WolfeNotes.com

Sometimes the words and logic of politicians are so flawed and reveal such fact free and warped thinking, that I am taken aback – you could say it “shocks the conscience“.

That sure occurred at the Wednesday January 13, 2010 press conference announcing Governor elect Christie’s nomination for DEP Commissioner, where nominee Bob Martin was shown on NJN TV News coverage making this comment:

It takes too long now to get permits through, to get inspections done at the DEP. It’s been hurting the businesses in this state. We need to fix that process. So there’s an opportunity to go and do that at this point in time. At the same time, we also need to look at the regulations in this state for the environment and make sure that they’re based on science, they’re based on facts, they’re based on good cost benefit analysis.“

Let’s look at Martin’s first claim: “too long to get permits through” is “hurting the businesses of this state”.

As evidence based critics and policy advocates, let’s start with some facts:

1) DEP approves 95-99% of permits C:\Documents and Settings\tbell\My Documents\Doria Report 71206.PDF – this destroys the NJ Business & Industry Association and Chamber of Commerce lie about lack of “predictability and certainty” at DEP;

2) many land use permits are required by law to be issued in just 90 days – this destroys business community myths about “costs of delay” and “regulatory uncertainty”;

3) not one shred of credible evidence even suggests that alleged delays in the DEP permit process are harming NJ’s economy; and

4) there is overwhelming evidence that the cause of the economic problems and recession are the Wall Street financial collapse and lack of private sector investment See:Economic Recession Crushes Construction Labor

Bob Martin was educated as an economist and is associated with what has been described as an “astroturf organization and phony think tank” The Reform Institute – so he surely must know this.

But maybe no one told him that the economy is in recession and that even if DEP could issue permits in one day, new construction would still not be happening. DEP permit process has absolutely zero to do with the bad economy.

Maybe Bob should talk to his business friends and colleagues in the Legislature, who rammed through the “Permit Extension Act”. The stated objective of that legislation is to extend already issued and expiring DEP permits. Those DEP permits are expiring because – for at least 5 years -  the private sector failed to invest and complete construction of all those projects that received DEP permits (here’s a hint Bob – in economists’ lingo, that means there is a glut in the supply of permits and no effective demand for construction!).

Let’s examine the second claim: it “takes too long to get inspections done” .

Maybe Bob is thinking of waiting too long in line at the DMV car inspection.

Because if DEP did inspections faster, logically they would do more of them. More DEP inspections would detect more violations and result in more enforcement actions and more fines and penalties.

Advocating market based “voluntary compliance” and “grace periods“, NJ businesses have historically and consistently claimed that DEP enforcement is too tough and that fines and penalties harm the economy.

So which is it Bob? Do you want quicker DEP inspections and more fines and penalties? Or do you want to get DEP off the backs of the business community?

Now for interrogation of Martin’s third claim: that we need to look at the regulations to assure that they are based on “science, facts, and good cost benefit analysis”.

Wow. I hardly know where to start with that one.

Off the top of my head – maybe Bob Martin with all his environmental policy expertise can correct me – I can’t recall any recent legal challenges to DEP regulations that found that DEP rules were not based on science, facts, or that they lack any mandated “good cost benefit analysis”.

In fact, I recall exactly the opposite.

Just a few recent examples: DEP “Category 1″ stream buffer regulations were challenged by the NJ Builders Association and upheld by the Courts. So were DEP soil cleanup and groundwater standards; the issuance of  water pollution control permits, and the DEP Highlands regulations -  See: SYLLABUS (This syllabus is not part of the opinion of the Court …

Does Bob think NJ’s Courts allow DEP to promulgate regulations that lack scientific and factual bases?

I realize that Bob has zero legal or scientific training or expertise, but this kind of talk is ridiculous and must be called out.

Let’s hope the Senate confirmation process probes these issues in detail.

BTW Mr. Martin, we would be remiss not to note that, per the non-partisan Office of Legislative Services (see OLS Analysis):

“Last year, the Governor and the DEP Commissioner established a DEP Permit Efficiency Review Task Force for the purpose of examining the department’s permitting processes and suggesting ways to improve them. In August 2008, the task force issued its report (see: DEP Permit Efficiency Review Task Force Final Report – 8/7/08) which, among other findings, recommended that permit processing and the elimination of significant backlogs could be expedited by upgrading the department’s technological capabilities, providing adequate staff and meeting with applicants more often. The task force also found that permit delays are exacerbated by ineffective data processing systems that are insufficiently upgraded, lack a central database, and encounter chronic problems with electronic filing procedures.”

Please also be advised that the DEP manager that headed up the design of the ineffective and costly DEP information management systems (known as NJEMS) is Assistant Commissioner for Site Remediation.

According to leaked documents obtained by NJ PEER, in his last official act, today outgoing NJ Department of Environmental Protection Commissioner Mark Mauriello will announce appointments to the controversial Science Advisory Board (SAB) (appointments listed below).

Former DEP Commissioner and current EPA Administrator Lisa Jackson created the SAB in response to Jackson’s controversial industry dominated Permit Efficiency Task Force.

But when Jackson unveiled the SAB, in an October 24, 2008 memo, she promised that the Board would be unbiased, not include “regulated entities“, and serve in the public interest. Jackson wrote:

“The SAB will provide a mechanism to receive unbiased technical and peer review and other advice from non-regulated entities within the state”

Mauriello himself sought to protect the public interest and exclude self interested regulated entities in his May 28, 2009 Administrative Order 2009-05, which included broad but vague conflict of interest (personal and financial) and anti-bias standards.

Longstanding attempts to politicize science at DEP have become acute (see “Dupont: Doubt (and intimidation) are their Product”).

In June 2009, we warned:

NEW JERSEY SLAPS GAG ORDER ON ENVIRONMENTAL SCIENTISTS — Embarrassing Chromium Study Prompts Management Review of Scientific Findings

Washington, DC — The New Jersey Department of Environmental Protection today imposed new restrictions on the release of technical and scientific information to the public, according to a memo posted today by Public Employees for Environmental Responsibility (PEER). The new directive allows DEP managers to hold completed scientific work in un-releasable draft form for an indefinite period.

In September 2009, we warned:

INDUSTRY MOVES TO TAKE OVER JERSEY ECO-SCIENCE BOARD — DEP Sued to Force Release of Lobbying Messages for Industry-Backed Scientists

Trenton — Industry wants to pack a new state environmental Science Advisory Board with its own scientists, according to Public Employees for Environmental Responsibility (PEER) which today filed a lawsuit to obtain public records regarding the industry lobbying effort. Department of Environmental Protection (DEP) Commissioner Mark Mauriello is reportedly making final picks for the 12-member board this week after meeting with the Chemistry Industry Council this Thursday.

