WolfeNotes.com

[Update 7/21/10 – DEP Commisioner Martin approves hunt – click on to read story. Brian Murray of the Star Ledger seems to disregard the public as much as Bob Martin, when he casually writes:

Martin’s approval was considered somewhat of a formality because he had already signaled his support for the plan back in March,

If Martin’s approval was “somewhat a formality“, I guess that makes the public hearings and thousands of public comments in opposition a complete sham.

The relationship between the Council and the powers of the DEP Commissioner went to the Supreme Court on this very issue. The  Court vested the final policy decision with the DEP Commissioner and not the appointed Council for a reason.

Do we have a democracy or not?. – end update]

DEP held a pubic hearing tonight to take public comment on regulations to authorize a bear hunt.

But, DEP Commissioner Bob Martin – with no training or experience, after less than 3 months on the job, and before any public hearings were held – already approved a controversial bear hunt for this year weeks ago (see DEP press release and links to bear management plan and procedure for submitting written comments).

Martin’s decision was a slap in the face to thousands of New Jersey residents who have long vehemently opposed the bear hunt.

And in this particular case of approving a DEP management plan (which is not like a regulatory decision on the science of a drinking water standard, where science plays a far more significant role in decision-making), Martin is making a highly discretionary public policy choice. Martin’s insistence of basing DEP decisions on “science” and “data” is just not appropriate.

The management of the public’s wildlife resources must consider non-scientific value laden factors (what scientist Alvin Weinberg famously referred to as “trans-science” in his classical article), including the preferences of the public, the availability of alternative non-lethal management measures, and fundamental ethics.

Martin hides behind pseudo-science to mask these values and political choices that he has made -  and arrogantly made before even listening to the public.

I spoke to oppose the hunt basically on ethical grounds. Black bears are a human like, sentient species that it is just flat out wrong to kill for recreational purposes (as opposed to subsistence hunting).

Seeing a bear in the wild is an incredibly moving, special experience. More NJ residents would benefit from this and there are many ways to safely eco-exist with bears. I am glad to have experienced that in NJ along the AT. Bears are a primal indicator of the wild that must be preserved.

There is also much evidence that the cause of the problem is human development and encroachment on bear habitat. It is not the bear population but human encroachment that is the cause of the problems of alleged bear/human conflicts.

The DEP professional staff that developed the plan, the Fish and Game Council that approved the plan, and the management plan itself are strongly biased in favor or a recreational hunt to serve the narrow interests of the politically organized and powerful hunters lobby.

DEP scientists also have a conflict of interest because hunters license fees fund their salaries and management programs.

Under these conditions, the public interests warrants non-lethal management measures.

To hoist the Commissioner on his own petard, I noted procedural deficiencies in the proposal, including it’s failure to comply with the requirements of Governor Christie’s Executive Order #2.

Although I have strongly opposed that Order, it is legally binding on DEP. Specifically, under that order DEP is required to

Engage in the “advance notice of rules” by soliciting the advice and views of knowledgeable persons from outside of New Jersey State government, including the private sector and academia, in advance of any rulemaking to provide valuable insights on the proposed rules, and to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.

Governor Christie’s objective in issuing EO#2 was to prevent bad regulatory decisions, exactly like the regulatory amendment to approve the bear hunt. DEP failed to comply with the requirements of EO #2.

As a result of DEP’s failure to comply with this advanced  notice requirement, DEP has not been able to consider “valuable public insights” on non-lethal wildlife management strategies and as a result, proposed an “unworkable and ill advised rule”.

Governor Christie’s Executive Order #2 also requires, among other things, that DEP:

Employ the use of cost/benefit analyses, as well as scientific and economic research from other jurisdictions, including but not limited to the federal government when conducting an economic impact analysis on a proposed rule.

DEP simply failed to comply with this requirement.There is no CBA of the proposed regulatory amendment to adopt a management plan approving the hunt.

As a result, the public was denied an opportunity to comment on important economic issues, including the significant positive external benefits of bear populations, the hedonistic and existence values of bear populations, and the negative external costs of hunting, including safety risks, conflicting recreational uses of state lands, and nuisance dis-amenities.

DEP must withdraw this proposal because it does not comply with EO #2 requirements.

Hopefully, after economic analysis and listening to the non-hunting public,. Martin will change his mind (a decision which he couldn’t have thought about very deeply anyway)

And why wasn’t the public hearing held in bear country? The Trenton hearing location shut out thousands of voices.

Martin: BPU/Rutgers EMP “one of the worst pieces of economic analyses I’ve ever seen”

Fresh off last week’s unprecedented and false attacks on DEP scientists and Senate Majority Leader Barbara Buono, DEP Commissioner Bob Martin repeats and expands his errors.

