Life Imitates Art – Jersey Style

[w/Update below]

I figured my outrage was exhausted, after reading today’s Bergen Record story about corporate blackmail by polluters who poisoned the Passaic River (and NY Harbor) with dioxin.

Corporate polluter Tierra is suing local governments in order to pressure DEP and the NJ Attorney General’s Office to stand down on their lawsuit seeking to recover hundreds of millions of dollars in damages, – click on an see:

Taxpayers on the hook? Big legal bills ahead in fight over blame for pollution

Officials from towns caught in a costly lawsuit that claims they’re responsible for polluting the lower Passaic River say it’s unfair that taxpayers will have to foot the growing legal bill.

But a spokesman for Tierra Solutions Inc., which in February 2009 sued more than 70 towns and cities — including Paterson, Hackensack, Newark and Clifton — said the company never wanted the court battle and blames the state for suing it in the first place.

But then I came across this BP scheme to buy scientists – and yes, I do consider corporations seeking to buy scientists and supress science as worse than blackmail:

Watch it and Check it out: BP tries to Buy Gulf Coast Scientists

And yes, similar things are happening here, but more subtly and behind the scenes inside DEP and other high places in Trenton.

[Update: The corporate abuses never seem to end – looks like BP is extorting liability waivers in exchange for compensation checks, exactly the OPPOSITE of what Obama pledged – Let’s go to the video tape: President Obama Claimed Escrow Fund From BP Would Not ‘Supersede’ Rights to Present Claims in Court, Feinberg Says It Will

Someone needs to ask President Obama why Ken Feinberg is directly contradicting him on claims against BP and those with claims giving away their right to sue later and being forced to sign a piece of paper with a BP lawyer there to receive a check.

Feinberg is doing nothing but liability damage for BP if everyone has to sign off not to sue to receive a check right now. That is not how this was painted by the Obama administration. I’d like to know where the rest of our media is on this besides Ed Schultz.

Right.

(well at least I found some good news – Star Ledger reports: Atlantic Green Power gets land use approval for 14.4 megawatt solar farm)

[Update – to illustrate how poor the DEP management is, check out the email below to all DEP employees from the Deputy Commissioner – a top down edict notifying them AFTER THE FACT about the “new vision” and “transformation” plans that Martin announced – apparently with no staff input – in a late Friday afternoon press release]

Last week, we broke the story that the Food and Drug Administration has threatened to shut down NJ’s $1 billion shellfish industry because the State lacks adequate monitoring and inspection staff to assure that the food supply is safe. It has gotten lots of play – for mainstream media reports, see this and this and this):

Wolfe: If this is not a core public health and DEP responsibility, I don’t know what is. I mean, we’re approaching third world country conditions if you can’t come to consensus that you’re going to protect the food supply [WHYY radio]

But, at the same time that DEP science, monitoring, and inspection staff are decimated, have you seen all the new boxes and management slots on the DEP Org Chart? – high level and reporting to Commissioner Martin – click here and take a look.

The new bureaucratic boxes and new patronage management slots include these:

Chief Advisor [clarification – former Chief Counsel remains as Deputy, this this is an additional position]

Economic Analysis

Information Resource Management (pre-existing function, but transfered for political control under new Deputy Commissioner)

Office of Dispute Resolution

One Stop Permitting (pre-existing office, but transfered for political control under new Deputy Commissioner)

Emergency Management (ditto)

Deputy Chief of Staff

New Assistant Commissioner for Economic Growth and Green Energy

Green Energy Development (position is vacant, guess that’s some priority!)

Economic Growth Coordination

Not obvious from the org chart –  but very important – is the fact that while creating and elevating political functions like economic development and dispute resolution to the Commissioner’s Office, Martin has bureaucratically buried far more important priorities – a move that almost seems designed to make DEP fail:

1) Martin [eliminated] relegated the Office of Policy and Planning, the only place in DEP designed to coordinate and integrate programs (also called “silos”) across the entire Department, to Land Use permitting [full disclosure: I worked in that Office from 2002 – 2004].