(see also: “New Front in War on Science – Lawsuit Filed to Obtain Smoking Guns” and “Hostile Takeover of DEP Science – Industry Seeks to Stack Board with Cronies”

Confirming our fears, making a mockery of the conflict of interest standards of his own Administrative Order, and in direct contradiction to Jackson’s 10/24/08 promise, the SAB to be announced today includes REGULATED entities:

* 3 representatives of regulated polluter Dupont (see: TEFLON COATS PUBLIC AGENCY ENVIRONMENTAL SCIENCE — Jackson Sought to Have New Jersey PFOA Study Pulled from Publication

* 2 representatives of private regulated water companies (see: DUPONT PRESSES NEW JERSEY TO WATER DOWN PFOA RISK ASSESSMENT — Industry Consultants Get Closed Door Access to State Drinking Water Institute

* 5 of the biggest consulting firms that represent NJ’s largest regulated polluters (see: DEP CLEAN WATER CONSULTANT ALSO WORKS FOR POLLUTERS — “Ethical Swamp” Persists Despite Acting Governor’s Ethics Reform Pledge

Here is the leaked DEP document (boldface are biased and/or conflicted reps):

NJDEP Science Advisory Board

Nominee	Affiliation	Field
Andrews, Clinton, Ph.D., P.E.	Rutgers University	Urban Plan
Ferrara, Raymond, Ph.D.	Omni Environmental LLC	Env. Eng.
Gannon, John, Ph.D.	DuPont	Microbiology
Lioy, Paul, Ph.D.	EOHSI	Env science
Weis, Judith	Rutgers University	Biology
Laumbach, Robert, MPH, MD	UMDNJ	Medical doctor
Gallo, Michael, Ph.D.	UMDNJ-RWJMS	Tox/exper path
Rothman, Nancy, Ph.D.	New Environmental Horizons, Inc.	Physical Organic Chemistry
Lederman, Peter, Ph.D., P.E.	Peter Lederman & Assoc. (former NJIT)	Chem. eng & P.E.
Lippencott, Robert J., Ph.D.	TRC Environmental	Env science
Husch, Jonathan, Ph.D.	Rider University	Geology
Dyksen, John, M.S., P.E.	United Water	Env eng
Candidates Recommended for the Ecological Processes Standing Committee
Ehrenfeld, Joan	Rutgers University	Biology
Weinstein, Michael	Montclair State University	Marine Biology
Morin, Peter, Ph.D.	Rutgers University	Zoology
Kennen, Jonathan	United States Geological Survey	Fisheries
Hoke, Robert	Dupont	Biology
Qiu, Zeyuan	New Jersey Institute of Technology	Landscape, Agric. Economics
Bologna, Paul	Montclair State University	Marine Biology
Bovitz, Paul	Weston Solutions	Ecology
DeVito, Emile	Numerous – including New Jersey Conservation	Ecology
Luke, Nai-chia	Camp Dresser & McKee	Environmental Science
Powell, Eric	Haskin Shellfish Research Lab., Rutgers Univ	Fisheries
Bentivegna, Carolyn	Seton Hall University	Biology
Candidates Recommended for the Climate & Atmospheric Sciences Standing Committee
Broccoli, Anthony (H)	Rutgers University	Environmental
Robinson, David (H)	Rutgers University	Geology
Hopke, Philip (H)	Clarkson University	Chemistry
Held, Joann (H)	NESCAUM	Air Pollution Control
Cohen, Maurie (H)	New Jersey Institute of Tech	Regional Science
Robock, Alan  (H)	Rutgers University	Meteorology
Chopping, Mark (M)	Montclair State U., Earth & Envir. Sci.	Remote Sensing
McMillin, William (M)	CH2M HILL	Envl. Engineering
Croft, Paul J. (M)	Kean University	Horticulture
Pope, Gregory  (M)	Montclair State University	Geography
Spatola, Joseph (M)	Clean Air Council of New Jersey	Chem Eng. Degree
Leichenko, Robin	Rutgers University	Geography
Candidates Recommended for the Water Quality & Quantity Standing Committee
Navoy, Anthony (H)	United States Geological Survey	Geology
Uchrin, Christopher (H)	Rutgers University	Envir & Water Resource Eng
Barrett, Kirk (H)	Passaic River Institute, MSU	Engineering
Schneider, Orren (H)	American Water	Engineering
Buckley, Brian (H)	Rutgers University EOHSI	Chemistry
Cooper, Keith (H)	Rutgers University, Dept.	Biology
Vaccari, David (H)	Stevens Institute of Technology	Environmental Science
Meng, Xiaoguang (M)	Stevens Institute of Technology	Environmental Engineering
Amidon, Thomas (M)	Omni Environmental LLC,	Engineering
Cromartie, William (M)	Richard Stockton College	Biology
Kohut, Josh (M)	Rutgers, The State University	Physical Oceanography
Michalski, Andrew (M)	Michalski & Associates,	Geological Engineering
Candidates Recommended for the Public Health Standing Committee
Kipen, Howard (H)	UMDNJ	Medicine
Klotz, Judith (H)	UMNDN-SPH and Drexel	Public Health
Maddaloni, Mark (H)	USEPA	Public Health
Weisel, Clifford (H)	EOHSI-UMDNJ/RWJMS	Chemists
Zelikoff, Judith (H)	NYU Inst. Env. Med.	Other
Greenberg, Michael (H)	E.J. Bloustein School  & UMDNJ	Other
Robson, Mark (H)	Rutgers University	Public Health
Kennedy, Gerald (H)	DuPont	Biochemistry
Marcus, Steven (M)	NJ Medical School,	Medicine
Mitala, Joseph (M)	Retired Reproductive Toxicologist	Pharmacology
Johnson, Clyde (M)	Ramapo College of New Jersey	Other<

Dupont has current high profile science disputes with DEP over the health risk assessment and cleanup standards for the chemical PFOA manufactured at their Deepwater plant and vapor intrusion into homes caused by their facility in Pompton Lakes. (see: “Dupont and DEP Hammered by Angry Residents for Failure to Cleanup Toxic Nightmare Linked to Cancer Cluster”.

How can Dupont credibly serve on the Board and the Public Health Committee!

Private water companies have billions of dollars at stake in DEP science related to drinking water standards and the amount of available water they can sell and make a profit on.

The appointed consulting firms (TRI and Omni) advocate on behalf of NJ’s largest developers and water polluters, so they have a clear conflict between science and the interests of their paying clients.

So, just as we feared all along, it now seems clear that the SAB will provide a vehicle for regulated industry to inject influence and otherwise delay, weaken, or derail DEP regulatory science, particularly risk assessments that are used to set strict health standards and costly industry regulations.

PEER filed Open Public Record Request in order to shine light on behind the scenes pressure by powerful industrial polluters such as DuPont and the NJ Chemistry Council to assure industry friendly SAB appointments. We filed a lawsuit for force disclosure of these documents.

In response to that lawsuit, DEP engaged in bad faith –  they basically ran out the clock to frustrate OPRA compliance and disclosure of exactly what today’s appointments reveal.

Now, with today’s SAB appointments, we see why.

If confirmed, Martin would be the first DEP Commissioner with absolutely no academic, professional, or employment experience related to protecting the environment or public health.

Martin’s privatization and finance experience could make the Corzine “assset monetization” sale of the Turnpike seem like a picnic.

Incoming NJ Governor Chris Christie named Bob Martin as his nominee for Commissioner of the Department of Environmental Protection (DEP).

Martin is a retired corporate executive.  According to the Philadelphia Inquirer:

Martin would bring a business background to DEP. He’s a retired executive from the international firm Accenture L.L.P. and served as a policy adviser in Christie’s campaign, focusing on energy policy. Christie wants to make New Jersey a manufacturing center for solar panels and wind mills.

