WolfeNotes.com

We have an economic emergency in the housing sector – homeowners desperately need a moratorium on foreclosure; middle class people need affordable housing and access to credit; renters need relief; and the poor and homeless need basic public housing.

But, instead of protecting homeowners and people, Senator Sarlo again shills for the economic interests of the banks and builders (see also where he attacked DEP clean water rules).

He is sponsoring S3137 which would extend the expiration date of certain permits pursuant to controversial “Permit Extension Act of 2008.” Passage of that Act was strongly opposed by the environmental community and local governments.

We described the initiative as a “cruel hoax” and urged Governor Corzine to veto the bill.

The bill would exempt an unknown number of development projects from new DEP clean water rules and necessary restrictions to assure that there is an adequate supply of drinking water to support the project. By extending old approvals, the bill also would exempt new development from necessary standards and mitigation/offset requirements to meet energy efficiency and green house gas reduction goals, water conservation, and other innovative “sustainable development“, “green design” and “low impact development” approaches that are in high demand by housing consumers.

The bill would lock the development community into antiquated designs that don’t meet current market or environmental conditions. This would be like locking GM into building SUV’s just as the market is transitioning to electric cars.

Changes in local zoning and Master Plans would be over-ridden as well.

The lame duck bill is an attack on the environment and local land use planning. It is up today in the Senate Economic Growth Committee at 1 pm

STATEMENTUnder this bill, the “extension period,” as defined
in the “Permit Extension Act of 2008,” P.L.2008, c.78
(C.40:55D-136.1 et seq.), would be extended until December
31, 2012, rather than July 1, 2010 as provided in current
law.

Thus, under this bill, government approvals, as defined
and extended by the “Permit Extension Act of 2008,”
would continue to be valid until December 31, 2012.  In
accordance with the tolling provision provided in the
“Permit Extension Act of 2008,” no approval would be
extended beyond six months after the conclusion of the
extension period, or until June 30, 2013 under this bill.

Enck’s high profile visit provides an early pushback to Christie’s campaign statements regarding EPA oversight.

[Update #2 - click for NJN News coverage - starts at minute 17. RA Enck is asked key questions about NJ LSP program & Christie moratorium

Courier/Home News Tribune: South Plainfield gets $30 million to clean up former industrial site

[Update #1 below] – In her first week on the job, new Obama EPA Region II Administrator Judith Enck traveled to New Jersey. Enck visited the Cornell Dubilier Superfund site in South Plainfield, NJ where $30 million in American Recovery and Reinvestment Act funds were allocated to cleanup the site and benefit the community. According to EPA:

Cornell Dubilier Electronics, Inc. operated at the site from 1936 to 1962, manufacturing electronic parts and components, including capacitors.  The company dumped material contaminated with polychlorinated biphenyls (PCBs) and other hazardous substances directly onto site soils during its operations. EPA has detected PCBs in the, ground water, soil and in building interiors at the industrial park and at nearby residential, commercial and municipal properties.  EPA also has detected PCBs in the surface water and sediments of the Bound Brook, which crosses the site’s southeast corner.  A pre-1991 investigation conducted by the New Jersey Department of Environmental Protection in the vicinity of the former CDE facility revealed significant ground water contamination consisting mainly of the volatile organic compounds, trichloroethylene and tetrachloroethylene.  Due to widespread contamination, residential wells in the area were closed and residents hooked up to a city water supply. In 1998, EPA began cleaning the interior of homes near the site that contained PCBs in household dust and potentially responsible parties at the site removed PCB-contaminated soil from homes.

Enck spoke about progress being made in cleaning up the site. Chemical pollutants have migrated off site into nearby homes and Bound Brook, a tributary to the Raritan River. As a result, fish are highly contaminated with unsafe levels of PCBs and should not be eaten. 

The event, while designed to highlight the Obama Administration’s environmental and economic revitalization efforts, also sent a strong message to the incoming Administration of Governor elect Chris Christie, who has already challenged EPA oversight and threatened a moratorium on regulations.

That message is: EPA will not only be investing significant funds in environmental cleanup in NJ, but will be overseeing federal environmental laws and holding the State accountable to implement federally delegated and/or funded programs.

EPA provides millions of dollars to NJ DEP to administer federally delegated clean air, clean water, safe drinking water, toxic site cleanup, and hazardous waste management programs. That funding, in addition to federal law mandates, provides EPA Region II with tremendous leverage over NJ DEP.

In August 2009, EPA issued a scathingly critical audit of NJ DEP’s performance (See: EPA AUDIT RIPS NEW JERSEY DEP PERFORMANCE — Corrective Actions Never Implemented for Toxic, Wetlands and Other Programs. In June 2008,  the EPA Inspector General issued a highly critical report of NJ DEP that prompted EPA Region II to take over cases that had been mismanged by NJDEP. (See:  EPA REPORT BLASTS NEW JERSEY TOXIC CLEAN-UPS — State Failures to Enforce Law Lead to Worst Delays in the Country

NJ recently privatized its state toxic site cleanup program, so Enck’s early focus on the Superfund program is a clear indication that EPA will be looking closely at how NJ implements the privatization scheme.