2) Similarly, Martin buried the Office of Climate Change under air permitting. That Office is responsible for developing plans, policies, and regulations to implement NJ’s Global Warming Response Act to meet legislated greenhouse gas reduction goals. It can not accomplish those goals under air permitting management; and

3) Martin failed to honor Candidate Christie’s pledge to restore the Division of Science and Research and enhance its capabilities. The former DSR is a shadow of its former self, dismantled and scientists scattered in various permit programs, the last place a scientist should work, as permit “priorities” always trump science. Martin hasn’t even charged his own controversial new Science Advisory Board. These mis-steps expose the fact that Martin has no plan for DEP science, which is in complete disarray and is literally unraveling, after 25 years of excellence.

One example of this mismanagement and poor resource allocation: due to lack of adequate funds for DEP inspection and monitoring staff, NJ’s $790 million shellfish industry is threatened by a federal shutdown, while consumers lose confidence in the safety of eating NJ shellfish, which has to depress demand and hurt producers.

Here are our thoughts, what are yours?

“The state hiring moratorium is complicating its efforts to counteract attrition in marine patrols and inspections. Nonetheless, DEP is now undergoing a reorganization (termed a “Transformation”) which entails several promotions and new high-paying slots in the Commissioner’s office, including a senior advisor for Economic Growth Coordination.

“We do not need more suits in Trenton. We need more marine patrol officers and inspectors if we want to keep New Jersey shellfish on consumers’ tables,”

[Update – and to illustrate how poor the DEP management is, check out this email to all DEP employees from the Deputy Commissioner – notifying them AFTER THE FACT about the “new vision” and “transformation” plans that Martin announced – apparently with no staff input – in a late Friday afternoon press release (Friday 5 pm is where news stories go to be buried)

—– Original Message —–
From: “Irene Kropp” <Irene.Kropp@dep.state.nj.us>
To:
Sent: Friday, July 16, 2010 9:32 AM
Subject: Transformation

> This week Commissioner and I presented our new vision document, priorities
> and plans for transformation to DEP managers.  We are now inviting all
> staff within the DEP to participate in the Vision and Transformational
> Change discussion and share your thoughts as you will all play a critical
> role in the success of the transformation process.
>
> I am committed to conducting sufficient sessions for all of you to
> participate. The first round of presentation sessions are listed below.
> We will be holding most sessions in Trenton but will also present in
> Pequest (for any employees working or living in the northern locations),
> Batsto (for those in southern locations) and Allaire State Park (for the
> Monmouth and Ocean locations).
>
> The schedule is as follows:
>
> DEP Public Hearing Room, Trenton
> Tuesday July 20  8:00-10:00 AM or  3:00-5:00 PM
> Friday July 30   8:00-10:00 AM or   10:30-12:30 PM
> Weds August 11  8:00-10:00 AM or  10:30-12:30 PM or 2:00-4:00
> Friday August 13  8:00-10:00 AM or  1:30-3:30 PM
>
> Pequest
> Tuesday August 10   8:30-10:15 AM or 10:30-12:15 PM or 1:30-3:15 PM
> (directions at http://www.state.nj.us/dep/fgw/peqdirct.htm )
>
> Allaire State Park (Snack Bar area)
> Monday August 16 8:30-10:15 AM or 10:30-12:15 PM or 1:30-3:15 PM
> (directions at
http://www.state.nj.us/dep/parksandforests/parks/allaire.html )
>
> Batsto Auditorium at Wharton State Forest
> Thursday August 19   10:30-12:15 or 1:30-3:15

Hal Bozarth, lobbyist for NJ Chemistry Council, pleads for liability relief before Senate Environment Committee (July 15, 2010)

[here’s a concrete example of some of that huge liability – ABC News: Pollution Problems Linked To Bayway Refinery

Update 7/20/10 – read NJ Spotlight story: Against Backdrop of Gulf Oil Spill, State Senate Looks to Boost Liability to $1 Billion – end updates]

There was extraordinarily significant and controversial testimony in Trenton on Thursday, as oil and chemical industry lobbyists desperately scrambled to beat back proposed bi-partisan legislation to increase their liability from the currently capped value of $50 million to $1 billion (click to read the bill, S2108 Smith (D-Midddlesex)/Bateman (R-Somerset).