Martin now is attacking the Board of Public Utilities staff, Rutgers economists and planners, and state econometric and energy models.

A “NJ Spotlight” story by former longtime Star Ledger energy and environment reporter Tom Johnson reported on the Assembly oversight hearings on how Governor Christie’s 90 day “reassessment” and more than $300 million cuts will impact the Energy Master Plan (EMP) – we wrote about the Assembly hearing here). In the Spotlight story, Martin blasted the economic analysis of the EMP.

But compare Martin’s hack attack with the professional response of his colleague, BPU President Lee Solomon (who merely put a happy face on a bad Christie policy):

Cabinet officials insist they do not envision a radical rewriting of the [Energy Master] plan. But Department of Environmental Protection Commissioner Bob Martin and Board of Public Utilities President Lee Solomon have made it clear they believe it fails to consider the economic consequences of pursuing such ambitious targets, including reducing energy consumption by 20 percent by 2020. …

“There has to be a cost benefit analysis on the things we do,” said Solomon, whose agency will take the lead in reviewing the plan. “We can’t simply impose what we would like to happen on the state of New Jersey.”

Martin is even more adamant about the plan’s flaws. “It is one of the worst pieces of economic analyses I’ve ever seen done,” he said at a clean energy summit in New Brunswick last month. “They didn’t put the numbers of what it would cost the ratepayer or industry.”

Like the bully on the playground, someone has got to take Mr. Martin on. He can not be allowed to go around trashing things and people he knows so little about.

Although I trained in planning at Cornell’s Graduate School and was a DEP planner and policy analyst for 13 years, I am no expert on the EMP and economic modeling. But it might as well be me because I don’t see any profiles in courage out there stepping up to the plate and taking on Bully Bob Martin.

The economic analysis of the EMP was conducted by Rutgers University (see: Updated Modeling Document) :

The Center for Energy, Economic and Environmental Policy (CEEEP) and the Rutgers Economic Advisory Service (R/ECON), both located within the Edward J. Bloustein School of Planning and Public Policy of Rutgers, the State University of New Jersey, have been tasked by the New Jersey Board of Public Utilities (BPU) to provide data and modeling support for the master plan effort.

The data for the U.S. used come from Global Insight, Inc., a national leader in economic forecasting

The economic analysis was based on econometric and energy models used widely in NJ. The modeling and economic analysis were extensively reviewed during a 2 year planning process:

A series of prior events helped to build the foundation for this report. On December 18, 2006, CEEEP and R/ECON presented the modeling framework used in this report to stakeholders. On January 5 and 19, 2007, CEEEP convened two technical working groups to elicit input on electric generation and transmission. In addition, CEEEP and R/ECON participated extensively in many stakeholder meetings convened as part of the Energy Master Plan process from late 2006 through September 2008.

The electric utilities and the business community participated in the EMP model development, planning, and economic analysis.

If the Rutgers economic analysis “was one of the worst pieces of analysis ever done” as Martin now claims, where were the energy industry experts and business community economists and why weren’t they raising objections to correct such a flawed piece of work?

A valid critique of the EMP analysis would focus on its failure to include billions of dollars in economic benefits and avoided costs of dirty coal power and global warming, which should be right up Martin’s alley as DEP Commissioner. But he is silent on these flaws because they make a stronger case for efficiency and renewables, while his objective is to gut those policies for short term economic rewards to the business community.

Martin is simply taking cheap shots by using after the fact economic conditions (i.e. dramatic drop in oil and gas prices; economic recession; reduced demand).

Martin’s severe criticism shows he’s not only a political cheap shot artist, but that he knows nothing about economic modeling, sensitivity analysis, scenario testing, or the role of models in planning. As the EMP itself explained, models are not precise and uncertainties are inherent in the modeling exercise:

In short, the Energy Master Plan must explicitly deal with uncertainty and the prospect that things will turn out differently from what was assumed. This often gets lost in the discussions as modeling is frequently assumed to be a forecasting effort with definite outcomes. The data and modeling assumptions have associated ranges of uncertainties. Even in situations in which one would think the range of uncertainty should be small, e.g., the cost of a combustion turbine, they can be surprisingly large. These uncertainties need to be considered when evaluating calculations. Although models calculate numbers to a precise value, this “precision” is a programming artifact and must be understood as such. What also should be kept in mind is that the range of uncertainty varies with specific assumptions. The uncertainty in the cost of a combustion turbine is smaller than the uncertainty of the cost of off-shore wind, which is in turn smaller than the uncertainty associated with the cost of a new nuclear power plant.