Enck’s high profile visit provides an early pushback to Christie’s campaign statements regarding EPA oversight. In October, Christie laid down the gauntlet:

“I’ve got a feeling that you will see, come January 2010, a lot of battles between the Christie administration DEP and the Obama administration EPA.” (watch YouTube)

Just days after his election, Christie promised to impose a moratorium on regulations, to make it “easier for business”, an act which is certain to raise issues regarding compliance with federal EPA requirements. Recently, EPA used federal power to block implementation of Governor McGreevey’s so called “Fast Track” environmental permit law and to scale back the scope of Corzine’s “Permit Extension Act”.

EPA Region II oversees the states of NY and NJ and the territory of Puerto Rico. Enck’s is the first EPA Region II Administrator in recent memory that is not from NJ, so she is not beholden to any NJ players which gives her a stronger degree of political independence. Enck was a member of former NY Governor Elliot Spitzer’s team and was with Spitzer when he served two terms as NY Attorney General. Enck helped make environmental enforcement a priority for Spitzer and comes highly praised by both NY and NJ environmental communities.

Enck’s boss, EPA Administrator Lisa Jackson was previously NJDEP Commissioner and Chief of Staff to Governor John Corzine. Jackson is  recused and can not participate in EPA decisions in NJ. This provides Enck more autonomy and control in NJ within the EPA chain of command, yet it also requires that she avoid any appearance of favoritism in NJ.

The site visit was coordinated with remarks by South Plainfield Mayor Charles Butrico and Senator Frank Lautenberg’s Office. Importantly, there was a significant presence of members of State and local environmental groups and media. So, overall, this was a very well planned, well executed, and successful event for the new EPA RA.

Enck will face challenges in holding NJ DEP’s feet to the fire. It is clear that she is up to that task, and has made oversight of NJ a priority.

We have written about and will be closely following these development. (some fishy history here)

[Update: very disappointed to read this quote from Enck - recall that even Lisa Jackson- in a reply to a question from Chairwoman Boxer - explicitly repudiated privatization of toxic site cleanup during her EPA confirmation hearing. Let's hope she made it before being adequately briefed:

Enck was non-committal about New Jersey's decision to license private consultants to perform investigations and remediations for clean-up projects, saying she has not seen the details. But she said the economy could force some practical concessions.

"We may have to do some things differently than in the past because of the budget crisis that's facing our states," she said.

Here is my briefing note to Enck in response:

Hi  - I was disturbed by a quote reported by Newsroom NJ story regarding EPA oversight of NJ LSP and other programs in light of the current economic crisis:
http://www.newjerseynewsroom.com/science-updates/federal-stimulus-funds-could-hasten-cleanup-at-south-plainfield-superfund-site#yvComment

So I thought I'd take this opportunity to give you a little background on this set of issues:

1. During January 2009 US Senate Confirmation hearings for US EPA Administrator, Lisa Jackson was asked point blank whether she would bring to EPA the LSP or privatization program she supported in NJ.

Jackson repudiated privatization – here’s an excerpt of Jackson's testimony regarding NJ’s privatized “Licensed Site Professional” (LSP) toxic site program:

Question by Committee Chair Senator Barbara Boxer:

Q: Please provide “your views on polluters self certifying that property is clean” (@ time 3:26:45)

A: Lisa Jackson:

“I don’t believe that process [i.e. private certification, as in LSP] has merit at the federal level” (@ time 3:42:43)

Chairman Boxer confirms that Jackson has rejected privatization at EPA and removes any ambiguity at time 3:43:03 by saying:

Q: Boxer: “you don’t anticipate and you do not expect to allow private consultants to certify sites as clean”

A: Lisa Jackson: “NO”

Watch CSPAN video of Jackson testimony here:
http://www.c-span.org/Watch/watch.aspx?MediaId=Congress-A-14317

2. The EPA Inspector General has analyzed the claim that lack of staff resources at DEP was cause of backlogs and lack of progress in site remediation. Here is relevant EPA IG finding:.

“Claims about New Jersey’s overwhelming workload were brought to our attention during the evaluation. At that time, we requested documentation from NJDEP to support this workload challenge. We specified that we would need evidence that spanned the 20 year period since these sites were listed on the NPL. NJDEP did not provide this information.”(@ page 11)

Read the EPA IG Report here:
Improved Controls Would Reduce Superfund Backlogs
http://www.epa.gov/oig/reports/2008/20080602-08-P-0169.pdf

We are very concerned that some are using the economic crisis to justify environmental rollbacks. I urge you not to legitimize or be influenced by this political manipulation.

