WolfeNotes.com

Today’s Bergen Record runs an important story on DEP and Christie Administration plans to weaken the so called chemical “vapor intrusion” requirements: “Don’t change indoor air testing in New Jersey, environmentalists say”

Last month, we put out a national alert on this issue. In NJ, we broke the story, and we have written about that issue several times in detail here, most recently on Feb 4  in “Despite Pompton Lakes Tragedy, DEP Weakened and Now Christie Considering Nixing “Vapor Intrusion” Requirements” and again on February 12 “Questions for EPA Tweets”

But aside from the complex environmental and public health issues involved, there is a simple matter of credibility in the Christie press office.

Mike Drewniak, Christie’s press spokesman sounds like he’s with Orwell’s Ministry of Truth:

Here’s Drewniak in a Jan. 31, 2010 Bergen Record story on the DEP Transition Report “N.J. Gov. Christie’s transition team has harsh words about state’s environmental department”

“Christie’s spokesman said last week that the report will be a cornerstone of the governor’s environmental policy.

“This is not some blue-ribbon panel report that’s published, gathers dust on a shelf and then is thrown out when a new administration comes in,” said Michael Drewniak. “This is something that we will look over and take the best ideas from.”

But here’s Drewniak again, on the same issue, in the same paper, today (Feb 19, 2010: “Don’t change indoor air testing policy in New Jersey, environmentalists say”

“Christie spokesman Mike Drewniak dismissed the criticism as unfair. “None of the transition documents are administration policy,” Drewniak said. “These are all for our consideration for formulating policy moving forward. You’ll find some recommendations that are counter to the known policy of the governor. We wanted all opinions gathered, and some will be rejected outright.”

Wow! How do they go from the Transition Report as “the cornerstone of the governor’s environmental policy” to full retreat (e.g. “some recommendations that are counter to the known policy of the governor” and “some will be rejected outright“)?

Does that have something to do with the horrible press coverage Christie has received on that Report? Has there been a change in policy or PR?

So it looks like either Christie has made a religious conversion on the environment, or they are spinning big time.

Which is it?

Or are they amateurs? Or do they think we are stupid?

We’ll keep you posted.

Today’s Assembly Environment Committee hearing on a A2232, a bill to dedicate $150,000 in Island Beach State Park revenues to certain purposes, provided an opportunity to talk about increasing revenues to State Parks simply by collecting money that is owned to the State.

Amazingly, existing oil and gas pipeline and electric power-line easements across state lands - including State Park Lands – that distribute BILLIONS of dollars in products, are based on below market rates in agreements almost 100 years old – some for as little as $1 per day! DEP has failed to renegotiate these easements and leases to reflect current market value. It’s as if  you could rent Jay Gatsby’s mansion for $100 per month, the market rate in 1929.

Worse, as far as I know, even that paltry revenue is not being collected!

For several years now, I have been trying to get attention focused on the failure of the DEP Office of Leases and Consessions to collect revenues owed to the State of NJ. See: NEW JERSEY PARKS LOSE MILLIONS IN UNCOLLECTED LEASE PAYMENTS — Park Closures Could Be Averted by Reaping Concessionaire and Easement Revenue

That press release relied on a prior 2003 OLS Audit that found that DEP had not addressed prior Audit reports of lost lease revenue.

We also disclosed internal DEP documents – please read this absurd situation documented by D&R Canal Park Supervisor. The memo  describes how flawed the lease arrangements are at just one state park, D&R Canal State Park

Despite 2 prior Audits with adverse findings and OLS questions of DEP during recent budget reviews, I am unaware of any documentation or evidence that State Audit deficiency findings were ever fully corrected. I am unaware of evidence that DEP ever responded to prior OLS requests and quantified the status of revenues of the Office of leases and concessions, particularly with respect to easement revenues and the status of renegotiating prior easements to reflect current market values. (see page 9 of DEP

Commissioner’s Testimony

In this time of fiscal crisis and budget cutting, it is vital that NJ collect all revenues owed, particularly from the deep pockets out of state oil and gas corporations.

So why was my testimony today on this issue before the Assembly Environment Committee ignored? Why did the Committee Chairman take the highly unusual step to try to rule my testimony out of order as “off the bill” (see A2232) (you can listen to my complete testimony at the conclusion of this link)

In 2003, the State Audit found:

Office of Leases and Concessions

The Bureau of Parks, Office of Leases and Concessions mission includes developing and providing facilities for visitors to state parks. As part of that mission, they are responsible for the leases and concessions located within the parks. There are a wide variety of agreements including leasing of fields and orchards for agricultural uses and leasing of historic structures, cottages and dock rights for residential use. In addition, there are other agreements for easement and pipeline crossings. …. During fiscal year 2003, concession payments and lease rentals deposited into the General Fund totaled [only] $750,000 with over half attributable to the Senator Frank S. Farley marina lease. It does not appear that the monitoring of leases or collection of rent is a priority of the Office of Leases and Concessions. Our reviews of both the leases and concession components of the office noted the following issues.

Timeliness of Lease Agreements

The Office of Leases and Concessions has not sought to replace expired lease agreements.

• Three expired leases noted in our previous audit issued in 1999 have not been renegotiated and reissued. The tenants continue to operate under a special use permit in holdover status. The terms for two of the previous leases, including rental amounts due, have remained unchanged.
• Leases formerly administered by the Division of Water Resources were turned over to the office in fiscal year 1992. We noted that 15 of 20 leases are expired and need to be renegotiated.