A primary driver for the current modeling draft calculations is the assumptions about the cost and magnitude of energy efficiency and demand response for electricity and natural gas. If one assumes that energy efficiency and demand response are cost-effective (which numerous studies have concluded) and that state policies can successfully influence energy efficiency and demand response, then one does not need modeling to conclude that energy bills will decrease, environmental impacts will be lessened, and the New Jersey economy will not be harmed. The modeling provides the order of magnitude, confirms the intuition, and helps target policies that can help to make these outcomes more likely. Thus, the preliminary calculations to date reflect the assumptions that they are based upon.

Here are the details, for Mr. Martin’s edification (and I question whether he has even read the EMP and reviewed the modeling):

C. Description of Models

Two major models are used as part of this effort. The first is R/ECON, a detailed econometric time series model of the New Jersey economy. The second is DAYZER, a sophisticated model of the PJM2 wholesale electricity power market. This model, DAYZER (Day-Ahead Locational Market Clearing Prices Analyzer), is a unit commitment and dispatch model that mimics, as closely as practical, the dayahead wholesale electricity market that New Jersey is part of (PJM), including calculating the locational marginal prices (LMPs) that vary by location and time. The results from DAYZER, along with many other assumptions, are then provided to R/ECONâ„¢ as inputs.

1. R/ECON – The New Jersey State Economic Model

R/ECON is an econometric model comprised of over 300 equations, which are solved simultaneously. The equations are based on historical data for New Jersey and the US. The historical data used to produce the model covers the period from 1970 to 2006, with some sectors updated through 2007. The sectors included in the model are:

ï‚· Employment and gross state product for 40 industries
ï‚· Wage rates and price deflators for major industries
ï‚· Consumer price index
ï‚· Personal income and its components
ï‚· Population, labor force and unemployment
ï‚· Housing permits, construction contracts, and housing prices and sales
ï‚· Energy prices and usage
ï‚· Motor vehicle registrations and stocks, and
ï‚· State tax revenues by type of tax, and current and capital expenditures.

The heart of the model is a set of equations modeling employment, wages, and prices by industry. In general, employment in an industry depends on demand for that industry’s output, and on the state’s wages and prices relative to the nation’s wages and prices. Demand can be represented by a variety of variables including (but not limited to) New Jersey personal income, NJ population, NJ sectoral output, or US employment in the sector. Growth in population is driven by total employment in the state and by state prices relative to national prices.

As part of this project the model was extended to include additional equations related to the energy sector. The equations in this new model sector are:

ï‚· Electric price per kilowatt hour, residential, commercial, industrial, and other;
ï‚· Electricity usage for residential, commercial, industrial, and other;
ï‚· Electric revenues in billions of dollars residential, commercial, industrial, and other;
ï‚· Natural gas price per thousand cubic feet, by sector, including the electric power sector;
ï‚· Natural gas usage by sector, including the electric power sector;
ï‚· Natural gas revenues in billions of dollars;
ï‚· Fuel oil price per million BTU, by sector;
ï‚· Fuel oil usage by sector;
ï‚· Motor fuel price and usage;
ï‚· Energy sales and corporate business taxes in millions of dollars; and
ï‚· Employment at electric utilities and other utilities.3

The R/ECON forecasting service produces four forecasts of the New Jersey economy each year. This study used the June 2008 R/ECONâ„¢ forecast as its baseline for the BAU and the June 2008 R/ECON Pessimistic forecast for the BAU Pessimistic baseline.4 Both baseline forecasts go out to 2020. The data for the U.S. used come from Global Insight, Inc., a national leader in economic forecasting. Tables 1 and 2 list the categories of inputs and outputs of the R/ECON model.

2. DAYZER – The PJM Wholesale Electricity Market Model

DAYZER calculates locational market clearing prices and the associated transmission congestion costs in competitive electricity markets.5 This tool simulates the operation of the PJM electricity market ”the dispatch procedures adopted and used by PJM”and replicates the calculations made by PJM in solving for the security-constrained, least-cost unit commitment and dispatch in the day-ahead markets. The LMP and congestion cost calculations are based on data on fuel prices, demand forecast, unit and transmission line outages, and emission permits costs. DAYZER incorporates all the security, reliability, economic, and engineering constraints on generation units and transmission system components.

DAYZER has the following features:

ï‚· Accurate security-constrained unit commitment and dispatch algorithms that mimics those used
by PJM in the day-ahead market
ï‚· Accurate modeling of PJM with its own particularities (second contingency constraints, locational
reserve markets, etc.)
ï‚· Captures marginal transmission losses in dispatch and clearing prices
ï‚· Captures transmission outages, transmission contingencies, nomograms, and planned and known
transmission upgrades
ï‚· Models accurately phase angle regulators and loop flows
ï‚· Allows users to analyze various scenarios and quantify the impact of key variables/assumptions
ï‚· Employs random outage using Bernoulli Probability modeling
ï‚· Enables the optimization of generation maintenance schedule based on reserves
ï‚· Uses import and export schedules to account for flows to and from neighboring markets

DAYZER requires that both transmission and generation additions and retirements be input exogenously into the model.6 The existing PJM transmission system is used in the DAYZER runs with additions as noted in Appendix A of this document.