Bill Wolfe

“The same people who told us to ignore Safe Drinking Water Act violations are still running the divisions,” said one mid-level E.P.A. official. “There’s no accountability, and so nothing’s going to change.” New York Times December 7, 2009

[Update below]

Charles Duhigg of The New York Times wrote another killer clean water story today: Millions in U.S. Drink Dirty Water, Records Show

Like his other Toxic Waters series on EPA failures to enforce the Clean Water Act, this story cuts through the sound bites and press release spin to document that millions of Americans drink unsafe water every day. Scrutinizing EPA’s lack of enforcement of the Safe Drinking Water Act, Duhigg found:

More than 20 percent of the nation’s water treatment systems have violated key provisions of the Safe Drinking Water Act over the last five years, according to a New York Times analysis of federal data.

That law requires communities to deliver safe tap water to local residents. But since 2004, the water provided to more than 49 million people has contained illegal concentrations of chemicals like arsenic or radioactive substances like uranium, as well as dangerous bacteria often found in sewage.

Regulators were informed of each of those violations as they occurred. But regulatory records show that fewer than 6 percent of the water systems that broke the law were ever fined or punished by state or federal officials, including those at the Environmental Protection Agency, which has ultimate responsibility for enforcing standards. …

“I proposed drinking water cases, but they got shut down so fast that I’ve pretty much stopped even looking at the violations,” said one longtime official. “The top people want big headlines and million-dollar settlements. That’s not drinking water cases”

There’s no secret to this kind of excellent journalism – all it takes is to review EPA records and talk with the professionals who actually implement the environmental programs. Unfortunately,  most reporters never get past the press release, the press office, or the Lisa Jackson political spin.

In fact, today’s NY Times story sounds like an echo of what Lisa Jackson presided over here in New Jersey – as we documented in stories like Drink At Your Own Risk

• More than 12% of over 51,000 residential wells sampled failed to meet drinking water standards;
• The most common standard violations were for “gross alpha particle activity (2,209 wells), arsenic (1,445 wells), nitrates (1,399 wells), fecal coliform or E. coli (1,136 wells), volatile organic compounds (VOCs) (702 wells), and mercury (215 wells)”; and
• These figures do not count extensive contamination from lead, found in more than 5,200 wells, because the state Department of Environmental Protection (DEP) considered the “results to be questionable” in part due to “unrealistically high concentrations of lead…”

We also documented a pattern of ignoring scientists warnings and years of delays in adoption of protective drinking water standards for the toxic chemical perchlorate, the chemical found in rocket fuel – - see “Playing Politics with Your Drinking Water”. An MCL for perchlorate was proposed in March 2009, after Jackson had left DEP. It has yet to be adopted and is threatened by a proposed regulatory moratorium by incoming Governor Christie:

For more than 3 years, Jackson ignored those scientific recommendations and failed to act to protect drinking water from this toxic chemical.

As a result, thousands of people in NJ unknowingly may be drinking unsafe levels of cancer causing chemicals. Pregnant women and infants are considered to be sensitive subpopulations for perchlorate’s effects, as hypothyroidism can have serious consequences on neurodevelopment. Animal studies suggest that perchlorate causes tumors. The full extent of human exposure and health and environmental risks are not well known.

Amazingly, for more than 3 years, Jackson was given a pass on the issue by NJ environmental groups and media. This could not be due to ignorance, because a lead NJ environmentalist chairs the NJ Drinking Water Quality Institute’s Health Effects Subcommittee that wrote portions of the October 2005 Report to DEP.

The Times quotes EPA middle managers who raise management and accountability flaws and a hunger for headlines that sound very similar to those of Jackson’s management record at DEP as well. We reported:

EPA AUDIT RIPS NEW JERSEY DEP PERFORMANCE — Corrective Actions Never Implemented for Toxic, Wetlands and Other Programs

Washington, DC — A new audit by the U.S. Environmental Protection Agency faults the quality and consistency of New Jersey programs for cleaning up toxic wastes, preserving wetlands and other key functions, according to Public Employees for Environmental Responsibility (PEER). Many of the defects were first identified in a 2006 audit but Lisa Jackson, then head of the New Jersey agency and now EPA Administrator, neglected to put in place most of the corrective steps she had pledged to implement.

The state program for cleaning up toxic wastes operates on an honor system and does not check industry claims: “None of the Site Remediation Program’s bureaus interviewed do any project assessment and/or process improvement beyond data validation, (i.e. no field audits, no split samples, no internal assessments, etc). The EPA assessment team was told that Responsible Party contractors and/or NJDEP contractors are ‘certified professionals and taken at their word’”;

We applaud Mr. Duhigg’s outstanding reporting and can only hope that his efforts are emulated by other journalists.