These sweetheart deal easements  must be renegotiated to reflect current market rates. And the landlord needs to start collecting the rent.

The NJ Business and Industry Association is pushing an Op-Ed whining about the costs of air pollution permits at DEP – and using this as a sham “horror story” argument to support Governor Christie’s efforts to rollback NJ’s strict environmental regulations. Kirschner whines:

Permits are also far more expensive and difficult to obtain in New Jersey than other states. Take air permits, for example. For the largest facilities, if you’re getting one in North Carolina, the maximum renewal fee you pay is $6,500 every five years, and the permit application is about 40-pages long. That sounds like a lot, until you get to New Jersey, where the same permit could cost as much as $50,000 and require a 600-page application.

But the real problem is that current air permits are not strict enough or enforced by DEP (and NJ’s air is FAR more polluted than North Carolina’s which is why NJ must set tougher pollution control requirements).

Failure to fully implement and enforce air laws is one reason why air across the entire state of NJ exceeds EPA cancer risk standards by hundreds of times for 18 toxic chemicals regulated as “hazardous air pollutants” (HAP’s) under the federal Clean Air Act (see: EPA “National Air Toxics Assessment”). Most recently, this was demonstrated by an EPA funded air toxics study in Paterson.

Under federal law, industrial facilities that emit HAP’s must install “maximum achievable control technology“ (MACT) and NJ DEP must issue permits that mandate MACT. But scores of NJ industrial facilities do not comply with current federal MACT permit requirements and DEP has not enforced those standards in air pollution control permits for all facilities subject to MACT requirements.

Under NJ’s more stringent State Air Pollution Control Act, those facilities must install even better pollution control devices that reflect “advances in the art of pollution control“, known as “state of the art” or SOTA.

Let me explain the impacts and public health stakes of enforcement of MACT and SOTA.

During the Paterson air toxics study, high levels of p-dichlorobenzene, a suspected human carcinogen, were discovered. In attempting to track down the source of this chemical, DEP scientists focused on Galaxie Chemical. Here’s what DEP scientists had to say about Galaxie in a 8/23/07 email (pictured above):

Linda – Here’s what I found about 1,4, dichlorobenzene. It looks like the possible suspect could be Galaxie Chemical, which is less than 1/2 mile and just north of the C monitor. Their inventoried emission rate most likely will not account for your high numbers therefore it may be a situation where the company is in violation of their permit. We did not visit Galaxie, we did do a drive by with Enforcement and the place looked old and dirty.

So, we ask Mr. Kirshner of NJBIA: do any of these Rube Goldberg operations look like SOTA or MACT to you?

Would you like to live next door to these facilities?

Do you think any facilities like this are being built and are operating in North Carolina? (North Carolina polluters are subject to federal MACT requirements, just as in NJ).

So here’s an open challenge to NJBIA and NJDEP (and some enterprising investigative journalist or citizen activists out there):

1. provide a list of NJ’s industrial facilities subject to federal MACT requirements. Then tell us how many of those facilities have MACT standards in permits. Then of those facilities with MACT in permits, show us the list that have MACT installed and are meeting MACT requirements.

2. provide a list of NJ facilities that go beyond MACT to attain the NJ APCA requirements for SOTA. This will answer the question of whether NJ DEP is really protecting public health by mandating the use of the more stringent state SOTA standard, as compared to federal minimum MACT standards. The answer to this question is especially relevant right now, because Christie’s Executive Order #2 seeks to roll back stronger state standards to federal minimums.

3. Put all this emission inventory and air permit status information on a map so the communities that host these facilities can be aware of the health risks they face and fight back.

end

Today I took a trip up to Newark to attend an EPA press conference with Newark Mayor Cory Booker. EPA held the event at City Hall to talk about progress on the first anniversary of the Economic Recovery Act (see EPA press release below).

I really should have known from the EPA press advisory that “formal remarks, one-on-ones, and photo ops” really means “this is our dog and pony show, we control the message, and we are not taking tough questions from the press or audience“. No wonder the professional journalists I reached out to were not interested (although NJN camera’s were there).

Had I been given the chance I would have asked the following questions:

1)  Today, EPA is announcing Recovery Act funding of 3 “Brownfields” sites – but according to NJ DEP data, Newark has 635 known contaminated toxic sites yet to be cleaned up. Obviously, public funds can not pay for it all. But why should any taxpayer dollars be used to fund cleanup, when the NJ DEP has failed to enforce State cleanup requirements on corporate polluters?

What is EPA doing to assure that pollution laws, like RCRA, Superfund, and the Clean Water Act are enforced so that polluters – not taxpayers – pay for cleanup?

2)  Last year, the NJ Legislature privatized the State toxic site cleanup program. This means that private contractors paid by NJ polluters will be in charge of self-certifying cleanups at about 20,000 contaminated sites – over 600 of them in Newark – with virtually no DEP oversight. At the same  time, last year, the EPA Inspector General issued a scathingly critical audit of the NJ DEP cleanup program which found a systemic failure to enforce cleanup laws and major lapses in DEP oversight and extensive delays in cleanups. That audit lead to EPA assuming control over stalled cleanups at DEP mismanaged sites. Highlighting the health risks of these sites, last month, in response to community outrage and a cancer cluster linked to DEP failure advise residents of vapor intrusion risks, or to mandate timely or complete cleanup of the Dupont toxic site, EPA pledged to assure protection of public health with more aggressive enforcement and federal control of the Dupont Pompton Lakes site. Given NJ’s privatization, a broken DEP cleanup program, and what we’ve seen recently with the cancer cluster associated with lax DEP oversight of the EPA RCRA Dupont toxic site in Pompton Lakes, what steps is EPA taking to assure Newark residents that similarly dangerous sites will be fully cleaned up in a way that protects public health?