In the current modeling effort, generation expansion plans are based on the following process: PJM’s load forecasts by zone by year are used to calculate the hourly loads using PJM’s 2006 load duration curve. The amount of system-wide installed capacity is calculated based on PJM’s 15% reserve margin. Renewable generation that is needed to meet individual states Renewable Portfolio Standards (RPS) is then included in the expansion plan. If additional generation is needed to meet the installed reserve margin, it is added. The type (baseload, intermediate, or peaking) and the fuel (nuclear, coal, or natural gas) are determined by reviewing the PJM generation interconnection queue for each particular PJM zone. Historically, the PJM generation queue contains more generation than is actually built. DAYZER is then run using the candidate expansion plan to ensure that generation unit capacity factors are appropriate for the type of unit and to ensure there are no hours in which demand exceeds supply in each zone that DAYZER tracks. In addition, locational marginal prices and net operating revenues are checked to ensure that either retirements or new generation would not otherwise occur. Modifications to the candidate expansion plan are made as necessary, and DAYZER is re-run until a satisfactory expansion is developed.

[Update – today’s Asbury Park Press story reports that not everyone’s corrupt – I certainly am not saying or implying that here. There are plenty of very good people in government – its just that they are working in a corrupt system]

We have long complained that science, permitting, and enforcement at DEP are routinely subject to inappropriate political influence by industry lobbyists, legislators, and local officials who intervene and pressure DEP to provide favors to special interests.

At best, these kind of political interventions at DEP skew priorities and create chaos in managing various programs at DEP.

Worse, they undermine the integrity of the agency and lead to the kind of severe abuses of the environment and the public interest we’ve seen at Encap, Petty’s Island, and scores of similar fiasco’s, most of which are not written about in the newspapers.

We have called for reforms at DEP to provide safeguards to restrict these abuses.

But both the problems we identified and the reforms we proposed have been ignored.

Despite numerous confirmed cases of political intervention at DEP (some of which that resulted in criminal convictions), and the fact that a survey of DEP employees found that “nearly three out of four employees believe that the “regulated community excessively influences DEP permitting, policy and enforcement decisions“, DEP officials, legislators and reporters continue to deny the problem and simply dismiss the claim as either unproven or an anomaly: the one bad apple excuse.

Ironically, the Christie Administration’s DEP Transition Report focused on these problems, which is perhaps the only policy we can support in that Report, which correctly stated:

Furthermore, inappropriate political interference from all levels of government has at times, influenced decision making. This has tied the hands of staff trying to issue permits and consequently, the hands of those both trying to develop and redevelop NJ as well as environmental organizations trying to improve the quality of NJ’s natural resources and historic sites.

But even that one shred of positive was washed away last week by events at DEP.

First, DEP Direct of Land Use Management Tom Micai testified in the criminal corruption trial of former Assemblyman Van Pelt. Micai oversees CAFRA, wetlands, flood hazard, and Highlands permitting.  According to the May 5 Asbury Park Press:

Micai testified about the process that one must undertake in order to obtain certain environmental permits. Under cross-examination, he acknowledged it is not uncommon for local officials and lawmakers to contact him about expediting certain projects. Micai said he tries to accommodate those requests.

We thought that DEP’s own testimony confirming our claims of systemic abuses at DEP would trigger  some press attention and response from DEP Commissioner Martin to defend the integrity of his organization.

We were wrong on both counts.

But it gets worse.

Instead of keeping the fact of routine political interference at DEP a deep dark shameful secret, Martin just flat out bragged about it in a press release!

In a May 7 press release, Martin said:

Although Exelon has been working with the DEP on the issue, the state does not believe the actions to date have been timely or extensive enough to have adequately protected the water supply. Recent inquiries from legislators and the news media have caused us to re-evaluate the Exelon contamination.

“We have determined there is a need for more immediate action to compel Exelon to act,’’ said Commissioner Martin.

Martin’s “determination”  – by his own words – was based on politics and designed to avoid bad press.

So much for Martin’s Mantra Talking Points about basing DEP decisions on “facts” and “science”, most recently regurgitated last week:

“I have committed to base final DEP decisions on a thorough review of all available science,’’ said Commissioner Martin. “So it is very important that our facts are accurate and we are transparent when having a public dialogue on any issue.”

And I won’t even touch Martin’s absurd and deeply hypocritical transparency claim.

Save your neck;

Or save your brother.