Hint: The history and factual record on yesterday’s announcement of EPA plans to regulate green house gases strongly contradicts the spin – and the actual emissions increases associated with the 10 northeastern states’ RGGI cap and trade initiative are ripe for the picking.

Update – There are at least 3 more examples of Lisa Jackson’s NJ record that echo the NY Times documented EPA performance failures:

1. The NJ Water Supply Management Plan (WSMP), mandated by the Water Supply Management Act provides the framework for the data, science, policies, programs, and regulations to protect NJ drinking water. The WSMP must be updated on a 5 year cycle. The WSM Plan was last updated in 1996. Jackson took the helm at DEP in 2006 and inherited a 10 year old plan. Yet, during her tenure, she failed to update the WSM Plan, and DEP still has yet do to do. THis is despite the fact that Jackson’s own 2007 Priorities and Action Plan called for:

Complete the statewide Water Supply Master Plan and implement regulatory, education and compliance strategies to integrate its provisions into key DEP decision-making and programs as well as into local government and intergovernmental planning. (@ page 12)

2. The Highlands Regional Master Plan (RMP) is designed to manage land use in an 800,000 acre region to protect the drinking water supply of 5 million NJ residents. Under the Highlands Water Protection and Planning Act, the RMP is locally developed by a Council (legally in but not of DEP), but the RMP land use plan is required to conform to the DEP Highlands Rules to protect water resources. The DEP retains sole control over statewide science based water resource regulatory programs and the Governor retains a veto power over Council actions. The local Highlands Council prepared a flawed draft plan that would not adequately protect water resources or comply with DEP regulations. It was strongly opposed by environmentalists. Even Lisa Jackson publicly criticized the plan for lack of science based protective standards (listen to Jackson’s January 28, 2008 testimony). Yet despite this criticism, Jackson  ultimately politically supported the RMP and advised Governor Corzine to approve it. Worse, Jackson drafted an Executive Order that Corzine executed that stands the Highlands Act on its head by requiring that DEP regulations are consistent with the RMP. This effectively delegates control to the local, politically appointed Council over critical statewide science based DEP water resource protection regulations promulgated to implement the federal Clean Water Act.  So now local politicians dictate Clean Water Act decisions in the most critical region of the state.  Jackson also failed – for over 3 years as DEP Commissioner and then as Corzine’s Chief of Staff – to secure nominations to fill Council vacancies. As a result, those appointments are now under  control of Gov. elect Chris Christie, who has evidenced a hostility to Highlands development restrictions and DEP regulations.

3. Drinking water standards for toxic chemical PFOA. Jackson not only failed to follow the science and promulgate protective MCL for PFOA, she personally intervened and attempted to block publication of a DEP risk assessment of PFOA in a peer reviewed journal. DEP scientists’ risk assessment recommended a very low 0.04 ppb MCL, 10 times lower than the federal EPA guidance level. See: TEFLON COATS PUBLIC AGENCY ENVIRONMENTAL SCIENCE — Jackson Sought to Have New Jersey PFOA Study Pulled from Publication

DEP’s own data confirm longstanding claims made by environmental justice advocates.

 

 

[Update below]

On Wednesday December 2, 2009, something remarkable and historic happened in Trenton, NJ at the meeting of the NJ Environmental Justice Advisory Council.  

Although it surprised not a single environmental justice advocate in the room (no one even mumbled a Claude Raines “I’m shocked, just shocked, to find racism here”), it was a major concession and damning admission by the DEP bureaucracy. Look at the above chart, and then follow me.

More than 20 years ago, the groundbreaking United Church of Christ’s Commission on Racial Justice 1987 Report “Toxic Waste and Race“ launched the national environmental justice movement. That Report documented that black communities were disproportionately targeted for waste facilities.

Almost 10 years ago, US District Court judge Stephen Orlofsky validated environmental justice concerns in Camden NJ and issued an injunction to block construction of the St. Lawrence cement plant. Orlofsky found that the New Jersey Department of Environmental Protection (DEP) had violated the civil rights of the African-American and Hispanic residents, who comprise 90 percent of the residents in the census tract where the St. Lawrence cement facility is located, after DEP issued an air pollution permit to the plant.  Orlofsky found the state DEP failed to consider the cumulative impacts posed by pollution from industrial sources already located in the primarily minority community. Orlofsky wrote:

“Much of what this case is about is what the NJDEP failed to consider … It did not consider the pre-existing poor health of the residents of Waterfront South, nor did it consider the cumulative environmental burden already borne by this impoverished community. Finally, and perhaps most importantly, the NJDEP failed to consider the racial and ethnic composition of the population of Waterfront South.” ( emphasis mine  South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 145 F. Supp. 2d 505 (D.N.J. 2001). )

Now, after years of denial, followed by obfuscation, and finally progressing to supporting rhetoric (including a recent Corzine Executive Order #130), the NJ State Department of Environmental Protection (DEP) has discovered discrimination* (*I knowingly am using that term colloquially – the data only support disproportionate impact, which does not legally prove the intent required for discrimination for civil rights law enforcement).