3) Last week, according to the Bergen Record, Paterson Mayor Joey Torres and community activists were blind-sided by an EPA funded study conducted by NJ DEP that found elevated levels of several industrial toxic chemicals increase already unacceptable high cancer risks and childhood asthma rates (see Bergen Record: Paterson air study raises questions and City’s air may raise cancer risk). Are you aware that in 2005, EPA funded a similar community air toxics/environmental justice study in Newark’s East Ward? That  study is not available on EPA or DEP websites but it found elevated levels in asthma and other respiratory illness in children at 3 pre-schools in Newark’s East Ward. When will EPA release and discuss this study with the Newark community?

See EPA press release below:

US EPA Regional Administrator, Judith Enck

EPA-funded Brownfields Projects Announced in Newark on

One Year Anniversary of Recovery Act

Contact: Beth Totman (212) 637-3662 (office), (646) 369-0064 (cell), totman.elizabeth@epa.gov

(New York, N.Y. – Feb. 17, 2010) In the year since February 17, 2009, the day President Obama signed the American Recovery and Reinvestment Act (ARRA), projects funded by the U.S. Environmental Protection Agency (EPA) have yielded cleaner air, water and land, and new green jobs across the country. Today, EPA Regional Administrator Judith Enck was joined by Newark Mayor Cory Booker and other Newark officials, as well as environmental justice advocates, to mark the one year anniversary of the Recovery Act and highlight the progress that has been made using Recovery Act funds around the city of Newark to assess and clean up contaminated properties called brownfields.

EPA brownfields grants address properties at which expansion, redevelopment, or reuse may be complicated by the presence of toxins. Newark received $600,000 in ARRA funds to conduct cleanups at three sites; a former gas station on Bergen Street, the NSC Plating and Polishing Company on South 12^th Street, and the International Metallurgical Services site on Blanchard Street.

“A year after President Obama signed the American Recovery and Reinvestment Act, it’s clear that the environment, public health and the economy are benefiting from projects like these in Newark,” said EPA Regional Administrator Judith Enck. “Due to Recovery Act funding, contaminated and abandoned lots are being cleaned up in a manner that protects public health and the environment. These properties can then be redeveloped and will generate more tax revenue, thereby providing both environmental and economic benefits to the residents of Newark.”

“As we continue our transformation of Newark, we are making sustainability and ‘green’ policies a central part of our efforts. Thanks to our partnership with the Environmental Protection Agency and the stimulus dollars received under the American Recovery and Reinvestment Act, we are able to remediate once-blighted brownfields in our City, and restore them to productive use, which will improve the environment and health for all of our residents. Together with our community partners we are continuing to build a stronger, safer, prouder City,” Mayor Booker said.

On Feb. 17, 2009, President Obama signed the American Recovery and Reinvestment Act, providing more than $370 million for environmental cleanups and enhancements across New Jersey, including:

• Over $161 million in wastewater improvements
• Over $43 million for drinking water projects
• More than $6 million in clean diesel projects
• Almost $160 million for Superfund cleanups
• Nearly $5 million to address leaking underground storage tanks
• $2.25 million for brownfields assessments and cleanups

In 2009, Newark received $600,000 in ARRA funds to conduct cleanups at the Bergen Street site, the NSC Plating and Polishing Company and the International Metallurgical Services site.  The stimulus-funded cleanup activities will help reclaim these three sites for productive uses, including retail, housing and light industrial purposes.  Each development is part of a broader neighborhood development strategy that benefits the City and its residents at large. Since the program began, EPA has awarded $2.2 million to Newark for assessing and cleaning up brownfields.  For more information about EPA’s Brownfields program, visit http://www.epa.gov/brownfields/

When President Obama signed the American Recovery and Reinvestment Act, he directed the Recovery Act be implemented with unprecedented transparency and accountability. To that end, the American people can see how every dollar is being invested at http://www.recovery.gov.

For more information about projects funded through ARRA in this region, please visit: http://www.epa.gov/region02/eparecovery.

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Below is a proposed Op-Ed I submitted to all the major newspapers in NJ – it was a reply to an Op-Ed they published by NJBIA supporting the Christie environmental rollbacks.

There was no interest in running it, so I guess they like to hear from the same voice they publish in their news stories – and not a harder edged attack on corporate NJ:

Christie and Business Community Scapegoating Environmental Protections as Harming Economy – Have They No Shame?

Voices in the business community are clamoring to use the economic crisis as a pretext to rollback NJ’s strict environmental standards.  Like good propagandists, they mobilize “disaster story” anecdotes and half-truths to promote self-interested objectives.

And they have a receptive ear in Governor Christie, who after only 1 hour in office issued a series of sweeping executive orders to freeze rules, create a Regulatory Czar, and then rollback environmental and public health protections to minimum federal standards.

Although reported favorably in the press as a reasonable effort to impose a 90 day “time out” and form a “Red Tape Review Commission” to review State regulations and streamline government to promote economic development, Christie’s Orders represent a radical departure from NJ’s policy, legal, and political traditions.

Executive Orders 1-4 take a very old page out of the Chamber of Commerce and  chemical industry playbook. Those groups have a long and sordid history and well-documented track record of lobbying to delay, weaken or even kill environmental rules. They do this by establishing all sorts of procedural hurdles and back door opportunities to work their way behind closed doors.