While promising to protect the state’s natural resources, Christie also said he would strip the DEP of regulations that hamper economic development.

Martin must be confirmed by the Senate. The confirmation process reflects constitutional principles of separation of powers between the legislative and executive branches. The confirmation hearing provides an opportunity and excellent forum for both the Senate and the nominee to explore policy issues – particularly when the Governor and Legislature are of different political parties -  thus promoting both transparency and democratic accountability.

Although the confirmation process theoretically raises a hurdle, traditionally, an incoming Governor is given wide deference in naming his Cabinet and the Senate confirmation process is primarily ceremonial. Exceptions arise in very limited cases where a nominee has legitimate questions related to qualifications, temperament, or ideology or controversial policy views outside the bounds of mainstream NJ tradition. As such, there is a presumption of confirmation and a heavy burden on the Senate.

In Bob Martin’s case, given his lack of a NJ record and corporate experience, I think there are several legitimate questions he must answer during the Senate confirmation process. Because he has no record or environmental credential, the burden of confirmation shifts from the Senate to Mr. Martin.

Here are my initial set of issues and questions on Mr. Martin’s background that Senators should probe during the confirmation process before they decide whether he is qualified to run DEP.  We will be doing more research on these issues – this is the first shot and things are clearly tentative and expressed as questions.

I) Qualifications

DEP is a public regulatory agency that makes most decisions based on science and law. All prior DEP Commissioners have had academic degrees, professional licenses, training and government or professional experience in directly relevant areas of law, science, and/or public policy.

Martin has a BA in economics and a master’s in finance. His corporate professional experience appears unrelated to the environment. From what I can tell at his point, it is unclear whether he has experience in managing a large budget or large staffed organization. He has no government experience and has not held any political office. According to my sources, Martin has had no involvement in environmental issues at the local level in his Hopewell home town or at the state level.

Martin’s lack of experience shifts the burden to Mr. Martin to demonstrate that he is qualified and capable to run the DEP effectively.

The Senate should closely probe the question of Martin’s qualifications for the job. He is clearly outside the NJ tradition in terms of prior DEP Commissioners.

II) Policy views and ideology

Martin is reportedly a strong proponent of the highly controversial technique called “cost benefit analysis” (CBA).

According to NJ Biz:

Martin said it is taking “too long to get permits through” and that regulations must be based on science, facts and “good cost-benefit analysis.”

The use of CBA is strongly opposed by most environmentalists because it has been used as a back door tool by industry to kill and/or sharply scale back protections for public health and the environment, often on false or inflated factual grounds. CBA has theoretical and practical limitations – industry has a long record of grossly exaggerating the costs of environmental regulations, while the ecological and public health benefits are extremely difficult to quantify. Thus, CBA strongly biases decisions in favor of corporate polluters and against protection of the environment and public health.

But CBA isn’t merely a technically flawed tool – it raises grave ethical concerns, including placing a dollar value on human life  (talk about “Death Panels”!).

Because it is based on the total dollar value of a person’s lifetime employment earnings, CBA discriminates against and assigns low economic value to the elderly, minority, and working class people who are low income and earn less. CBA has been rejected for those fatal flaws.

CBA is not now conducted by DEP and there are no NJ laws or regulations that authorize it.

The Senate needs to closely question Mr. Martin about his views on CBA, including:

1. please identify your academic training and professional knowledge and experience with CBA;

2. please provide examples of decisions you have made that applied CBA to practical real world problems;

3. please describe, in detail, the provisions of federal and state environmental laws that you believe authorize the use of CBA;

4. would you implement CBA at DEP? If so, exactly how.

5. Are you aware that DEP has only 1 economist on staff and that he is not trained in CBA? Given this limitation at DEP, would you hire economists or allow private industry – like Exelon and Dupont – to prepare CBA for DEP to use?

6. would you apply CBA to determine if cooling towers are the “best available technology” at Oyster Creek and Salem nuclear power plants? How would CBA apply to the legal mandate for  DEP air permits to incorporate “advances in the art” of pollution control? How would CBA apply to water pollution discharge permits that must include effluent limits that achieve water quality standards?

7. would you apply CBA in establishing drinking water, water quality, air quality, and soil cleanup standards?

8. would you apply CBA to determine pollution control requirements for industries that discharge pollutants to air and water?

9. would you apply CBA to natural resource management programs, like wetlands protection, open space, fish and wildlife, and coastal and ocean resources?

10.  How would you apply CBA to chemical safety programs, like the Toxic Catastrophe Prevent Act program?  How would you balance industry compliance costs against the deaths that would occur in the event of a chemical accident?

According to my sources, Martin has a record of outsourcing and off-shoring US jobs, as well as privatization of government services and deregulation of public water systems and other government functions. Sources say that Martin’s firm Accenture, grew out of Arthur Anderson accounting collapse associated with the Enron scandal.

11. did you have any involvement in the Enron matter? Who were your energy industry clients? Will you have conflcuits with energy firms in NJ?

12. a source provided this important background information on Martin’s firm Accenture:

A small but critical part of the work that B.C. Hydro farmed out five years ago to Accenture — under orders from the Liberal government — is being “repatriated.”

The procurement function — buying all the goods and services the giant utility needs over the course of a year — was among the routine office functions outsourced to a local Accenture offshoot in 2003.

That was a $1.4-billion, multi-year arrangement that saw Hydro shed 1,500 direct jobs and was pitched as a cost-saver and potential money maker. Despite the touted benefits, it prompted a heated political argument.

Critics, including the opposition, the unions involved and even a Liberal MLA at the time saw it as the sneaky start to a privatization campaign. “ (see “Hydro retreats, a little, on outsourcing“)

Hmmmm…  from Tom Hester’s newjerseynewsroom.com article:

“Martin also has international experience. He lived in England from 1991 to 1995 and worked with several large UK water and electric utilities as the companies privatized and the markets deregulated. He also spent extensive time working with utility and energy companies throughout Europe and Canada.”

please describe your prior professional corporate work with respect to outsourcing jobs and privatization and/or deregulation of water systems.

13. would you support additional privatization and/or deregulation of DEP programs? If so, which ones?

14. would you support privatization of public water and sewer services?

[Update #2: 3/4/10 - DEP has revised the Paterson study and posted a new Final Report version dated 2/24 - More to follow on exactly how the changes to the Report happened] -

[Update #1: 1/14/10 Bergen Record coverage: City's Air May Raise Cancer Risk]

In 2004, the NJ Department of Environmental Protection (DEP) embarked on a study of urban air quality in Paterson, NJ.

The City of Paterson was selected by DEP because it fits the classic textbook definition of an environmental injustice community.

The DEP study compared the dirty air of poor urban minority Paterson, with the clean air of wealthy white suburban Chester, NJ.

The $740,000 study was funded by a $500,000 grant from US EPA and supplemented by over $240,000 from DEP and other sources. The study was modeled on a previous “environmental justice” pilot project in Camden. The Paterson air study was originally planned to take 20 months, but it was delayed and not completed until late 2007 or early 2008.

But despite being competed 2 years ago, the DEP study still has not been published, publicly released, posted on the DEP website, or shared with community groups. What possibly could explain this delay???