The move by NJ legislators parallels a federal effort that has gotten much attention:

Senate panel removes spill liability cap; passes Menendez bill

WASHINGTON, DC, July 1 — The US Senate Environment and Public Works Committee passed Sen. Robert Menendez’ (D-NJ) bill to increase the offshore oil spill liability limit, with an amendment proposed by chairwoman Barbara Boxer (D-Calif.) to eliminate the liability cap for a party deemed responsible for an offshore spill.

“The catastrophe in the Gulf of Mexico makes it clear that the companies responsible must be held fully accountable for the damages they cause to the economy and the environment,” Boxer said following the voice vote.

Menendez’ original bill, S. 3305, would have raised the liability limit established under the 1990 Oil Pollution Act to $10 billion from $75 million. The amended measure now heads to the full Senate.

Yet remarkably, there was absolutely no news coverage of this issue or the Trenton action (see related Star Ledger July 9 editorial Oil minefield poses future risks).

To listen to Jim Benton, head of the NJ Petroleum Council cry crocodile tears, about the “very sad and tragic” Gulf blowout; to watch Hal Bozarth of the NJ Chemistry Council squirm, and to hear Committee Chair Bob Smith describe oil industry DC lobbyists opposing the Menendez bill as “forces of evil” – were historical moments well worth the price of admission!

You can listen to the testimony by clicking on this link and going to July 15 Senate Environment Committee hearing link. The testimony on the bill begins at time 30 minutes and runs for about 40 minutes (and don’t miss my testimony, which starts just past time 1 hour, 8 minutes!)

The 1976 NJ Spill Compensation and Control Act has a $50 million liability cap that was set 34 years ago. Obviously, regardless of the Gulf blowout, that paltry cap needs to increase or, better yet be eliminated, in light of new knowledge about oil and chemical industry facility risks and current economic conditions.

Aside from the Gulf blowout, since then, there have been major chemical and oil accidents and spills in NJ whose cleanup costs alone exceed the $50 million cap.

Those cleanup costs do NOT include huge costs for restoration and compensation for natural resource damages, replacement of public water supplies, the costs of treating water supplies that have been poisoned, or foregone economic development opportunities.

These costs typically exceed cleanup costs, sometimes by orders of magnitude – and are often paid for by local property taxpayers, particularity for municipal water systems.

The cleanup costs also do not include the costs of property value diminution, as existing real estate values are greatly reduced by pollution (think of vapor intrusion in Pompton Lakes NJ), and new development potential and economic opportunities are constrained by polluted land and/or condemned by polluted groundwater and lack of available clean water supplies needed to serve new development.

In addition, since 1976 when the $50 million cap was enacted, we have seen catastrophic chemical accidents, like Bhopal India, where thousands of people were killed as a result of a toxic chemical release.

According to US EPA, NJ has at least 15 chemical plants where an accidental release of extraordinarily hazardous chemicals could KILL over 100,000 people living nearby.

This is known euphemistically in the regulatory jargon as “off site consequence analysis”. Maps show the death zone around scores of NJ facilities.  Not surprising, the maps of these “kill zones” are not disclosed to residents living in those death zone neighborhoods under a sham secrecy concern about terrorism.

As a ballpark measure to gauge the magnitude of that kind of lethal liability, consider the fact that airline liability typically exceeds $1 million per person killed in plane cashes. At $1 million per person killed by a chemical accident, that would amount to  a $100 BILLION liability for fatalities alone, an amount  far short of the proposed $1 billion cap.