Business lobbyists consistently exaggerate the costs of curbs on pollution and restrictions on development. They ignore public health and environmental benefits, and use slogans like “sound science” to manufacture bogus political disputes that “sound like science”. They bring political pressure to bear in order to exploit pseudo-academic policy analysis techniques, such as cost benefit analysis, and advocate other  so called “common sense” principles, like rolling back NJ’s strong projections to minimum federal standards.

What these ideological short sight voices ignore however, are facts and the democratic preferences of the people of the state.

The Wall Street driven economic collapse is a prime example of what happens when government regulatory protections are rolled back and free market forces are allowed to run wild.

Under that kind of conservative ideological policy, short-term private greed displaces any notion of what’s in the long run public interest.  Recent history shows that the economic collapse we are now experiencing invariably follows in the wake.

But NJ’s environment is at a tipping point and we can ill afford to rely on the same deregulatory policies that could cause irreversible environmental collapse, on top of the current economic collapse.

As a result of our industrial legacy and the historical development as a regional suburb of NY and Philadelphia, NJ is faced with enormous environmental challenges.

The environmental indicators that justify NJ’s stringent environmental and public health regulatory protections are uniformly dire.

NJ is the nation’s most densely populated state with the most cars, most development, most pavement and most toxic pollutants per square mile. NJ’s precious shore is highly over-developed and vulnerable to storms and sea level rise. Yet we continue to lose more than 15,000 acres of forests, farms, and wetlands per year to new development. NJ’s racially and economical segregated urban communities bear unjust disproportionate pollution and health burdens.  Contradicting lots of empty political rhetoric about reducing emissions, NJ’s greenhouse gas emissions continue to rise steeply. NJ has the most toxic Superfund sites and more than 20,000 other toxic sites. Communities are threatened by at least 15 chemical facilities, where an accident or terror attack could kill more than 100,000 residents. In NJ, more than 65% of streams and rivers and 100% of lakes fail to meet water pollution standards and lack cleanup plans. Statewide Fish Consumption Advisories warn that fish and shellfish are too toxic to eat. Over 12% of residential water wells fail health standards. The entire state does not meet health based standards for air pollutants ozone, fine particulates, and numerous cancer causing toxic chemicals; and not surprisingly NJ has the nation’s highest cancer and asthma rates.

No wonder, according to a recent Monmouth University/Gannett poll, 79% of NJ residents – on a bipartisan and socio-economic basis – oppose rollbacks on NJ’s environmental regulations as a solution to the state’s dual fiscal and economic crises.

A recent economic study found that NJ’s “natural capital” – its wetlands, forests, farms, fisheries, beaches, and rivers – provide almost $20 billion per year in economic benefits.

Those capital resources are protected by the DEP at a cost of less than $60 million to NJ taxpayers through the General Fund – that less than one tenth of 1% of the $30+ billion State budget!

So business interests should stop their cynical attempts to exploit people’s fears and insecurities in a time of economic crisis by scapegoating NJ’s strong environmental regulations and the professionals at DEP who deliver enormously valuable and cost effective services to the people of NJ.

Bill Wolfe is Director of NJ Chapter of PEER, Public Employees for Environmental Responsibility

He is a former 13 year career planner and policy analyst at DEP.

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How Does Newark’s Air Quality and Community Health Compare to Paterson?

The Bergen Record recently reported on a controversial $740,0000 EPA funded study of toxic air pollutants in Paterson NJ (see Paterson air study raises questions and City’s air may raise cancer risk).

Paterson residents were alarmed to learn that according to NJ DEP, Paterson has “toxic hot spots”, where industrial hazardous air pollutant emission sources are located near homes and schools.

DEP found that Peterson had characteristics of a disproportionately burdened “environmental justice community” based on race and income data and high rates of children’s respiratory health problems linked to pollution. According to DEP: chemicals in the air in Paterson exceed DEP cancer risk levels by over 700 times:

Paterson has more than three times the state average for hospitalization rates due to asthma (Wallace, 2003). A study in Paterson (Freeman et al, 2002) found that 21% of third graders had been diagnosed with asthma or a related health problem. Paterson… has the fifth highest hospitalization rate for asthma in NJ (NJDHSS, 2003). Twenty eight air toxics (Leikauf, 2002) have been associated with exacerbations of asthma and the 1996 [EPA] National Air Toxics Assessment identified fourteen air toxics which are causing elevated cancer and non-cancer risks (NJDEP, 2003) in Passaic Countys

Paterson Mayor Torres and community activists expressed concerns:

Paterson Mayor Joey Torres said he was “disturbed at the findings,”…

“We’re willing to believe the results of this study are not controversial, but the DEP certainly has acted like they have something to hide,” said the Rev. David B. Wolf, rector of St. Paul’s Episcopal Church in Paterson and a leader of the community advocacy group Paterson Area Congregations Together. He said there very well might be a conflict of scientific opinion about the validity of combined cancer risk assessments, but “why don’t they say that in the report? It feels like there’s a little bit of spin going on.”

But is anyone aware of the fact that EPA funded a similar urban community air toxics monitoring project in Newark? Other than an extremely obscure EPA website, I could find no information about this study, other than a summary (see below).

Whatever became of this study? None of the links on the EPA “Community-Based Air Toxics Project” website were able to lead me to a copy of the study itself. According to EPA, the organization that performed the Study, Environmental Justice & Equity with Community-based Teamwork (EJECT), is active in Newark’s East Ward and are located in Atlantic Highlands. I could not find a phone number to contact them.