We believe – but are unable to prove at this time because the DEP continues to withhold public documents requested over a month ago under OPRA – that DEP intentionally suppressed the study under former DEP Commissioner Lisa Jackson’s policy to require that DEP science undergo external “peer review” before public release.

Specifically, DEP managers issued a gag order on DEP scientists regarding release of data to the public. After a series of controversial DEP scientific disclosures, DEP Commissioner Lisa Jackson sought to clamp down on public release of DEP science. DEP risk assessments of Jersey City , and Camden pollution illustrate exactly why Jackson was so concerned. To avoid these kind of embarrassing public controversies, in  2008, Jackson sought to block DEP publication of DEP research study of health risks in a professional scientific journal. An email from Jackson directed the Director of DEP’s Division of Science and Research to pull a DEP study from submission to a scientific journal:

I believe this [chemical PFOA risk assessment] paper should be pulled from submission for publication pending the results of a peer review by a panel of scientists. I believe the same requirement should be applied to all scientific papers by members of this department that are based on work they do for this department or data that they have access to because of their work for this department.

I do not believe we will have this problem again since the new [Science Advisory Board] SAB will need to review any scientific paper that is related to DEP work or data before it is published. (see this for Jackson’s emails  and her creation of a controversial science advisory board)

DEP scientists described the Paterson study as “right in line with Commissioner Campbell’s initiative on “Protecting Communities from Toxics”, based on previous work ‘Camden Waterfront South Air Toxics Pilot Project’

Paterson was selected because it had all the characteristics of a classic “environmental justice” community:

• 19% of families live at or below the poverty level compared with 6.3% for the rest of the state

• 149,000 residents: 1/3 are white, 1/3 are black and 1/3 are some other race. 50% consider themselves Hispanic or Latino

• Paterson is in Passaic County which has the 5thhighest hospitalization rate for asthma in the state (NJDHSS, 2003)

• Paterson itself has 3x’s the state average for hospitalization rates dues to asthma (Wallace, 2003)

• a study found that 21% of participating 3rd graders had asthma or a related health problem (Freeman et al., 2002)

• 28 chemical air toxics (Leikauf, 2002) have been associated with making asthma worse

• EPA National Air Toxics Assessment (NATA) identified 14 air toxics causing elevated cancer and non-cancer risks in Passaic County

Here is what the study was designed to accomplish -

• community outreach, involvement, education
• provide a detailed emission inventory (1 mile radius around monitoring sites)
• model ambient levels of air toxics
• calculate cancer and other health risks
• Identify risk reduction strategies

Did the DEP study accomplish any of these objectives? We have no way of knowing because it was never published.

I recently was made aware of this project by scientists in DEP who suggested that I would be interested in the findings regarding the health risks around Paterson’s schools.  There are dozens of Paterson schools that are negatively impacted by local air pollution sources.  Thousands of kids are potential victims, and high asthma rates confirm this concern. I previously had questioned the validity of EPA preliminary air quality sampling results in NJ as part of a national program to monitor air quality from industrial sources located nearby 63 schools nationally, 2 of which are in NJ.(see “EPA Schools Air Toxics Data Misleading”)

Getting back to Paterson – based on the tip from the DEP scientist, I filed a public records request under OPRA for the Paterson data and final report that was transmitted from DEP to EPA.

I conducted a file review on December 28, 2009. I was unable to find many key documents, including the final research report submitted to EPA; or any evidence that the DEP EJ Program or the Environmental Justice Advisory Council were involved in the project (ironic, given that this was designed as an Environmental Justice project); or any internal DEP emails.

DEP still has not provided all  the records requested and has refused to provide an unknown number of public documents under a claimed OPRA exemption. It is unclear how any scientific documents could possibly be considered exempt or deliberative under OPRA. Science is by definition an open and transparent process. Therefore, any attempts to interfere with public disclosure of data and DEP science are inherently suspect.

DEP found a “combined cancer risk of 846″ in Paterson. It is 3 to 10 times higher than the Chester risk level.

I have no idea what a “combined cancer risk” is, but it appears to be the cumulative risk of multiple chemical pollutants. The worst risk is from dichlorobenzene which are 100-300 times safe levels. (see this for a toxicological profile of dichlorobenzene)

Here are some of the key findings EPA published:

These results indicated the significant impact of emissions from traffic, commercial activities and the operation of industrial facilities located in Paterson.

Benzene is emitted from numerous industrial operations as well as mobile sources and heating which may explain the seasonal variation.

Since dichlromethane is widely used as an industrial solvent/degreaser, paint stripper, aerosols, and pesticides, these relationships reflect the industrial nature and the anthropogenic activities which occur in urban centers such as Paterson.

Since tetrachlorethylene is a solvent used for degreasing and in the dry cleaning industry, these results reflect the industrial nature and the anthropogenic activities which occur in urban centers such as Paterson.

Trichloroethylene was not detected more than 50% of the time so no locational or temporal analysis was done. The maximum measured concentration was at the C site and exceeded the benchmark concentration for cancer but was 3 orders of magnitude beneath the reference concentration.

However, the weekday weekend differences for these pollutants were not observed in Chester. These observations again revealed the contribution of anthropogenic sources to ambient air pollution of these species in an urban environment.

I have many questions, based on what I found during my file review at DEP. Here are just a few initial concerns, which we will discuss in further detail in subsequent posts:

1. EPA posted an abstract of the Paterson study on the EPA website back in May of 2008.

Why does that EPA abstract whitewash the findings and not discuss key health effects and risk assessment results; or provide the identity of individual industrial pollution sources listed in the DEP emission inventories? Why does EPA’s abstract substantially deviate from the draft study I was able to obtain in DEP files?

2. Given that the DEP study was compete in late 2007 or early 2008, why has DEP still not publicly released the study, posted the data and findings  on the DEP website, and met with and briefed the Paterson community on the findings? Why was I unable to locate a Final Report and a Final Report transmittal letter to US EPA who funded the study?

3. According to documents I found, the DEP scientists were directed “not to calculate summary statistics for all sites combined”. This could only be intended to downplay the cumulative risk of the findings. What is the justification for this? Why were cumulative risk not presented?

4. Why were critical findings about flaws in DEP emissions inventory and the flaws in air permits and databases not included in the EPA abstract?

5. Why was the assessment of cumulative impacts of lead emissions from Atlantic Battery and 2 other lead sources omitted from the study?  Those findings project outrageously high blood lead levels for children in Paterson.

6. The most significant chemical driving the risk assessment was cancer causing dicholorbenzene. That risk was traced to emission from a single source, Galaxie Chemical. Why is this covered up? Has DEP enforced against Galaxie to reduce emissions?

7. I found an analysis “Evaluation of the Effects of Lead Emissions on Children’s Blood Lead Levels Atlantic Battery, Paterson NJ”. Why was this not discussed in the draft study documents I was able to obtain? Given the results of that study, was Atlantic Battery and other lead sources shut down?

8. The draft I reviewed in DEP files include a rebuttal of the controversial national USA Today series “Toxic Air and America’s Schools”. That series found major undressed risk to children from nearby toxic air pollution sources.

Why is this not in the EPA abstract and why does DEP not release it?

9. Why is EPA database on urban air toxics so weak?

More to follow on this important story soon.

Stealing a classic line from “Cool Hand Luke” (one of my favorite movies): what we’ve got here is failure to communicate.