Looks like it’s, one or the other.

~~~ The Band (1970) (watch)

[Update 5/10/10 – I wrote some of the stuff about my personal experiences with the Catholic Church Sunday night, before reading Chris Hedges’ Monday column: After Religion Fizzles, We’re Stuck with Nietzche:

We are rapidly losing the capacity for the moral life. We reject the anxiety of individual responsibility that laid the foundations for the open society. We are enjoined, after all, to love our neighbor, not our tribe. This empowerment of individual conscience was the starting point of the great ethical systems of all civilizations. Those who championed this radical individualism, from Confucius to Socrates to Jesus, fostered not obedience and conformity, but dissent and self-criticism. They initiated the separation of individual responsibility from the demands of the state. They taught that culture and society were not the sole prerogative of the powerful, that freedom and indeed the religious and moral life required us to often oppose and challenge those in authority, even at great personal cost. Immanuel Kant built his ethics upon this radical individualism. And Kant’s injunction to “always recognize that human individuals are ends, and do not use them as mere means” runs in a direct line from the Socratic ideal and the Christian Gospels.

The great religions set free the critical powers of humankind. They broke with the older Greek and Roman traditions that gods and Destiny ruled human fate—a belief that, when challenged by Socrates, saw him condemned to death. They challenged the power of the tribe, the closed society. They offered up the possibility that human beings, although limited by circumstance and human weakness, could shape and give direction to society and their own lives. These religious thinkers were our first ethicists. And it is perhaps not accidental that the current pope, as well as the last one, drove out of the Catholic Church thousands of clergy and religious leaders who embodied these qualities, elevating the dregs to positions of leadership and leaving the pedophiles to run the Sunday schools.

Mother’s Day brings us back to our childhood, I suspect. And that’s a good thing.

Not nostalgia, but love, reverence, and roots.

So, this Mother’s Day finds me in a more reflective mood than since my Mom died in 2003, just after her 74th birthday and just before Christmas.

Since then, I’ve regretted not reaching closure on any number of things (she died somewhat unexpectedly after surgery, but that is really an excuse for my failure to open a dialogue well before death was knocking on her door) and for my total failure to speak out and tell the truth at her funeral.

If I had any balls at all, I would have spoken at her funeral and told the family truth.

My mom was a brilliant and powerful woman who raised three kids without a husband and father. She worked her ass off at one shitty job after another to make ends meet, and yet had time to serve her community in multiple ways, first at the PTA, then Girls Scouts, as founder of the High School Hockey Boosters, as Westchester County BOCES Board member, as longtime School Board member, and ultimately as Tarrytown School Board President.

Perhaps her proudest moment was when NY Governor Mario Cuomo  appointed her to a Blue Ribbon panel to develop a plan for the reuse of the former General Motors plant property on the Hudson River waterfront.

She was the intellectual equal (or superior) to the various professionals (lawyers, doctors, architects, and planners) she worked for as a poorly paid typist or secretary, so it must have been frustrating and very hard for her to maintain dignity. In an age when few women moved into academic and professional roles, she was forced to forgo her own college education and went to work after graduating High School in 1946 due to family finances. But, she ultimately got her college degree, working as an adult student after age 50!

She provided an example to me not only by her commitment to hard work, education, public service, and intellectual pursuits (our house was full of books and even opera on the radio when we were kids). Because I lacked a role model at home, she made sure to show me what professional  men did to make a living. As a child, I often spent my weekends at the well to do homes of the various professionals she worked for.

She took my two sisters and me on vacations in the Adirondacks. These vacations, coupled with her penchant for screaming that forced me out of the house and into the local woods -  quite unintentionally – instilled a continuous and early love of nature. It was lots more fun to be out of the house in the woods than at home with all the pain and bullshit going on there.

But all her life she struggled to escape the shame and guilt imposed on her by her a Depression era Catholic alcoholic family life.  Both her parents were alcoholic, so the Catholic Church was called upon to fill the void. But, tragically, the Church ended up imposing tremendous guilt and shame that scarred my mom her entire life.

The pre-Vatican II thinking in the Catholic Church shamed and effectively excommunicated my mom as a result of her divorce from my dad in the early 1960’s. Mom’s older sister, my Aunt Rosalie, became a Captain in the Salvation Army, and routinely showed up at Thanksgiving dinners or Christmas get togethers to pour on the Catholic guilt and shame. Mom’s younger brother, my Uncle Charlie, was a sensitive man that was wounded in and destroyed by the Korean War. Treatment of his wounds led to  his early addiction to heroin, after which he became an alcoholic. Mom preferred to keep Uncle Charlie’s real life struggles hidden in her family past. Uncle Charlie was gay as well, a fact that was suppressed and that I didn’t learn of until adulthood. I also didn’t know that he was forced into the Army by the Courts as a result of a minor crime he engaged in in High School, when he a a few friends broke into a local hardware store.  I didn’t find out about this until long after Charlie’s death.