Maybe Mayor Booker and Congressman Payne can reach out to EPA and have EPA brief the Newark community and the press on the study’s Final Report. That would be quicker than forcing me to file OPRA and FOIA requests from DEP and EPA, respectively.

Here is the EPA website summary of the project – none of the EPA website links are working:

Newark [Toxic Air] Pollution Prevention Improvement Plan

Bloggers are often criticized as parasites on the mainstream media (some in the newspaper business even blame the internet for the demise of the industry), so I try to produce original content and generally avoid writing about or criticizing stories that run in the mainstream press.

Seeking a wider audience, instead, I try to get the stories I write and documents I disclose reported in the mainstream press. I also like to defy journalistic conventions by intentionally avoiding red meat soundbites, burying the lede, and rambling on for hundreds of words before I provide the good stuff in links at the end of the post.

But, for several important reasons, this particularly story is different. Lets break that down.

To their credit, the Philadelphia Inquirer today is the first to begin to connect the dots on the Christie environmental policy and shine some light on the arcane arena of regulatory policy. Most DEP regulations generally remain under the media radar. Previously, the Bergen Record and the Asbury Park Press reported on the Transition Report – both stories were strongly critical of Christie’s policy.

But the “in the weeds” details of regulatory policy are where the rubber meets the road in environmental protection. The process and standards for developing rules and the fine print in the rules themselves determine outcomes – and rules impact the entire state. Thus, the stakes in regulatory policy debates are huge (literally life and death (see this).

Business groups understand this and they pay big money to high powered law firms, technical experts, and lobbyists to work on regulatory issues that effect them. Christie too understands how the game is played, which explains why he made the existing rules – which already are really bad – worse by his institutional attack on DEP and structural changes to DEP regulatory policy via Executive Orders. This is why I spend most of my time working on regulatory policy issues and DEP implementation.

Given the stakes, it has always amazed and frustrated me at how few resources and little attention regulatory policies tend to get by both environmental groups and the media.

The regulatory arena demands the expertise of policy wonks and lawyers. Because rules are complex and the regulatory process is not transparent, the public is at a huge disadvantage. Thus, there is a crucial need for expert advocates to analyze rules and translate their implications to the public via media. But unfortunately, most reporters and environmental groups are ill-suited for the job and therefore tend to avoid the fine print of regulatory analysis in favor of media spin (press releases), legislative lobbying, or activism on local projects.

NJ philanthropic foundations/funders and client environmental groups like defined campaigns that tend to be local “place based” (“Stop X” “Save Y”, “Preserve Z”) or single issue focused (“Clean [Energy,Water, Air] Now!). Even those groups that work at the state level and in Trenton put first priority on legislative lobbying and media. A focus on lobbying tends to lead to certain compromises in terms of withholding criticisms in exchange for inside access. Similarly, most reporters roll their eyes when pitched a complicated regulatory story that requires investigative work. So environmentalists who depend on the media to promote their issues tend to avoid regulatory stories they know have little chance of being published because reporters and editors simply won’t write them. And the activist leaning NJ enviro groups typically narrowly focus activism and pour huge legal resources into individual development battles, projects, or sites, not the underlying regulations that govern outcomes.

Time and time again, in the wake of hugely popular legislative initiatives (e.g. Clean Water Enforcement Act, Pollution Prevention Act, Global Warming Response Act, California Car, et al) after the environmental groups declare victory and move on to the next sexy campaign, the industry lobbyists remain engaged and work behind the scenes at DEP to eviscerate legislative wins through the back door of regulatory fine print.

Invariably, when local activists get down into the details of a particular project they oppose, they find that the DEP and the program regulations are working against them and real environmental protection. Yet despite discovery of this flawed regulatory reality, not one percent those advocacy resources are investing in work on fixing the underlying regulations that effect hundreds of similar projects across the entire state.

And when DEP regulations do mange to get media attention, it is not unusual for policy issues to be spun beyond recognition, or missed entirely, or reported as “he said/she said” debates, with no attempt by the reporter to read the rules and discern fact from fiction.

I am tired of watching this train wreck repeat itself.

I have been blogging on these issues in hopes of changing these dynamics.

So I am hopeful that today’s Inquirer story will spur other media outlets, editors, and reporters to cover these issues. After all, the Bergen Record won The John B. Oakes Award for Distinguished Environmental Journalism for their “Open for Business” series on the Whitman environmental rollbacks.

I also hope to alter the currently totally unacceptable stance within the environmental community. As discussed below, lack of consensus and the political cover provided by the NJ Environmental Federation are serious impediments to playing strong defense against the Christie onslaught.

Adrienne Lu of the Inquirer reported on business and environmental group reactions to the Christie DEP Transition Report, and a series of sweeping Executive Orders. The story’s mixed headline flags the lack of consensus in the environmental community on the Christie agenda:

Kudos and caution greet Christie’s business boost – Backers cheer changes that let firms weigh in early on new rules. Some environmentalists worry

“Some environmentalists” could have been written more accurately as “all but Dave Pringle of the NJ Environmental Federation”.

Again, shockingly, Pringle/NJEF defies all his environmental colleagues and is the sole enviro on the same page in supporting Christie’s policy as the NJ chemical industry and business groups. Hal Bozarth and Dave Pringle – perfect together! Here’s how the Inquirer story tells it:

True to promise, in his first few weeks on the job, Gov. Christie has tilted the playing field in favor of business in New Jersey.