And this liability, while huge, does not consider all the real estate liability (how much would any impacted property be worth after a fatal chemical accident?). Evacuation of the death zone would trigger billions of additional liability (just think of a Bhopal, Times Beach, Missouri; Love Canal, NY; or Libby Montana in North Jersey and do the math).

According to sponsors, the Senate bill is intended to assure that NJ’s interests are protected in the remote and unlikely event that Gulf oil tarballs hit NJ beaches. The bill also might discourage off shore oil and gas drilling that might impact the NJ shore.

But far more significant and probable risks were discussed in testimony, from over 300 NJ based refineries, chemical plants, pipelines, and storage tanks.

In addition, for the first time, the issue of inadequate resources in the NJ Spill Fund and the need for an increase in the oil/chemical industry surcharge was broached – this too parallels a major national policy debate in Congress where NJ Senators Lautenberg and Menendez are leading the fight to reauthorize the federal Superfund tax. (see Star Ledger July 8 editorial “It’s time to reinstate the Superfund Tax“)

Many recognize that the federal Superfund progtram is broke and as a result sites are not being cleaned up. But few realize that NJ faces the same problem at the state level. The NJ Spill Fund surcharge has not been increased in many years and there is a huge deficit in terms of cleanup need.

At the oil/chemical industry lobbyists’ urging, the Committee amended the bill to apply only to off shore risks –

Senator Jennifer Beck (R-Monmouth) – works to narrow liability bill, as sought by oil and chemical industry lobbyists

I am shocked to report that Senator Beck (R-Monmouth) was carrying the water of the oil and chemcial industries. She effectively blocked release of the broader introduced version of the bill that would have applied to NJ land based facilities. Those land based facilities actually pose far greater risks than threats from NJ offshore operations (there are no offshore operations! Proposed oil/gas exploratory drilling off he Virginia shore is purely hypothetical, as are the low probability of gulf impacts). Plus, whatever happens on the land in NJ ends up in the ocean! Fundamental ecological principles: all things are inter-related!

The Committee is seeking input to quantify these risks for the next hearing, on August 23  – we urge citizens out there to weigh in with the Committee on this issue and assure that NJ’s interests – not the profits of the oil and chemical industries – are fully protected.

We will be following this issue closely and will soon post details on NJ based risks.

By Invitation Only – Privatization Run Amok

Last year, Governor Corzine signed legislation that privatized NJ’s Toxic Site Cleanup Program. That new law placed control of the “cleanup” of over 18,000 toxic sites throughout NJ in the hands of  industry consultants under what is known as the Licensed Site Professionals (LSP) program.

DEP is NOW developing final regulations to implement that law. Polluters opposed DEP interim regulations, which were adopted without any public comment. Interim rules were adopted under an expedited provision in the law designed to give DEP control over the technical content of the program. DEP control over the cleanup program regulations was intended to assure program integrity and compensate for the fact that the LSP law surrendered direct DEP oversight of cleanups.

Now that polluters have gotten the law privatized, they are pressuring DEP to gut the regulations – and the Christie DEP is playing right along with them.

We have written extensively about obvious fatal flaws in the DEP and LSP programs (for examples, see this and this and this and this).

For all you need to know about the values, ethics of DEP Managers who run the LSP program, and policy priorities that informed the design of that program, read this NY Times story: Memo Shows Agency Knew of Danger in Child Care Building and this more recent blog post: “According to DEP: Real Estate Value Trump Public Right To Know About Nearby Toxic  Sites”

We predict that environmental, health, and financial disasters are now in the works, as LSP private consultants with huge economic conflicts of interest cut corners and sacrifice public health for private corporate bottom line profits. LSP’s will have very strong incentives to cut costs in order to maintain clients and market their firms as consultants that represent industry interests – which are to minimize cleanup costs and maximize profits.

But now, DEP has gone even beyond the legislature with promotion of privatization at the expense and exclusion of public interests.