The situation is created by slimy politics by Governor elect Christie and enabled by cowardice and/or duplicity by the NJ Environmental Federation (NJEF).

The policy issue at hand is whether DEP will require cooling towers to be installed at the Oyster Creek nuclear power plant to protect the aquatic life of Barnegat Bay.

Oyster Creek is the nation’s oldest nuke plant (see “Zombie Nuke Plants“) and is operating on a 15 year old expired Clean Water Act permit issued by the pro-business Whitman Administration (BTW, after leaving the NJ Gov.’s Office and US EPA (see testimony at page 120), Whitman took the revolving door and became a nuke industry lobbyist – see: “The Nuclear Industry’s New Shill“).

The Oyster Creek plant slaughters billions of fish, shellfish, and tiny aquatic organisms required to support the ecosystem and fisheries of the bay.

But I don’t want to get into the weeds of the substance of the issue – there is plenty of good information accessible on Save Barnegat Bay, ALS, Clean Ocean Action, and DEP websites, and Kirk Moore of the APP has written excellent recent stories.

I want to explore the politics that will determine the outcome. Understanding the chronology and permit procedure is key to seeing the politics here.

In 2005, DEP issued a draft Clean Water Act (CWA) permit to Oyster Creek that found that cooling towers were the “best available technology (BAT) for minimizing adverse environmental impact“, as required under CWA Section 316(b)/BAT.

But that 2005 draft permit was never issued due to litigation challenging the CWA Section 316(b)/BAT framework. This litigation resulted in an April 2009 US Supreme Court decision known as  Entergy Corporation v. EPA. This decision was a huge win for the nuclear energy industry and a loss for environmentalists because it allowed cost-benefit analysis to be considered in BAT decisions. The Supreme Court decision changed the factors DEP could consider and forced reconsideration of the 2005 draft permit.  On January 7, 2010, just 8 months after the Entergy decision, DEP announced a new draft permit in which they basically reaffirmed the 2005 cooling tower BAT decision, using “best professional judgment” required under the Entergy Supreme Court decision.

Before the election – and after the longstanding legal debate that led to the Entergy decision – here’s what Christie promised on the cooling tower issue (from Christie website):

Restoring the Delaware and Barnegat Bay – I will make it a priority to identify and implement strategies for better cooling systems at Oyster Creek and Salem. We cannot ignore this issue. I will not. There has to be a better way to cool Oyster Creek and Salem without putting – New Jersey taxpayers on the hook, and we will do it.

Christie is a lawyer, so one must assume he was aware of the Supreme Court’s Entergy decision. Parsing his position reveals some wiggle room to reject the cooling tower option (i.e. based on taxpayer impacts). But the Christie statement was interpreted by the press and the NJ Environmental Federation as a commitment to support cooling towers at Oyster Creek. If this interpretation over-stated Christie’s support for cooling towers, Christie did nothing to dispel this NJEF/media interpretation or clarify his position. Thus, it was reasonable to assume that he was firm in supporting the cooling tower issue.

But now that DEP has had sufficient time to apply the April 2009 Supreme Court decision and reissue the cooling tower permit, Christie is crying foul.

When the story broke on January 7, 2010, the Christie Administration initially refused to comment – but an energy industry lobbyist didn’t hesitate to talk about his understanding of the back room deal reached with the Christie Administration. The energy industry’s “understanding” is directly at odds with the “assurances” that Dave Pringle of NJEF has repeatedly been quoted in the press that he has with the Christie Administration. This contradiction alone is a major political problem. But let’s get to what was said when the story broke on January 7:

Cooling towers required by DEP

By KIRK MOORE • TOMS RIVER BUREAU • January 7, 2010

In a surprise announcement, the state Department of Environmental Protection said it is moving to require cooling towers at the Oyster Creek nuclear power plant to protect the Barnegat Bay ecosytem. [...]

Christie’s transition team did not respond to a request for comment.

“My impression is there is at least an understanding (among Christie and his advisers) that there’s a cost-benefit (analysis) to be undertaken so this doesn’t lead to unintended consequences” like a plant closing, said Rick Mroz, an adviser to the New Jersey Energy Coalition, which is supporting Exelon. (see APP: “Cooling towers required by DEP“

But after the Christie Team had time to consult with their energy industry friends and form a public position, Christie characteristically ignored the substance of the issue and went into political attack mode.

According to the January 8, 2010 Asbury Park Press: (Christie Faults Corzine on Oyster Creek Decision

Gov.-elect Chris Christie is disappointed that Gov. Jon S. Corzine “decided to play last-minute politics” with the environment and economy by proposing to require cooling towers at the Oyster Creek nuclear power plant after four years of inaction, Christie’s spokeswoman said today.

“We’ve had four years here to consider this draft (state) permit and the administration hasn’t taken any action on it until the week before the next governor is sworn in,” said Maria Comella, his spokeswoman.

Surprisingly, the Christie media team doesn’t seem to be aware of the April 2009 Supreme Court decision. That decision provided DEP just 8+ months – not 4 years – to reconsider the 2005 draft permit and issue the revised draft permit.

And surely – as a lawyer – Christie had to know that the Supreme Court Entergy decision turned on whether and how controversial cost benefit analysis could be considered in Section 316(b)/BAT decisions. He simply is dodging this critical issue to appear pro-environment and avoid the obvious criticism of elevating Exelon’s profits over the health of Barnegat Bay.

So, just who is playing the politics here?

The Press of Atlantic City reported the same harsh “playing politics” quote, but went further and reported a more troubling statement by the Christie Administration. This statement not only criticized (mistakenly) the timing of the permit decision, but amounts to a complete collapse of any notion of a commitment to cooling towers (see: “Christie disappointed by timing of cooling-tower order for Oyster Creek”

Christie received the endorsement of the New Jersey Environmental Federation based in part on his interest in improving the cooling systems of the state’s nuclear power plants. …

Comella said Christie wanted ongoing discussions that included the state, Exelon, neighbors and other interested parties. Christie did not have a particular solution in mind, Comella said: “He’d like to see all issues put on the table.”

But it gets worse.

This is not the first indication of Christie’s reversal on the cooling tower issue – and NJEF’s cowardly failure to hold him accountable to his campaign commitments upon which they endorsed him and urged the public to vote for him.

But JUST DAYS AFTER the election, Christie was asked point blank by Kirk Moore (environmental writer for the Asbury Park Press) about his views on cooling towers at Oyster Creek, to which Christie replied: (see: Nov. 7 Courier Post “Christie: COAH “has to be gutted”.

“For Barnegat Bay, Christie said he will seek a solution for the issue of cooling water discharge from the Oyster Creek Nuclear Generating Station, though he stopped short of an outright commitment to requiring that cooling towers be built at the 40-year-old reactor.”

On November 27, 2009, I wrote:

BEFORE the election, I received the below “Vote Christie”  statement from the NJ Environmental Federation.

Note the deceptively parsed language alleging a contrast with Corzine on installation of cooling towers at Oyster Creek nuclear power plant to protect Barnegat Bay:

On Election Day Vote Environment-Vote Chris Christie

Contrary to Corzine, Christie has committed to the following as you already know:
• Increasing protections for our most vulnerable and important waterways through the state’s Category 1 program;
• Replenishing the state’s bankrupt open space program;
• Requiring the state’s nuclear plants to stop their destruction in and around Barnegat Bay and the Delaware     River;
• Opposing the proposed coal plant in Linden; and
• Issuing an executive order to reduce killer diesel soot pollution.