Through executive orders, he has upended the way regulations are created, giving his administration broad power to block rules it doesn’t like and allowing businesses to weigh in early in the process.

The business community is thrilled, while environmental advocates worry the economy will be used as a cover to dismantle longtime protections.

Christie is “saying that the state has to reform and redo its regulatory process so that it’s no longer a disincentive for new investment,” said Hal Bozarth, executive director of the Chemistry Council of New Jersey. “That’s frankly the first time in my long tenure that I’ve heard those things.” [...]

Dave Pringle, NJ Environmental Federation. The lone supporter of Christie, he has come under harsh criticism by his colleagues.

Dave Pringle, campaign director of the New Jersey Environmental Foundation, which endorsed Christie, was the sole representative of environmental advocacy groups on the DEP transition team. While he disagreed with the tone of the report, Pringle said it contained many ideas his group supported, including prioritizing science over political considerations.

Respectfully, what we are dealing with here is far more than the “tone” of the Transition Report. And as far as I know, Pringle represented only NJEF on that Transition Team – he was NOT the representative of other advocacy groups.

And on the substance, Pringle is again dead wrong and provides more misleading spin to the press and the public. The last time, he got caught spinning about the Transition Report and Todd Bates of the Asbury Park Press again called him out. In a February 6, 2010 story “DEP rules under review, agency’s fate uncertain” Bates reported:

But Karrow wrote and takes full responsibility for the report, according to David Pringle, a member of the panel that issued the report. He is campaign director for the New Jersey Environmental Federation, a coalition of 100 groups and 100,000 individual members.

However, Steve Wilson, a spokesman for the New Jersey Business and Industry Association, said a colleague — David Brogan, vice president for environmental policy — helped write the report.

And prior to that, in a November 23 story “Eco-Lobby frets over rules freeze“, Bates caught Pringle spinning about the impact of Christie’s moratorium on environmental rules. Pringle denied that the moratorium in EO #1 would harm the environment. But directly after Pringle’s quote the APP story listed several major DEP rules it blocked. In a November 24 post, I pointed that out that contradiction, by quoting the following text from the APP story:

David Pringle, campaign director for the New Jersey Environmental Federation, said “the state has a lot of inefficiencies and overlapping and conflicting rules, and there’s plenty of things that have absolutely no impact on environmental and public health protection.”

But flat out contradicting Pringle’s spin, the APP reports on just some of the DEP environmental rules that would be impacted (for a full list, see this post)

The Department of Environmental Protection, for example, has 18 proposed rules, including one that would cover wind turbines and solar panels in the coastal zone. …

In a letter last week, Christie asked Corzine to freeze all pending regulations that would result in additional spending.

Pending DEP proposals would readopt safe drinking water and water pollution control rules; require lower-sulfur, less-polluting fuel oil; set standards for wind and solar facilities in the coastal zone; and set a limit for perchlorate, a rocket fuel chemical, in drinking water.

It is unusual for a journalist to print a quote from a source, directly followed by another source or facts that directly contradict it. This shows how low Pringle’s credibility is.

Pringle’s position in today’s Inquirer story (about prioritizing science over politics) is more discredited spin that is in direct contradiction with facts on the public record, because:

1)  the process for developing rules in EO 2 requires “advance notice”. This increases the ability for industry/developers to use politics against science to kill rules.

2) Of course, the industry lobbyists also have a back door unaccountable option to kill rules based on political considerations in the Lt. Gov Regulatory Czar created under EO 1. I believe that this violates the NJ Administrative Procedures Act;

3) the legal standards in EO 2 elevate costs to at least an equal stature as science, thus undermining the science. I believe this violates underlying federal and state environmental laws that do not authorize DEP to consider costs;

4) In a Star Ledger interview, DEP Commissioner nominee Bob Martin said he supports “cost/benefit analysis“, a tool often used by industry expressly to trump science. Martin also supported industry reps on the Science Advisory Board – 3 Dupont scientists have been nominated, as well as 3 other private sector consultants – of 12. So much for objective science.

5) there is no money to improve DEP information systems

More to follow as this story develops.

[Update – I just read this and want to make one ignored point clear – this has nothing to do with an expert/top down approach versus local/grassroots organizing. The regulatory analysis, blogging, and media coverage I work on is designed to provide the ammunition to initially outrage citizens, to catalyze activism, to sustain media engagement, and then to focus and feed citizen campaigns that leads to real progress. I have successfully engaged this model many places.

The past is a remarkable thing. And you know the trite saying about those who fail to learn the lessons of history.

Well, a brief look back shows how Governor Christie is duplicating - almost verbatim – the failed environmental policies of Governor Whitman.

Ironically, as we document in detail below, Whitman herself conceded that failure in her own confirmation hearing for US EPA Administrator. So step right up and come along with us on this magical mystery tour.

Shortly after taking office in 1994, Whitman announced her DEP Commissioner, Bob Shinn, a man with no academic training or professional experience in environmental management. Christie’s DEP nominee, Bob Martin, shares more than a first name with Mr. Shinn.

In spring of 1994, Governor Whitman held a press conference in the Governor Office to personally issue a policy Report with the perverse acronym STARR: “Strategy for Regulatory Relief”. Christie has his “Red Tape Review Commission” Report teed up for spring.