Despite the need for MORE public involvement to oversee the privatized toxic site cleanup program, amazingly, DEP has now privatized the process for developing regulations, standards, and scientific protocols to implement the new privatized program.

DEP has formed several committees to write the new LSP toxic site cleanup program requirements. These committees are composed exclusively, (as far as we know, because members and those invited have not been disclosed by DEP), of private consultants, polluters, and industry lobbyists. There are no public meetings scheduled.

Perhaps worse, those meetings are by invitation only and closed to the public and the press! So they will do their dirty business in the dark – so much for Governor Christie’s Inaugural Day promise of a “new era of accountability and transparency”!

The private consultants are now writing the technical requirements for the private program – that’s the fox designing the hen-house, building it, hiring the guards and not letting the hen-house owner even know about any of it! (with a fig leaf of web “transparency“)

Here are the essential public health and environmental protections now being written for that program –

Site Remediation Steering Committee Meeting: Invitation only
July 21, 2010, 9:00 a.m. – 12 Noon
August 18, 2010, 9:00 a.m. – 12 Noon
September 15, 2010, 9:00 a.m. – 12 Noon
October 20, 2010, 9:00 a.m. – 12 Noon
November 17, 2010, 9:00 a.m. – 12 Noon
December 15, 2010, 9:00 a.m. – 12 Noon

Near-Term Priorities Committee: Invitation only
July 13, 2010, 9:00 a.m. – 12 Noon.  Meeting is usually scheduled one month ahead.

Measures of Success Committee: Invitation only
July 20, 2010, 9:00 a.m. -12:00 Noon
August 17, 2010, 9:00 a.m. -12:00 Noon
September 21, 2010, 9:00 a.m. -12:00 Noon
October 19, 2010, 9:00 a.m. – 12:00 Noon
November 16, 2010, 9:00 a.m. – 12:00 Noon
December 21, 2010, 9:00 a.m. – 12:00 Noon

Technical Guidance Committees: Invitation only

• Presumptive Remedies, June 21, 2010, 10:00 a.m. – 12:00 Noon
• Ecological Evaluation, June 23, 2010, 1:30 – 3:30 p.m.
• Vapor Intrusion, June 24, 2010, 2:00 – 4:00 p.m.
• Alternate/Clean Fill, June 28, 2010, 10:30 a.m. – 12:30 p.m.
• Compliance/Attainment, June 30, 2010, 9:30 – 11:30 a.m.
• Natural Remediation, June 30, 2010, 1:00 – 3:00 p.m.
• Conceptual Site Model, July 14, 2010, 1:00 – 3:00 p.m.

Technical Regulations Committee: Invitation only
June 29, 2010, 8:30 -10:30 a.m.
July 28, 2010, 8:30 – 10:30 a.m.
August 20, 2010, 9:00 – 11:00 a.m.
September 23, 2010, 2:30 – 4:30 p.m.
October 20, 2010, 1:00 – 3:00 p.m.
November 15, 2010, 1:00 – 3:00 p.m.
December 13, 2010, 1:00 – 3:00 p.m.

Unprecedented – totally outrageous – and completely unacceptable. (even WORSE than my state police escort out of a recent DEP meeting, and that was a disgrace).

We urge the Legislators who sponsored and approved the LSP law to contact Commissioner Martin and demand that these meetings be open to the public and that environmental and public health interests are fully represented.

Financial and technical assistance should be provided to public interest group representation, as those groups lack resources and expertise to effectively participate, and are no match for industry hired guns.

Letting the polluters design the regulatory requirements – including DEP oversight and public involvement – for a privatized toxic site cleanup program is a formula for certain disaster.