These things burn and they get worse – not better – after time.

So – while I tried to raise my kids to be open and honest (and hopefully free from all that bullshit shame and guilt I grew up with) -  just  like I did when I was a kid, I prefer an escape to the woods than the trauma of having to deal with the toxic stuff of my childhood.

Walks in the woods comfort me. But despite the fact that there were lots of blow-down today, I know that the plants are firmly in charge.

Just take a look and see – the amazingly vibrant woods in my backyard are damn near primeval!

Note that although there are lots of historical disturbance and recent tree blowdowns, but that the plants have responded and are in complete charge! And I will remind readers that virtually all of these shots were taken of the Category One buffer of Alexauken Creek!. So, regulatory protections matter!

The NJ Drinking Water Quality Institute met on Friday May 7. The meeting was held in the wake of recent controversies regarding DEP Commissioner Martin’s action to kill a proposed DEP standard for perchlorate (which led to this embarrassing cartoon and editorial: Cleaner Water) and the unusual resignation of long time Chair, Rutgers Dean Mark Robson.

Robson abruptly resigned in February, apparently in frustration over the DEP’s failure to adopt the perchlorate proposal and other important regulations to implement recommendations in the Institute’s  major March 2009 Report: New Jersey Drinking Water Quality Institute Maximum Contaminant Level Recommendations for Hazardous Contaminants in Drinking Water)

In response to questions and criticism of his decision to kill the perchlorate proposal, in an unprecedented and false attack on DEP scientists, on April 27, Martin testified to the Senate about why he killed the DEP proposal (quotes from Martin testimony, per Bergen Record):

Under questioning from state Senate Majority Leader Barbara Buono during budget hearings on Tuesday, Martin said he originally intended to sign the proposed rule until he realized “our science was shoddy and I refuse to sign anything that doesn’t have adequate science to back it up.”

He said of the DEP researchers: “The data they provided was poor, not organized, anecdotal at best.” Martin also said nobody was able to document the public health risk of the chemical to his satisfaction.

As I wrote previously, Martin’s testimony is flat out false.

The DEP science and Institute recommendations that supported the DEP rule proposal were not shoddy or anecdotal, and they were not poorly organized. In fact, they were presented in detail to Martin. There was adequate science to support the proposed standard. There were current and rigorous risk assessment, toxicological data, and data on documented occurrences in NJ water supplies to demonstrate public health risks, click on links to see:

New Jersey Drinking Water Quality Institute Maximum Contaminant Level Recommendation for Perchlorate, October 7, 2005

Examine the scientific and public health justification for NJ standard

EPA Federal Register Notice – Regulatory Determinations for Priority Contaminants on the Second Drinking Water Contaminant Candidate List

And if Martin “originally planned to sign” the proposal, then why does the Red Tape Review Report state that the proposal was killed as follows:

“DEP will delay adoption pending the issuance of federal standards from EPA this summer and a more rigorous cost benefit analysis” (Source: Red Tape Report, Appendix G, @page 113 HERE.].

During the public comment period, I spoke at length to explain why the Drinking Water Quality Institute has a moral duty and professional obligation to set the factual and scientific record straight.

I strongly urged the DWQI members to defend the science, uphold the integrity of the Institute, and reaffirm the professional reputations of the scientists who conducted the analysis that formed the basis for the perchlorate rule Martin killed.

Martin’s false testimony has harmed these scientists both professionally and personally, and is therefore intolerable.

Tracy Carlucchio, with Delaware Riverkeeper and a member of the Highlands Council, raised similar concerns and supported my request that the Institute write a letter to Commissioner Martin that explains the science and advises him specifically why his statements are in error.

But  instead of seeking a face saving way out of the mess Martin himself created by killing the perchlorate proposal, Martin is digging a deeper hole.

On Wednesday, Martin made another large mistake.

In a transparent attempt to shift the focus from the substance of his poor decision and false testimony, Martin tried to make the issues appear to be a petty partisan political battle.

In another unprecedented move for a DEP Commissioner (at least that I can recall, and I go back to 1985), the DEP Commissioner called out a legislative leader!

Martin issued a highly inappropriate and unseemly press release that explicitly challenged Senate Majority Leader Barbara Buono:

IMMEDIATE RELEASE:  Contact: Lawrence Ragonese (609) 292-2994
May 5, 2010 Lawrence Hajna (609) 984-1795

COMMISSIONER MARTIN REFUTES STATEMENT BY SENATOR BUONO – WANTS GOOD SCIENCE TO BE BASIS OF PERCHOLRATE RULES

(10/P35) TRENTON – Department of Environmental Protection Commissioner Bob Martin today refuted a statement by Senator Barbara Buono, who contended  he has done an “about face” on setting drinking water standards for the chemical perchlorate in New Jersey.