In precisely the same fashion that the Christie Transition Report demonized DEP and environmental regulations for allegedly crippling the economy as a pretext for dismantling environmental protections, the Whitman STARR Report called for the following: (see page 130 of Whitman’s US Senate confirmation hearing transcript):

· Cutting New Jersey’s RTK list from 3,000 to 800 chemicals;
· Increasing the thresholds for DEP environmental reviews of local sewer plans;
· Reduction/elimination of compliance monitoring at major industrial facilities;
· Allowing industry lobbyists to rewrite State air permit regulations;
· Rollback of New Jersey’s model Clean Water Enforcement Act;
· Easing solid water industry economic regulation;
· Rolling back New Jersey’s hazardous waste management regulations to Federal
minimums deregulating used oil as a hazardous waste;
· Relaxing standards for hazardous waste site cleanup;
· Reducing enforcement penalties;
· Providing grace periods;
· Polluter immunity for self disclosed violations;
· Alternate dispute resolution;
· Emission trading and privatization of permit reviews and hazardous site cleanups;
· Budget and staff reductions at DEP.

Shortly thereafter, on November 2, 1994, Whitman issued Executive Order #27. Whitman’s EO 27, just like Christie’s EO #2, required “cost benefit analysis” and promoted “federal consistency“, a policy that called for rolling back NJ’s standards to federal minimums.

Whitman recklessly issued this federal consistency policy sought by major NJ polluters like the NJBIA and Chemical Industry Council, despite warning memo’s to her DEP Commissioner that federal standards were not “technically justifiable” and totally inappropriate for NJ.

Specifically, to illustrate what was at stake, we disclosed a July 29, 1994 memo from Assistant Commissioner Nagy to Commissioner Shinn, that compared DEP’s strict standards with weaker EPA requirements and warned of a significant increase in the number of potential fatalities. This was not some tree hugger warning, it came from Shinn’s own Assistant Commissioner (complete memo found on page 126 of Whitman transcript):

Industry (e.g., CIC and NJBIA) would obviously prefer backing off to the EPA thresholds. ….However, the increases made by EPA on adoption were so large (averaging some 18 times the TCPA values with 33 of the 60 substances common to both lists assigned from 5 to 167 times corresponding TCPA values) that they are not technically justifiable in an area as densely populated as New Jersey where substances are generally handled on small sites, and would correlate with a significant increase in the number of potential fatalities.

At the request of the then US Senate Environment Committee Chair, we submitted testimony seeking to hold Whitman accountable for the policy objectives and implementation record of EO 27 (see page 120-154 of transcript). Here was our statement to the US Senate on EO27:

Statement 3f: ‘‘Whitman issued an Executive Order 27 (1994) that mandated that State regulations that are more stringent than Federal requirements be justified by cost benefit analysis. This Order resulted in the across-the-board weakening of, among other things, State regulation for air, water and waste permits, deregulated used oil as hazardous waste and eroded chemical plant safely requirements addressed under the provisions of Section 112r of the Clean Air Act Amendments of 1990.’’

Remarkably, instead of defending her own “federal consistency” policy, cost/benefit analysis, and Executive Order 27, Whitman submitted testimony that not only falsely denied any rollback of NJ’s state standards (there were several), Whitman did a complete U Turn and strongly made the case in support of NJ’s standards.

The Senate Environment Committee Chair asked Whitman to respond. Read Whitman’s verbatim response to our testimony below (found at p.132-139).

Whitman’s inventory of NJ’s strict environmental standards serves as a primer for Governor Christie. It lays out in detail why Christie’s Executive Order #2 is fatally flawed and why it will suffer the same fate as Whitman’s EO 27.

And in another supreme irony and historical echo, the Whitman response was written by John Spinello (see this), a corporate lawyer who also served on the Christie Environment Transition Team:

Response On Executive Order 27: Executive Order 27 (EO 27) stated that State agencies should consider applicable Federal standards when adopting regulations 136 that have Federal counterparts and should analyze whether existing Federal standards sufficiently protect the health of New Jersey’s citizens. When DEP determines that New Jersey needs more stringent standards, EO 27 simply requires us to explain that decision. Therefore, the Order does not prohibit DEP from adopting standards or regulations that are more stringent than their Federal counterpart and did not force DEP to weaken all existing standards in order to comply with the Order; New Jersey still has the flexibility to promulgate more stringent standards where necessary. In fact, after careful analyses, NJDEP has adopted numerous environmental standards or rules that are more stringent than EPA’s. Some examples include:

AIR

1. New Jersey’s standards for mercury emissions from municipal solid waste incinerators are more stringent than EPA’s. EPA standard is 80 ug/m3 or 85 percent control and New Jersey is 28 ug/m3 or 80 percent control. New Jersey’s standards were effective 1/1/96 whereas EPA’s just came into effect in 12/00.

2. New Jersey’s air toxics program is more comprehensive than EPA’s. New Jersey requires facilities to list air toxic emissions on their permits if they exceed a predefined threshold value. This would then potentially trigger a risk assessment by DEP or the application of a state-of-the-art standard for those air toxics. EPA on the other hand only requires air toxics to be listed on a permit if EPA has promulgated an emission standard for the particular source operation being permitted.

3. EPA does not have NOx RACT rules per se, but the NOx standards in their acid rain rules are less stringent than the NOx standards in our NOx RACT rules.

4. The stringent NOx standards for power plants in our NOx budget rules (.15 lbs/mwh) set the stage for EPA’s subsequent SIP call to 22 States.

5. Our preconstruction permitting program (Subchapter for new and modified non—major sources is more comprehensive than EPA’s. EPA’s permitting trigger is between 25–100 tons per year of a given pollutant whereas New Jersey’s trigger (although it’s equipment based) equates to as low as approximately one ton per year.