I am posting this data now, before DEP can run away from it or ignore it. Suggest you download it now. See: DEP Powerpoint Presentation For a brief discussion of this data and the methodology, see: DEP Technical Paper . For access to DEP’s Environmental Justice program, see this link

Briefly, DEP considered 9 indicators of environmental and/or public health impact: 1. cancer rates; 2. diesel emissions; 3. ambient benzene levels (a carcinogen); 4. traffic (all); 5. traffic (trucks); 6. density of DEP regulated industrial facilities; 7. density of toxic waste sites; 8. density of dry cleaners (toxic air emissions) and 9. density of junkyards.

For every single one of those indicators, the adverse impacts increased directly as the percentage of minority and poor residents increased.

DEP data conclusively demonstrates that poor and minority communities bear disproportionate impacts.

The strength of the correlation between race and income and adverse environmental & health impact demands that DEP take action to remedy this injustice. DEP must enforce existing environmental regulations to mitigate these impacts and develop tough new standards to prevent and better protect already over-burdened EJ communities.

But Jeanne Herb, Director of DEP’s Office of Science and Policy, repeatedly refused to even discuss what DEP would do with these findings that they can no longer deny. Herb warned the Advisory Council that any discussion of implementation issues were beyond the scope of the meeting and off the table. Herb said that DEP was unwilling to make any commitment to do anything to implement these findings because they were “management” issues and DEP “was in transition”. So, she basically dumped this issue in the lap of the new Christie Administration.

At the start of the meeting, the NJ Business and Industry Association and  Chamber of Commerce lobbyists looked like scared white guys. My guess is that they feared that the outgoing Corzine administration would live up to the spirit of his own Executive Order 130 and be loyal to a democratic base urban constituency and propose stringent new environmental justice regulations and/or announce an urban enforcement initiative. But after they heard Herb concede, I could sense their apprehension leave like the air coming out of a balloon. Shortly thereafter, they departed the meeting and arrogantly didn’t remain for the DEP staff’s technical presentation of the smoking gun data.

What will Christie do? We will keep you posted.

All eyes are now on Dave Pringle of the NJ Environmental Federation, the token environmentalist on the Christie Environmental Transition Team.

But, pictures don’t lie – Dave clearly seemed a lot closer to the NJBIA and Chamber lobbyists than the environmental justice and urban advocates.

 

 

[Update: I thought it worthwhile to excerpt some of Judge Orlofsky's decision to show how lame the DEP has been and remains with respect to a total failure to  implement any of their rhetoric (and why is it that a federal judge use harsher language to call out DEP than so called NJ EJ activists?):

Finally, the NJDEP's insistence that its obligation to Plaintiffs under Title VI does not go beyond ensuring compliance with the NAAQS is completely undermined by the NJDEP's own recognition, in numerous fora, that it has precisely such an obligation under Title VI. On October 22, 1998, NJDEP Commissioner Shinn issued the first of several Administrative Orders acknowledging the NJDEP's obligation under Title VI. See Administrative Order No. 1998-15 at www.state.nj.us/dep/equity/ao98-15.htm (visited March 27, 2001). In this Administrative Order, Commissioner Shinn established the NJDEP's “Advisory Council on Environmental Equity” (“Advisory Council”). Id. The NJDEP defined “environmental equity” as “the fair and equitable treatment in environmental decision-making of the citizens of all New Jersey communities regardless of race, color, income, or national origin. Fair and equitable treatment means that no population should bear disproportionate amounts of adverse health and environmental effects.” Environmental Equity Defined, at http:www.state.nj.us/dep/equity/define.htm (visited March 27, 2001). The purpose of the Advisory Council is to “provide advice and guidance to the Commissioner and to assist the Department as it implements an environmental equity policy and a process.” The Advisory Council was created “in recognition of state and federal concerns that minority and low-income populations may be experiencing a greater impact from pollution than other communities.” Id.