Noting a lot of ambiguity and unsure of what NJEF meant by the weasel words “stop their destruction“, I went over to the Christie web page and – curiously – found a much clearer commitment with respect to the Oyster Creek cooling tower issue. Christie strongly implied a promise to install cooling towers, although the word smithing still gave him an out on the basis of “putting the taxpayers on the hook”. Regardless, one still must ask: why would a candidate – a person expected to hedge on controversial issues – express a clearer commitment than an environmental group?

Here’s what Christie promised on cooling towers:

Restoring the Delaware and Barnegat BayI will make it a priority to identify and implement strategies for better cooling systems at Oyster Creek and Salem. We cannot ignore this issue. I will not. There has to be a better way to cool Oyster Creek and Salem without putting – New Jersey taxpayers on the hook, and we will do it.

So, I repeat what I wrote on November 8, shortly after the election:

Folks should know that installation of Oyster Creek cooling towers was considered a “promise” Christie made to secure NJEF endorsement. So, right out of the box, he’s already broken that key promise with absolutely no accountability by NJEF, who remain “optimistic” and look forward to working with him. Are you kidding me?

So, what is going on here?

1. Why has Christie been given a pass for running away from a major – and one of his only environmental – “commitment” upon which the NJEF endorsement was based?

2. Why is no one calling out Christie and NJEF for this deception?

3. What is NJEF’s public position on the Corzine DEP cooling tower draft permit decision?

DEP’s decision now puts the ball firmly in their guy’s court.