“I have not changed my position at all,” said Commissioner Martin. “From the start, I have insisted we need good, reliable data and scientific information before making such an important decision on water standards. We anticipate getting that information this summer, when we expect the federal EPA to share with us the results of research they have done and their direction on perchlorates.”

There are at least 5 discrete issues being conflated here, so let’s tease each one out:

1) The quality and status of the DEP science supporting the proposal

See above comments and links. Martin is just dead wrong – factually – in his statements.

Furthermore, the minutes from the DWQI’s last meeting on February 1 reveal that the Institute was fully aware of the quality and most recent science (which could only make the proposed 5 microgram/liter standard lower). The DWQI sought to reiterate their support for the perchlorate proposal in light of this new science, and advise Martin to proceed with adoption of the proposal:

The subcommittee expressed support for the DEP adoption of an MCL for perchlorate on 5 micrograms per liter MCL, as proposed prior to its expiration date. The subcommittee agreed revision of the perchlorate MCL would be considered only once it has been adopted, in light of this new information on infant exposure”

These same minutes also reveal that the Institute was carefully briefed in detail by DEP staffers about the impacts of Governor Christie’s Executive Order #2 and the possibility that it could force not only the perchlorate proposal, but other Safe Drinking Water Act rules to expire. Noting the exemption in Executive Order #2 for public health, Institute member J. Klotz (of UMDNJ) specifically suggested:

given their relevance to protection of public health, the drinking water rules caught in this “freeze” should be eligible for reconsideration (EO did allow for a 10 day window for each agency head [i.e. Martin] to review the list of rules, but that window expired on January 30)

The Feb. 1 minutes also show that then current members of the Institute attempted to brief newly appointed members on the perchlorate proposal, and seek their support.

DWQI decided that the DWQI perchlorate recommendation document would be circulated so that new DWQI can review it. Within three weeks, DWQI members would convey their opinions to Chairman Robson about whether the DWQI should recommend to the Acting DEP Commissioner that the perchlorate MCL be adopted. If DWQI members agree, Chairman Robson would send a letter conveying the DWQI recommendation to …the Acting Commissioner.

That effort failed. The new members did not sign off on the proposal, and the letter in support to Commissioner Martin was never sent. Perhaps this was the straw that broke the camel’s back and led to Robson’s resignation.

Regardless, the DWQI minutes show that everyone – including Commissioner Martin – was fully aware of the state of the science and the implications of Executive Order #2 on the proposal’s expiration date and need to act with urgency to avoid expiration.

That didn’t happen and it is the result of the polices set forth in Governor Christie’s Executive Order #2 , which seek consistency with federal standards and require cost benefit justification, and the mismanagement of Bob Martin.

But instead of accepting responsibility for that unpopular and reckless policy decision, Martin attacks DEP scientists and makes up lies about EPA allegedly pending rule this summer. Which leads us to our next point.

2) what EPA will allegedly decide “this summer”

One of the shifting pretexts Martin has offered to explain why he abandoned the proposal is “pending the issuance of federal standards from EPA this summer” (Source: Red Tape Report, Appendix G, @page 113 HERE.].

But as we revealed, an EPA March 12 email to Martin and a March 16 phone call specifically told Martin that EPA would NOT be issuing a drinking water standard this summer, but rather merely would make a preliminary decision about whether to regulate. In response to our disclosure, Martin has now revised his statements about exactly what EPA says it might decide “this summer”. Which takes us to our next point.

3) the timing of any EPA regulations that would be adopted;

EPA specifically advised Martin that no federal drinking water standard would be in effect in NJ for up to 6 and 1/2 years. Martin instead made misleading statements that implied EPA was about to impose a national standard and that was why abandoned NJ’s proposal – to wait for the federal standard. Marin continues to mislead on this, despite our disclosure, by suggesting that some new science with come forward from EPA. But, as EPA has advised Martin, EPA will be making a regulatory determination about whether to regulate. What EPA will do this summer is basically make a policy call on how to apply the science. On the status of the science, EPA also has specifically told Martin that EPA is no longer seeking National Academy of Science input, so the EPA so called new science Martin claims to be forthcoming is just not true.

4) The differences between the EPA 15 ppb guidance value and the proposed DEP 5 ppb MCL standard

The proposed DEP 5 ppb drinking water standard is based on the same toxicological science as the EPA 15 ppb guidance value. The toxicological basis is known as the “reference dose” (RfD). The DEP’s lower 5 ppb value is explained by the fact that EPA used different exposure assumptions and target population – EPA did not consider infants and DEP used a higher rate of water consumption by infants.