158. Furthermore in early 2000, Commissioner Shinn issued Administrative Order 2000-01, which took effect immediately. Administrative Order 2000-01, at www.state.nj.us/dep/equity/ao00-01.htm (visited March 27, 2001). In this Administrative Order, Commissioner Shinn discussed responsibilities of the Advisory Council and identified “environmental equity implementation strategies” to be implemented by the NJDEP. Pursuant to these strategies, the NJDEP committed to: (1) work with the Advisory Council and permit applicants to identify mechanisms for community notification regarding application for new, modified, or renewal permits, as early as possible in the permit review process; (2) develop guidance for permit applicants for the administration of an effective environmental equity community outreach process; (3) establish a mechanism for community outreach at the earliest possible stage of the permit application process; (4) utilize technical screening tools such as the GIS and TRI to identify potential environmental equity issues at the earliest feasible stage of the permitting process; (5) participate in discussions among permit applicants and local community stakeholders and attempt, when possible, to include in permits conditions that the permit applicants and community stakeholders have agreed upon; (6) facilitate ADR between permit applicants and stakeholders in the case of disputes; (7) work with permit applicants to facilitate accessibility, understanding, and transfer of technical and scientific data to local communities; and (8) provide ongoing environmental equity training to appropriate NJDEP managers and staff. Id. According to the NJDEP's website, this policy has been approved by the Advisory Council and is currently being “refined” in order to “ensure that the final product can be effectively incorporated into the permitting process.” The Policy and Process, www.state.nj/us/dep/equity/policy.htm (visited March 27, 2001).
It is the Court’s understanding that none of the policies or procedures referred to in the Administrative Orders have been implemented. Counsel for the NJDEP did not cite or otherwise describe or refer to any of the policies, the grant, or the administrative orders the Court has just described above. Indeed, when asked if she had any understanding of New Jersey’s Environmental Equity Program, Dr. Atay, Chief of the NJDEP’s Bureau of Air Quality Control and Hearing Officer for the SLC permit, stated that she had “none.” Atay Dep. at 62. Dr. Atay confirmed that “no matter what is in [an applicant's permit] application, [she] and [the Bureau's permitting staff] would look only for information that’s relevant to the question of would there or would there not be a violation of environmental law.” Id. at 72-73.

160. Nevertheless, it is entirely clear from the Court’s review of Commissioner Shinn’s Administrative Orders that the NJDEP is aware that its obligations under Title VI extend beyond ensuring that permitted facilities do not violate environmental laws, and in fact include considering claims, such as Plaintiffs’ in the present case, that a particular permit will result in an adverse, disparate impact in violation of Title VI.

161. From this Court’s review of Title VI, the EPA’s implementing regulations to Title VI, the EPA’s administrative Guidances, the Select Steel decision, and NJDEP Commissioner Shinn’s own administrative orders, this Court concludes that the NJDEP’s interpretation of Title VI in the present case is not only erroneous, but would eviscerate the intent of Title VI, namely, to prevent agencies which receive federal funding from having the purpose or effect of discriminating in the implementation of their program on the basis of race, color, or national origin. 42 U.S.C. §2000d-1. The NJDEP has not cited a single source of statutory, regulatory, or case law which supports its position, and this Court found none. Accordingly, I shall grant Plaintiffs’ request for a declaratory judgment that the NJDEP and Commissioner Shinn have violated Title VI of the Civil Rights Act by failing to consider the potential adverse, disparate impact of the SLC facility’s operation on individuals based on their race, color, or national origin, as part of its decision to permit SLC’s proposed facility.

Last Thursday marked the 25^th anniversary of the Bhopal India chemical disaster, where more than 4,000 people were immediately killed by accidental release of a toxic gas  (methyl isocyanate) from a Union Carbide chemical plant. Perhaps 10,000 more people died within 3 days, while thousands more were poisoned and suffered greatly.

The Bhopal disaster was not an isolated episode or unique third world threat.  A similar – or worse accident – could happen here.

In fact, in 1995, it did happen here at Knapp Chemical in Lodi NJ, where a chemical explosion killed 4 workers and forced evacuation of the community (link – scroll down to “Environmental News”).

Right here in the US, a minor methyl isocyanate leak occurred in Middleport, New York, in November 1984.  A sister Union Carbide methyl isocyanate (MIC) production plant is located in Institute, West Virginia.

In the wake of the Bhopal disaster, NJ passed the Toxic  Catastrophe Prevention Act, to strictly regulate extraordinarily hazardous chemicals. The TCPA law created a DEP regulatory program to oversee and manage chemical safety at over 100 NJ chemical plants.

But since Bhopal, we’ve learned that accidental chemical plant risks have been magnified greatly by the threat of terrorism.

Yet DEP regulation and government oversight has not increased to respond to those risks – rather, despite promises by then Senator and now Governor Jon Corzine, management of these risks has been privatized, shrouded in secrecy, and made voluntary (see “New Chemical Plant Safety Rules Rely on Voluntary Measures” and “Chemical (In)Security – Industry Profits Trump Community Safety” and the NY Times article: “Corzine’s Chemical Security Stance Draws Scrutiny a Year Into His New Job“

Here in NJ, EPA estimates an accident or terror attack could kill over 100,000 people (each) at more than 15 New Jersey chemical plants (see Report/list of facilities here)

This fact might come as a big surprise to the communities that host these plants and the neighbors who live nearby those plants, in the “kill zone”. These communities are largely kept in the dark, as the “kill zones” maps are kept secret.