No man is an Iland intire of it selfe; every man is a peece of the Continent, a part of the maine; …. any mans death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; It tolls for thee.

~~~~ John Donne (quoted in Hemingway)

Most people don’t associate historic upscale Chester, NJ – home of the Highlands Council – with toxic industrial chemical air pollution.

Neither do I or DEP scientists.

So, when DEP designed an urban air toxics & environmental justice study for Paterson, they selected suburban Chester as a “clean air” site to monitor background levels for comparison to what they found in urban Paterson (we will write about the larger and far more significant Paterson study shortly).

But, as I found during the course of reviewing DEP files, something odd happened when the monitoring results came back.

DEP scientists found unexpected results – levels of the toxic chemical carbon disulfide – a volatile chemical used in  manufacturing and processing activities. According to the federal Agency for Toxic Substances and Disease Registry (ATSDR), the leading experts:

Studies in animals indicate that carbon disulfide can affect the normal functions of the brain, liver, and heart. After pregnant rats breathed carbon disulfide in the air, some of the newborn rats died or had birth defects (see this ATSDR profile for complete health and environmental effects).

Science is all about hypothesis testing – comparison of the expected value with the data for the observed values.  So, because of the research study’s implicit “clean air” hypothesis, DEP now had a real scientific unknown on their hands.

So, what did they do with this mysterious data?  Where is the Chester monitoring station? What were the levels detected? What are the sources of this pollution? What are the human exposure and health risks? What is DEP doing to reduce emissions of carbon disulfide? What does DEP do to notify and involve communities in relevant health risk information and risk reduction strategies?

The answers to these basic questions might surprise you – and they illustrate a series of significant systemic flaws in how DEP conducts science, regulates pollution, and works with communities and local officials.

Here’s what I was able to find. Unfortunately, because the EPA funded $700,000+ DEP study – completed over 2 years ago – still has not been published, formally publicly released, or posted on the DEP website, we don’t know answers to basic questions.

So, to answer these questions,  I called and emailed the lead DEP scientist and DEP press office. Both  arrogantly refuse to even provide the professional courtesy of a reply. I filed an OPRA public records requests over a month ago, yet still have not yet be given all documents by DEP. I asked the DEP environmental justice coordinator about the study and was told that the study was federally funded and that EPA would not allow DEP to release the research data (Note: I believe this is a lie]. I called the Chester Health Department and spoke with the contract Health Officer – both knew nothing about this DEP monitoring station or carbon disulfide levels in Chester. So DEP failed to disclose data to local officials, health professionals, and the public.

The Chester data prompted the study’s lead DEP scientists to ask DEP colleagues to track down and locate potential sources of the chemical  – here’s the verbatim DEP email exchange:

Hi Brad,

Looks like all the high values are from Chester. Most of the hits actually. Could you look into EI [emissions inventory] around Chester to see if we have a potential source?

Thanx

Linda – as you’ll see from the spreadsheet there are only 3 potential sources of Carbon disulfide in Morris county, none of which are in Chester. …. The emissions are from the potential to emit section of the [air] permits. Carbon disulfide is not a required reported pollutant under the [air permit] emissions statements program so that is why I had to use the potential to emit information. EPA’s TRI (Toxic Release Inventory) has no emissions of carbon disulfide in Morris County. I also checked the RPPR and the results are the same.

John Jenks, Bureau Chief of DEP Technical Services then jumps in the email discussion to say:

This is why listing 200 or so compounds is not enough. The Air Toxics Initiative will fix that. CS2 (carbon disulfide) is bad stuff. Although it is not on the TRI maybe everybody realizes how bad it is and don’t use it anymore.

The next day, Brad follows up. Remarkably, despite the ATSDR profile (excerpted above) and the man made industrial emission sources he ignores in his own information (plus not properly citing his information source), Brad speculates that the mysterious source of this industrial chemical might be local wetlands! That’s right, in the heart of the chemical wasteland of NJ, blame it on nature! That way, DEP doesn’t have to do anything to regulate emissions:

Linda – here are some of the sources/uses of Carbon Disulfide. I read somewhere else …that carbon disulfide is given off by swamps/wetlands. Not sure if there are any right around the Chester monitor site but it could be a potential source and may solve the mystery of why the monitor is showing a pollutant that has no facilities around the monitor emitting it.  Hope this helps.

Sources/Uses

Carbon disulfide is a natural product of anaerobic biodegradation. It is also synthesized via the catalyzed reaction between sulfur and methane at 600 degrees C [Note: I don't think you'll find those conditions in local wetlands!]. Carbon disulfide is used in the manufacture of viscose rayon, cellophane, carbon tetrachloride, dyes, and rubber. Some solvents, waxes, and cleaners contain carbon disulfude. It is also used as an insecticide.

Based only on the DEP file review, I can tell you that DEP scientists calculated a “combined cancer risk” of 318 for Chester. Although I do not know what a “combined cancer risk” means, it appears to reflect the cumulative cancer risks of multiple detected hazardous air pollutants.

Stay tuned for the far more significant results from Paterson.

Here are the 3 Morris County carbon disulfide emissions sources DEP identified:

River Park Business Center – Hanover Township

Specialty Melt Division – Florham Park Boro

Denville Technical PK Alliant TechSystems Inc. – Denville Towship

I thought I’d seen it all in Trenton, but, again, the Department of Environmental Protection (DEP) has just set a new low. I really shouldn’t be surprised – after all, nobody at DEP got fired for failing to tell parents – for over 14 weeks – that their toddlers were being poisoned by toxic mercury fumes. See NY Times expose: Memo Shows Agency Knew of Danger in Child Care Building- [Update: compare the lack of accountability at DEP, where children actually were poisoned, with the firing of the Paramus Superintendent Janice Dime  for failure to notify parents about pesticide contaminated soil at the middle school, where there was minimal potential exposure and low risk.]

In the final Lame Duck session of the Senate Environment Committee, on December 14 2009, DEP testified to request an amendment to current law to weaken the public notification requirements to neighbors of toxic waste sites. (you can listen to that DEP testimony here – on S 3004 (Sarlo – D Bergen) approximately 10 minutes into the hearing. Here is the Senate Committee statement explaining the bill. The Assembly version is A3852 (Scalera – D Bergen).

Mr. Sarlo, a demolition engineer at Bishop-Sanzari Heavy Construction in his day job, has become somewhat of a one man legislative environmental wrecking ball, sponsoring bills to kill DEP clean water protections; gut new protections by extending expired old permits; and over-ride local planning and zoning.

But why would DEP want to limit information provided to the public?

The DEP’s sole justification – according to DEP -  is that current public notification law allegedly is “negatively impacting property values” (that’s a quote from DEP testimony). That’s correct, the DEP, the Agency created to protect public health and environment – not the NJ Realtor’s Association who’s mission is to “protect private property rights” -  said that property values were being negatively impacted, including refinancing, sales, and legal disputes over the impact of toxic site contamination on property values. DEP was the only testimony in support of the bill – DEP literally carried the NJ Realtor’s Association’s water.

I wonder if DEP asked the residents of Toms River, where a childhood cancer cluster was linked conclusively to toxic air and water emissions from the Ciba-Geigy Superfund site. Or the owners of homes in  Kings Path in Hopewell if they would have liked notification, before they purchased land and built million dollar homes on top of a toxic plume from the nearby Rockwell site (and countless other homeowners across NJ who were scammed or poisoned in their own homes from nearby toxic sites without their knowledge). Here’s the typical community response that DEP dismisses as hysterical misguided risk perception:

Emotions ran high Sept. 21 as Hopewell area residents expressed concern about their health and property values at an information meeting held to discuss cleanup efforts on Somerset and Lafayette streets in the area surrounding the former Rockwell/Kooltronic plant at 57 Hamilton Ave. in Hopewell Borough (HVN; 9/21/06)

The current public notification law (PL 2006, c. 65) was enacted in 2006 in response to outrageous lapses in DEP oversight of the cleanup of toxic sites. To cover up those lapses, DEP withheld information from residents and local officials in Hamilton, NJ (Mercer County) regarding high levels of asbestos contamination at the WR Grace site that DEP had previously said was clean; contamination at American Standard site; high levels of TCE levels at Mercer Rubber site; and failure to warn residents about development sites that had received illegal disposal of PCB contaminated demolition debris and soil from the cleanup of the Ford Edison site.

Outraged by DEP coverup, Hamilton Mayor Glen Gilmore blasted DEP by saying “We’ve been dumped on and lied to“. For weeks, this was front page news in Mercer County, prompting scathingly critical editorials by the Trenton Times.(see: “Confidence in DEP Power on Shaky Ground” [March 5, 2006] followed by an editorial titled: “The Watchdog Fails Again” [March 6, 2006]. DEP was forced to respond. And this was all happening at the same time the Kiddie Kollege scandal was brewing quietly inside DEP, which DEP covered up too – for the full history, see: Privatization of NJ Toxic Cleanup Law Reveals a Systemic Collapse)

The notification bill that was passed into law was sponsored on a bi-partisan basis by Mercer County legislators, Assemblywoman Linda Greenstein (D- Mercer) and Senator Bill Baroni (R – Mercer). At that time, I met and worked closely with Assemblywoman Greenstein on this issue and testified to strengthen the bill. (See: LEGISLATURE TO PROBE TOXIC COLLAPSE IN NEW JERSEY — Series of Cleanup Fiascoes Have Communities Feeling Betrayed and Vulnerable

Under the new law and DEP regulations, polluters are required to post signs and/or provide written notification, including a summary of the site conditions and information about actions being taken to cleanup the site, to any local property owners and tenants who live within 200 feet of the contaminated site.

This notice allows people to take common sense protective measures, like: 1) sampling their drinking water well; 2) warning children not to play on toxic sites (many of which are not fenced); 3) sampling indoor air for “vapor intrusion” ; 4) sampling soil in the yards or dust in their homes for traces on toxic contamination that frequently migrates off a toxic site (ask people in Jersey City or Pompton Lakes or  Camden about that); 5) not buying contaminated property; or 6) having soil, dust, and indoor air sampling or site investigation done prior to purchase (similar to current septic, termite, underground fuel tank, and engineering inspections).

The notice also empowers citizens to act as watchdogs and demand that the polluter and state officials cleanup the site expeditiously and completely.

Because contamainted soil, groundwater, and toxic vapors often migrate thousands of feet off a contaminated site, if DEP wanted to make the law work “better” as they testified, DEP would have sought changes to delete the 200 feet restriction; amend the definition of “area of concern” for off site migration; and dropped the pretext of concern about reals estate values. Proper notice to account for off site migration would vastly INCREASE the number of properties getting notified, and thereby further diminish land values.

Furthermore, in addition to the outrageously bad public policy position taken by DEP, their testimony was highly misleading, manipulative, and flat out false.