In fact, DEP submitted comments on EPA’s guidance value that were critical of EPA’s failure to consider risks to infants. We requested these comments ion a Open Public Records Request we filed to DEP, but DEP failed to provide these documents. We believe that Martin intentionally and illegally withheld these documents, because they not only show DEP science is strong, but that the EPA proposal he is waiting for is flawed.

The DEP comments pointing out the EPA flawed science was referenced by DEP in the rule proposal itself, where DEP wrote:

It should be noted that on October 10, 2008 USEPA issued a preliminary regulatory determination for perchlorate through its drinking water Contaminant Candidate List process (73 Fed.Reg., page 60262). USEPA preliminarily determined that a drinking water standard (MCL) for perchlorate is not needed. Instead USEPA will publish a final non-enforceable health based guidance level at the same time its final regulatory determination is issued. The USEPA regulatory determination established a drinking water Health Reference Level for perchlorate of 15 ug/l. The Department has submitted comments expressing concerns with the USEPA preliminary regulatory determination. The main points made in the comments are: 1) A health based level of 15 ug/l is not protective of infants, as they would be exposed to several times the RfD at this concentration. 2) USEPA should adopt a Federal drinking water standard, rather than drinking water guidance, since perchlorate occurs in public water supplies at levels of health concern at a frequency sufficient to warrant regulation. (proposal at page 6. emphasis supplied)

5) the technical basis for the federal EPA versus NJ DEP drinking water standards

We have been writing about cost benefit analysis (see this for great critique of CBA) and its role in undermining science and public health based standards.

A recent article in the Harvard Environmental Law Journal “Beyond Cost-Benefit Analysis: A Pragmatic Reorientation” it provides an outstanding analysis and includes very relevant case studies of mercury (clean air) and arsenic (drinking water) standards. The authors conclude:

This reorientation eschews the use of CBA, except where it is legally required, because it is unnecessary and irrelevant in other contexts, it lacks sufficient accuracy if relevant, and it pursues a normative vision of regulation that is inconsistent with the precautionary policies concerning protection of people and the environment that Congress has adopted.

This makes a CBA-centered RIA unnecessary and irrelevant to analyzing regulatory issues that arise under a statutory mandate. We make an exception for the rare circumstance where Congress has mandated the use of a cost-benefit test.

The second step is to determine the level of regulation by using the “statutory standard”. Statutory standards vary, but Congress has almost never chosen a cost-benefit test to establish the level of regulation. Only two of twenty-two major health, safety, and environmental statutes rely on a cost-benefit test as the statutory standard.

A comparison of federal and NJ Safe Drinking Water Act laws with respect to the role of CBA is an excellent illustration of these threats.

The federal Safe Drinking Water Act does authorize EPA to consider costs in setting minimum national drinking water standards (MCL’s). The article clearly explains how EPA develops federal MCL’s and exactly how CBA weakens them (source: about Harvard LR article):

The SDWA establishes a three-step process for regulation. First, EPA determines a “maximum contaminant level goal (“MCLG”), which the statute defines as “the level at which no known or anticipated adverse effects on the health of persons occur and which allows for an adequate margin of safety”343 EPA then specifies a maximum contaminant level (“MCL”) that comes as close as “feasible” to achieving the MCLG.344 Finally, if the benefits of the feasible MCL do not justify the costs, EPA may choose a MCL “that maximizes health risk reduction benefits at a cost that is justified by the benefits”345

But the NJ law is stricter and does not authorize CBA – which is a very good reason why the Christie Executive Order #2 cost benefit analysis justification and federal consistency policy are so flawed. Both CBA and federal consistency weaken NJ protections.

DEP very clearly distinguished the role of economic factors in EPA setting minimum national standards, from the stricter NJ SDWA, which does not allow costs to be considered as a factor in setting drinking water standards. Quoting DEP’s rule proposal, as we wrote on March 12:

The [NJ Drinking Water Quality] Institute considers three factors when recommending MCLs: health effects, technological ability to measure the contaminant level, and ability of existing treatment technologies to meet the MCL. For chemicals causing effects other than cancer (noncarcinogens), the goal is the elimination of all adverse health effects resulting from ingestion, within the limits of practicability and feasibility. The Federal standard-setting process considers these factors and an additional economic factor. (proposal at page 19-20)

So, not only is NJ DEP’s risk assessment and science stronger in considering risks to infants, but the NJ Safe Drinking Water law is stronger than federal law.

Which are solid reasons why – for 40 years – NJ has consistently had earlier, broader, and more stringent drinking water (and air, water, soil, pesticide, hazardous waste, chemical plant safety, right to know, pollution prevention, recycling, et al) standards that are far more stringent that federal EPA national minimum.

It is this tradition that Christie and Martin seek to destroy.

But, given the strong public support, they’re trying hard as hell to disguise that, and now even stooping to new lows in attacking DEP scientists.

Those efforts must cease.