HAZARDOUS WASTE

1. New Jersey’s ‘‘10 day’’ transfer facility requirement is more stringent than EPA’s. We have standards for how waste must be managed during the 10 day holding period and we prohibit the mixing of unlike materials. Also, transporters must tell us that they’re operating a 10-day facility and must keep logs of material entering and exiting the facility. EPA does not have these requirements.

2. New Jersey requires hazardous waste generators to submit hazardous waste manifests (shipping papers), whereas EPA does not.

3. New Jersey requires hazardous waste transporters to be licensed, whereas EPA does not.

4. New Jersey requires entities to submit plans to us for approval before they can process used oil. EPA does not. Also, our standards for halogens in used oil fuel (1000 ppm) are more stringent than EPA’s (4000 ppm).

SOLID WASTE

1. We regulate transfer stations, transporters, and recycling facilities whereas EPA does not.

2. The Solid Waste Utility Control Act requires that people engaged in the solid waste business be regulated as a utility. New Jersey’s rules therefore set forth business practices, transaction standards, competition requirements and billing practices. There is no Federal counterpart to this.

3. The Comprehensive Regulated Medical Waste Management Act sets forth registration, transportation and waste handling requirements that are in addition to the solid waste requirements. This Act was based on a Federal version which has since lapsed. We are not aware of a Federal counterpart at this time.

4. The A–901 Disclosure Review Act sets forth standard that must be met in order for an entity to engage in the business of solid waste transportation or processing/disposal. There is no Federal counterpart to this Act.

SITE REMEDIATION

1. When determining whether a site is sufficiently remediated, in most cases we are more stringent than EPA. New Jersey applies a risk factor of 1×106 (increased lifetime cancer risk)to individual contaminants whereas EPA applies a risk range of 1×104 to 1×106 and it is based on the cumulative impact of all contaminants.

2. We regulate large non-residential heating oil underground storage tanks (greater than 2,000 gallons), whereas EPA does not.

3. New Jersey requires that only New Jersey licensed individuals perform work on Federal and state-regulated underground storage tanks. There is no corresponding Federal requirement.

4. New Jersey’s Industrial Site Recovery Act prohibits certain types of industrial properties from being sold or transferred unless they are remediated first. EPA does not have this requirement.

COASTAL MANAGEMENT

1. New Jersey’s freshwater wetlands program includes buffers in the definition of transition areas whereas EPA does not.

SAFE DRINKING WATER

1. New Jersey has 15 chemicals for which we either have more stringent standards than EPA or we have a standard whereas EPA does not. For example, for MTBE, we have a standard whereas EPA does not. Also, for trichlorethylene, New Jersey’s standard is 1 ppb, but the Federal standard is 5 ppb.

2. New Jersey has 13 drinking water standards that are more protective than Federal standards, and standards for 5 additional contaminants beyond those regulated at the Federal level.

WATER

1. New Jersey has regulations governing the construction of wastewater treatment and conveyance systems whereas EPA does not.

2. New Jersey permits all discharges to groundwater whereas EPA only permits underground injection and discharges at RCRA facilities.

3. The State law commonly known as the Clean Water Enforcement act (CWEA) has a number of provisions which are more stringent than the Federal Clean Water Act. In particular, the CWEA requires the Department or Delegated Local Agency to impose mandatory penalties for monitoring omissions or effluent violations that are serious violations or that cause the violator to become a significant non-complier.

PESTICIDES

The following pesticide initiatives/rules go beyond EPA programs and requirements Requirements for notification of the public prior to applications of pesticides so the public may take precautions to minimize exposure if deemed necessary.

1. Require commercial applicators to be licensed and certified (take exams) prior to using any pesticides, not just the more hazardous ‘‘restricted use’’ pesticides, as an additional protective measure. Require annual refresher training for agricultural workers.

2. Rules on applications conducted in schools in order to be protective of children, who are a vulnerable population.

3. Extensive regulations to prevent contamination, risk and exposure in homes and public buildings during structural pest control applications.

4. Regulate an additional industry sector of dealers of restricted use pesticides through licensing and record keeping requirements.

5. Require permits for aquatic pesticide applications and mosquito control applications to prevent pesticide misapplications and contamination in bodies of water and hazardous exposure during large-scale community spray programs.

RELEASE PREVENTION

1. New Jersey’s discharge prevention program is more stringent than the Federal requirements in that the State program covers a vast array of chemicals as well as petroleum and petroleum products. IN addition, all plans required to be developed under New Jersey rules must be submitted to NJDEP for approval, while Federal plans are only required to be submitted for facilities with over one million gallons of storage or facilities that have a discharge. The State program inspects all regulated facilities once a year, and also inspects some non-regulated facilities whereas the Federal program inspects only a fraction of the regulated universe.

2. New Jersey’s TCPA (Toxic Catastrophe Prevention Act) program is more stringent than the Federal program as follows: more covered chemicals; lower thresholds for some chemicals; more reporting requirements; and more inspections per year. Also, the State program requires a risk reduction effort after a hazard analysis is performed.

3. New Jersey’s RTK chemical inventory reporting program is more stringent than the Federal program in that employers must report regulated chemicals at a 500 pound threshold rather than the 10,000 pound Federal threshold. The State’s environmental release reporting program requires reporting at 10,000 pounds rather than the Federal 25,000 pounds. Also, the State program includes materials accounting where the Federal program does not.