So, below are photo’s of those plants and a Report/list of facilities here) providing documentation of the risks and recommendations for stronger management.

At some point, we must consider whether the inherent risks of having dangerous chemical plants (which are impossible to secure) nearby densely populated cities and residential neighborhoods are unacceptable.  I believe that they are and that these plants should be shut down and relocated to remote areas where population density and human health and safety risks are minimal.

(here’s some of the most Fatal Fifteen – don’t be fooled by the pretty landscaping and white tanks!)

 

 

 

 

Warning: this is a long and rambling complex post, so you may want to hit the delete button right now.

What it boils down to is this: Would you promise not to sue your doctor based only on his/her certification that he/she did a good job? Of course not. Would a town promise not to sue a builder based only on the builder’s engineer’s certification that the construction project was done right? Of course not.

But the state of NJ has promised not to sue toxic site cleanup contractors, developers, and polluters based only on the certification of their paid private cleanup contractor that the cleanup was done right. Absurd? Of course.

And just think – the promise (a legal “covenant”) is automatic. That’s right, no review by those pesky state lawyers and DEP bureuacrats. We wouldn’t want to slow down the land transaction and development process!

And the legal and technical terms and conditions of the legal covenant are written by – you guessed right – the lawyers and private contractors for the polluters and developers!

So, buyers beware. Given the extent of toxic pollution in NJ, the legislature has turned all land into the equivalent of that sweetheart deal for Florida (swamp)land.

Today, the Senate Environment Committee released  S3040 (Smith; D -Middlesex; Ciesla – R-Ocean) by unanimous vote.

According to the S3040 bill statement, the bill would:

This bill would provide consistency so that a covenant not to sue by operation of law for a remediation that has department oversight for which a no further action letter is issued would be available just as for a remediation that is performed by a licensed site remediation professional for which a response action outcome (RAO) is issued. This correction to the law would apply retroactively to October 16, 2009.

The hearing on the bill provided an opportunity to revisit a structural policy flaw that did not get much attention during the legislative battle over the recent privatization of the toxic site cleanup program and creation of the “Licensed Site Remediation Professional” (LSP) program.

The issue relates to what is known as a “covenant not to sue”. NJ has a history of suing polluters and has recovered hundreds of millions of dollars in damages, so any covenant not to sue issued by the State provides a valuable protection to the person that receives it. This is especially the case now, when huge state budget deficits create fiscal incentives to sue polluters and recover funds as a revenue tool to close budget gaps.

In my view, significant changes in law related to the “covenant not to sue” (CNS) issue remained under the radar during deliberations and passage of the recent LSP bill (CNS changes were codified at NJSA 58:10B-13.2). As such, today’s hearing on S3040 (a bill requested by DEP to correct a technical oversight in the recently enacted law with respect to the CNS issue) provided a legitimate opportunity to revisit the ignored aspects of the CNS issue.

I testified in opposition to S3040 today, primarily on the grounds that it invited abuse, created moral hazard, protected wrongdoers, and that allowing private consultants and their polluter/developer clients to benefit financially and legally via self certification created conflicts of interest. I mentioned that the Wall Street collapse was caused by market failures, unregulated conflicts of interest, lax regulatory oversight, false certifications by professionals, and privatization – the exact same polices promoted by the NJ LSP program.

During my testimony, I also took strong exception to the description of the bill as a minor technical correction. The Committee Chair took exception to this and affirmed the credibility of DEP. In my view, the credibility of individuals and the integrity of the process were brought into question in how this was handled. (audio of hearing here)

Specifically, in looking into the legislative history, the CNS issue was not vetted during the DEP Stakeholder process that preceded and developed DEP’s recommendations for the legislative process. The narrower and more controversial aspect of the CNS, i.e. the implications of allowing a private Licensed Site Professional (LSP) to self certify and receive the liability relief provided by a CNS was not vetted in any of the 11 White Papers that arose out of the DEP Stakeholder process. In fact, at least 2 of those 11 White papers expressly stated that DEP would continue to control and exclusively issue the CNS. There is no mention of a major new policy to allow a private LSP to self certify and receive a CNS. In fact, DEP recommended that a new insurance fund be created to manage the unfunded liability related to the finality of the CNS. The DEP did not include the CNS issue in its recommendations in the “Legislative Reform Summary“. The CNS issue is not explored on the DEP website. Governort Corzine’s Executive Order #140 does not mention CNS issue.

