reforms that DEP needs to pursue to strengthen protections and improve performance and productivity, such as: 1) ecosystem based management; 2) site wide permit reviews that integrate multiple “silo” permits; 3) consideration of secondary and cumulative impacts in permit decisions; 4) conducting environmental justice reviews; 5) proposing and implementing long delayed rules to protect the habitat of threatened and endangered species; 6) shift from site specific case by case decisions to regional management; 7) developing a new regional approach and plan for the coastal zone; 8 ) developing a regional plan for Delaware Bayshore (modeled on Highlands); 9) reforming the watershed management program by putting teeth in planning; 10) developing a program for the new Coastal and Ocean Protection Council, 11) implementing federal Clean Air Act MACT requirements, particularly for hazardous air pollutants (HAP’s) and additional controls on volatile organics and fine particulates; 12) developing and proposing a regulatory scheme to implement and meet the emission reduction goals of the Global Warming Response Act; 13) streaming the siting and permitting for renewable energy sources; et al to name only a few priorities.

The fact that none are offered in the Christie plan reveals that this is just a DEP dismantling exercise.

6. Eliminate Agency Funding from Fees and Fines 

More than 50% of DEP’s budget revenue comes from fees and fines – (75% when federal funds are included) – eliminating this revenue without identifying an alternative funding source is a formula to defund the agency.  I am reminded of the infamous Grover Norquist quote:”œmake DEP so small so he can drown the beast in the bathtub”.

7. PROTECTING NEW JERSEY’S OPEN SPACE

Establish Long-Term Funding Source of Open Space – this is good but hardly offsets the above 1-6 disasters. Plus, no stable funding source is identified. Does Christie support Senator Smith’s water tax bill?  (read the bill, S1454, here)

8. STRONGLY ENFORCE CLEAN WATER AND OCEAN POLLUTION LAWS

Christie offers no details, and he appears clueless about state law. His federal enforcement experience is of little value. NJ already has a mandatory Clean Water Enforcement Act which is stronger than the federal Clean Water Act. Worse, he undermines his own rhetoric about strong enforcement by talk of  a “public private partnership” on pharmaceuticals. This is code for voluntary compliance and privatization.

The new USGS National Water Quality Assessment Program data are just demonstrating the need for additional regulation of a wide variety of currently unregulated contaminants, including endocrine disruptors and pharmaceuticals widely found in rivers and drinking water – so it looks like Christie seeks to derail that effort via stealth.

9. Restore Shore Protection Cuts 

This is code for more beach replenishment money. DEP Coastal Zone Management Reports have concluded that the beach replenishment program gives a false sense of security for flooding, storm surge, and sea level rise risks. This promotes more overdevelopment of coastal high hazard areas.