Specifically, DEP testimony claimed that the alleged issues of negative impacts on real estate surrounding toxic waste sites was an unintended consequence of the law that they recently discovered. That testimony is flat out contradicted by history and the facts of the regulatory proceeding conducted by DEP.

Specifically, DEP has known for many years that the presence of toxic contamination adversely impacts not only the quality of the surrounding environment and the health of exposed residents, but also the property values and ability to sell land. DEP has been reluctant historically to publicly say this, but those realities have affected virtually every aspect of the DEP cleanup program. DEP has known for many years that the community strongly negatively reacts upon learning of toxic exposure health risks associated with toxic sites, and that the property owners feel doubly betrayed by the loss of the value of their homes – nearby homeowners pay with their health and their wealth. This is all widely known. And all swept under the rug at DEP. DEP has knowingly withheld information and failed to warn residents about toxic pollution for years. It is policy at DEP.

In addition to longstanding knowledge by DEP, these alleged adverse real estate issues were raised during  the DEP regulatory phase of implementing this new notification law.

The Department published the proposed amendments in the New Jersey Register on August 6, 2007 at 39 N.J.R. 2687(a). ( see Proposal Document) The public comment period for the proposal closed on October 5, 2007. The DEP rules were adopted on September 2, 2008 (see Adoption Document)

In flat out contradiction to the testimony of Assistant Commissioner Kropp, the Real estate industry opposed the new requirements and sought to limit their scope from the get go. Here are the relevant public comments and DEP responses, provided here for those that like to delve in the details. They also are provided here for purposes of accountability. The boldface text is my explanatory notation. I hope Senator Smith – who called Kropp “the most credible person in state government” – reads them:

The Real estate industry (NJ Association of Realtors as commenter #13) flat out opposed the program:

8. COMMENT: Unless a beneficial public purpose can be established, the Sensitive Population and Resource Checklist provision, which appears to provide no public benefit in exchange for added remediation cost, should be removed. The Department should clarify the definition of “sensitive populations and resources” in proposed N.J.A.C. 7:26E-1.4(f) and how this information will be used. The Department did not adequately describe the need or use for this information. The Brownfield Act does not require the checklist and the requirement should be deleted from the rules.

The identification of sensitive populations and resources will be difficult, time consuming and expensive, and the information required is vague. Under the current rules if contamination has impacted an off-site property, the responsible party must notify that entity, regardless of whether it is a school, child care centers, residence or business. The purpose of the checklist is unclear. (2, 7, 8, 10, 13, 14, 18, 19, 22, 23, 24, 26)

57. COMMENT: Public notice requirements should be limited to the posting of a sign, with no opportunity for other parties to request additional public outreach, for site remediation activities that have little impact on the surrounding neighborhood. More extensive public notice and outreach procedures should be reserved for certain activities and the Department has failed to provide sufficient discretion as to which sites require the use of its limited resources for public outreach. The result will be fewer cases reviewed, longer delays in reviews conducted and ultimately fewer sites remediated. (13, 14, 19, 24)

66. COMMENT: The steps necessary to complete the requirements of these rules are onerous to a property owner attempting to clean up and rehabilitate a site. Application of these new public notification rules to all contaminated sites within the State is not necessary. The new rules represent a significant additional burden to the business and development communities in New Jersey. (13, 14, 19, 24, 25)

RESPONSE: The Department acknowledges the potential for time delays and increased costs of a remediation project. The Department believes that public notification of ongoing remedial activities will ultimately allow remediation projects to move faster by facilitating discussions sooner rather than later. The Department does not view these requirements as onerous or burdensome because the cost to implement the proposed requirements is not great.

121. COMMENT: People should have the opportunity to have their concerns about the remediation of contaminated sites in their neighborhoods heard by the Department and those comments should be made part of the public record. The public should be able to influence the how the remedial action is conducted.

Remediating parties should not be given the sole authority to select how remediations are implemented. The Legislature gave remediating parties that authority inappropriately. The Department should have more control over how contaminated sites are remediated. The Legislature should give the Department more authority to dictate how and to what level remediations are conducted. (27)

RESPONSE to COMMENTS 120 to 122: Historically, there has been debate about the proper level of the Department’s and the public’s involvement in the selection and approval of remedies, particularly when sites are slated for sensitive future uses such as residential or educational facilities. The Department agrees that the Department should have a greater role in selecting remedies where there is greater probability for future exposure of the public to contamination. Over the last year, the Department has been working with Stakeholders and the Legislature to address these and other issues related to the Site Remediation Program. The Department believes that these rules go a long way to helping engender public participation concerning remediation of contaminated sites.

DEP was fully aware of the real estate issues and rejected them over 1 year ago. The DEP justification:

11. COMMENT: Under subsection N.J.A.C. 7:26E-1.4(f), the Department is proposing to require the identification of sensitive populations within 200 feet of the site boundary.

Compliance with this requirement imposes a great economic burden and a drain of resources on the responsible party, yet does little to provide any actual additional benefit to the public. In fact, making such notification, absent any assessment of actual risk could cause harm to the public by creating a perception of risk that is out of proportion to the actual situation. The Department should develop a series of notification requirements that are linked to the actual level of risk to which the public is exposed. (10)

Response…..  Notification requirements are not, nor should they be, triggered by the risk of exposure to contaminants from a site. The primary goal of notification is to let people near any site know that a remediation is occurring and from where they can get information. The statute establishes the options of posting a sign or of sending notification letters, and these options are codified in these rules. The letters will provide remediating parties the opportunity to clearly explain any potential or actual risk posed by the site that may not be able to be included on the sign. The Department anticipates that more effort will be put into notification at sites that pose actual risk to their communities. Parties remediating high risk sites will probably choose to hold public meetings or conduct other outreach efforts. (@ page 9)

DEP states importance of notice, but admits – even for sensitive receptors – they can’t set priorities, even for daycares:

The Department has learned, based on its experience remediating contaminated sites over the last 20 years, that it is important to identify sensitive populations and resources that are in close proximity to a contaminated site. The Department is confident that this information will become  a valuable tool in helping both the person responsible for conducting the remediation and the Department to evaluate the real and perceived risks associated with remediation. For example, if a contaminated site has several areas of concern, the checklist may provide information that could affect the order in which the areas of concern are remediated. Specifically, if there are two leaking underground storage tanks at a site, one of which is within 100 feet of a child care facility and the other of which is within 50 feet of a parking lot, the person responsible for conducting the remediation might prioritize the remediation of the tank that is near the child care facility. (@ page 6-7)

The statute establishes the options of posting a sign or of sending notification letters, and these options are codified in these rules. The letters will provide remediating parties the opportunity to clearly explain any potential or actual risk posed by the site that may not be able to be included on the sign. The Department anticipates that more effort will be put into notification at sites that pose actual risk to their communities. Parties remediating high risk sites will probably choose to hold public meetings or conduct other outreach efforts. (@ page 9)

Real estate and industry interests opposed other language notification:

18. COMMENT: Public notice should be provided in English. The law does not require that public notice be provided in any non-English language. If a municipality officially establishes and uses a non-English language for its public notices, then public notice of site remediation work should also be provided in that non-English language. It is unclear how remediating parties are to determine with any precision if non-English speaking people live in or utilize facilities within 200 feet of a contaminated site. Given the penalty provisions in this provision, any requirement to provide notification in a language other then English should be eliminated from the rules. (6, 13, 14, 19, 24)

DEP rejected all those arguments:

The Department anticipates that most remediating parties are already aware of whether a language other than English is predominantly spoken in the neighborhoods surrounding their sites. Neighborhoods where a language other than English is spoken can usually be identified by existing business and community-related signs. If the person responsible for conducting the remediation is unsure whether a language other than English is predominantly spoken by property owners and tenants, they could contact the municipality or the U.S. Census Bureau for information.

The Real estate and industry tried to keep polluters in charge, opposed direct citizen access to government and control info and raised concerns about DEP entering the loop. But again, DEP did the right thing adn rejected those claims:

46. COMMENT: Notification signs will prompt concerned citizens to contact the Department prior to contacting the person performing the remediation. Even if the person performing the remediation is called first, the concerned citizen will still call the Department for confirmation of the information provided by the former. This would place a tremendous responsibility on the Department to field those calls. The Office of Community Relations (OCR), with a total of ten staffers, is woefully inadequate. Furthermore, those staffers will not have specific knowledge of the sites to provide adequate information to the callers and will have to call the case manager for answers. (13, 14, 19, 24)

RESPONSE: Although the purpose of these rules is to encourage dialogue between the public and the remediating party, the Department recognizes that some citizens will elect to contact the Department, rather than the remediating party. The Office of Community Relations staff will be able to provide callers with basic site information because the person responsible for conducting the remediation is required to submit a description of the site, the contamination and the actions being taken to that office. If the caller requires more detailed information, OCR staff will encourage them to contact remediating parties directly.

Also, the Department believes through proactive notification, communities will be receiving information that can allay the concerns of their citizens about sites being remediated nearby. This type of proactive outreach should result in fewer public inquiries from individuals in the vicinity of a contaminated site because concerns due to lack of information will arguably be curtailed.

[END]