The legislative debate did not explore the implications of allowing a private LSP to self certify and receive a CNS from the State of NJ. The introduced version of the bill S1897, did not include a CNS for self certified LSP provision.  The written DEP Testimony of Commissioner Jackson and Assistant Commissioner Kropp [pdf 30 Kb] did not address the private LSP certification to receive a CNS.. The CNS is often implicit in discussion of the concept of “finality”, because the CNS is the final cleanup decision document issued by DEP and it alleviates liability for additional cleanup. Accordingly, in fact, DEP’s testimony regarding “finality” did raise concerns and recommend a liability insurance fund:

Finality and Protection Against Remedy Failure. One issue raised by the business community during the stakeholder sessions was their desire for the Department to provide for “finality” as part of the cleanup process. We believe the ability to do this exists through the use of the previously established, but never used, Remediation Guarantee Fund coupled with the expansion of our existing financial assurance requirements. The Remediation Guarantee Fund was set up to provide funding for the Department to use to remediate properties when a person, who was required to set up a remediation funding source, failed to conduct that remediation.

The concept of a CNS via private LSP certification – which shifts risks to the public for additional cleanup – clearly conflicts with the DEP recommendation of a privately funded insurance fund to pay for remediation when private responsible parties failed to conduct full cleanups.

The only place I found mention of the issue was buried in the fie print of the Committee statement on the February 26, 2009 Committee substitute:

The bill adds a new term – “final remediation document” – to existing law that would include both a response action outcome issued pursuant to the provisions of the bill and a no further action letter as issued under current law.  The bill would amend the liability provisions in the “Spill Compensation and Control Act” to provide the same liability protection to recipients of a response action outcome as is currently provided under the law to recipients of a no further action letter.  In addition, recipients of a response action outcome would be deemed, by operation of law, to have received a covenant not to sue.

[Update: I just found he CNS provision - in Section 31 of the SCS. ]

After today’s hearing, I spoke with Assistant Commissioner Kropp. Kropp called the CNS “a useless piece of paper” that signifies nothing. I found that an incredible statement. I reminded her of her testimony regarding the Massachusetts program, which does not put the State in the role if providing an imprimatur – or surrendering legal options – based on the private certifications of LSP’s. As such, a Massachusetts LSP’s do not obtain any liability relief as was done in the NJ law.

So, after all this background, let’s get to the bill.

According to the S3040 bill statement, the bill would:

This bill would provide consistency so that a covenant not to sue by operation of law for a remediation that has department oversight for which a no further action letter is issued would be available just as for a remediation that is performed by a licensed site remediation professional for which a response action outcome (RAO) is issued. This correction to the law would apply retroactively to October 16, 2009.

The bill was described by sponsor and Chairman Smith and the testimony of DEP Assistant Commissioner Irene Kropp as correcting an oversight in the recently enacted controversial Licensed Site Remediation professional (LSP) bill passed earlier this year. That law privatized the toxic site cleanup program by creating a new “Licensed Site Remediation Professional” (LSP) program. The LSP program fundamentally changed the way toxic site cleanups are conducted.

Previously the toxic site cleanup process was overseen by DEP or directly conducted by DEP contractors.

The new law allows private consultants (LPS’s) – who are working for the polluters or those responsible for the costs and legal liability for the cleanup – to self certify that the cleanups they conduct are safe and comply with legal requirements.

Obviously, this creates huge conflicts of interest.

First, there are huge economic incentives to cut corners on the cleanup. A private LSP owes a duty to his client, the polluter. This would include minimizing the client’s cleanup costs an legal liability. Also, a private LSP has a competitive incentive to serve his client before the public interest. Any LSP’s that tended to recommend costly cleanups would be out competed for work by those that could deliver low costs cleanups. Thus, privatization of the cleanup process creates incentives to cut costs, or a race to the bottom.

Second, there are inherent uncertainties and pervasive judgments in the science and regulatory requirements for a proper cleanup. A conservative approach which stresses protection of public health and the environment can lead to far more extensive – and costly – cleanups than if the judgments are driven by private economic considerations. The law vests the private LSP with control over these judgments regarding protection of public health and the environment. These judgments are inherently governmental functions that should never be privatized.

Under the old cleanup program,  after DEP determined that a site was completely and properly cleaned up, the DEP would issue a “No Further Action” letter (NFA).  DEP also would issue a “covenant not to sue” (CNS), a legal promise that provided finality and legal protection for land purchasers, developers, and polluters. The NFA/CNS met the gold standard – the private market could rely on the DEP issued NFA and CNS as valid legal documentation that a site was safe and that there was no risk of legal liability at the site.

Under the new LSP program, the LSP private self certification replaces DEP’s cleanup approval. Instead of an NFA, a private LSP is now allowed – with no direct DEP oversight – to certify that a cleanup is in compliance with DEP regulations. This private LSP certification is called a Remedial Action Outcome (RAO) .

Obviously, from a practical standpoint, the privately certified RAO always is a very different – and less credible – animal than a government issued NFA.

The bill released today shines a light on the fact that legally they now are the same – meaning that the state of NJ has surrendered legal rights to sue polluters based exclusively on a private certification.