Here’s my letter requesting legislative oversight:

[Update 2 – 7/18/10 – Philly Inquirer editorial gets it: This road looks familiar]

Update 1 : Now that DEP lease/easement valuation and State Parks privatization policy (see Asbury Park Press editorial: (Move Cautiously on Privatization) are on the radar, I hope folks don’t forget this history – incuding the law signed by Corzine that requires that DEP:

(2) conduct a re-appraisal of the rents and fees charged for all
residences and other buildings and structures, and for utility
easements and right-of-ways, located on State park or forest lands
to ensure they reflect current fair market values and will continue to
do so;

That law also mandated a Report be submitted to the Legislature by July 2009 – we’ll take some credit for working to pass that law (see: Heads Should Roll for This“, and with not a lot of help from friends who were providing cover for Lisa Jackson. But has anyone ever seen that report?

At the time, DEP Commissioner Jackson dismissed the revenue potential, and was given a pass by those now up in arms over the Tennessee pipeline deal, when she testified:

3. April 2006: The Department was asked and provided written response to legislative questions on the FY 2006-2007 budget on leases and concessions revenues, specifically in response to Question #10 (page 17)

“Have any leases been renegotiated or back rent collected during the past year, and if so, how much more revenue is anticipated as a result of these actions in FY 2006 and FY 2007?”

DEP response to that question concluded:

“… we do not foresee the collection of back rent and the renegotiation of existing leases generating “millions” of dollars of revenue for the state.”
http://www.njleg.state.nj.us/legislativepub/budget2007/DeptResponse/EvnProtection%20responses.pdf

end update

This outstanding essay by Columbia economics professor Moshe Adler ran yesterday in Truthdig.com – I am reprinting it in whole without permission. I doubt that Bob Scheer of Truthdig or the author would sue me.

Possible Cause of Death: Privatization

AP/Gregory Bull

By Moshe AdlerWhen a branch fell from a tree at the Central Park Zoo in New York City last month, killing a 6-month-old baby and severely injuring her mother, who had been holding the infant, Mayor Michael Bloomberg declared it “an act of God.” But in all likelihood it was the act of a mayor.

The Central Park Zoo is public, but its management has been contracted out. Surely the mayor should be familiar with the repeated failures of contracting out in New York City over the past two centuries. The City Council ordered an investigation of these failures in 1825, and the investigation concluded: “The contracting system has not given satisfaction to the public.  In 1826, a follow-up committee decreed that contracting out should be discarded and explained why: “Private interest is too frequently at variance with public convenience and therefore ought to be abandoned.

The problems are the same now as they were then: Contracting out diminishes the level of know-how of the government on the one hand, and contractors save money by cutting corners on the other.

The rationale for contracting out is always the same: cost cutting. The taxpayer will save money, it is argued, because the workers of private contractors get lower wages and fewer benefits than city employees get, and because the workers of these contractors have no protections against arbitrary dismissals. But there is no reason why a contractor who cuts his costs by paying low wages will stop there. When the client is the public, nobody really owns the store and supervision is inevitably lax. It is too easy for the contractor to cut costs by cutting corners under such conditions.

Public concerns about the problems with contracting out are often allayed by the depiction of the contractor as worthy; indeed the contractor for the Central Park Zoo is the august-sounding Wildlife Conservation Society, founded in 1895. But a contractor cannot defy the rationale for its contract in the first place, and in order to bring its costs down, the Wildlife Conservation Society did not hire its own workers to prune the trees, but instead hired a subcontractor.

City officials told The New York Times that the tree in question had been pruned twice since December. But pruning requires expertise and is time-consuming. Different trees must be pruned at different seasons, and random pruning of branches is counterproductive: Branches should be examined one by one to identify those with weak attachments to the stem that should be removed (with cuts that do not harm the tree) and those that should be maintained because they are essential for the tree’s well-being. The U.S. Forest Service recommends that pruning be done by professional arborists, and it provides consumers with information that they should use in order to determine the competency of the arborist they hire. Were the workers of the subcontractor competent professional arborists? The New York Times apparently did not ask this question. But it is precisely because tree maintenance requires expertise and great diligence that the responsibility for it should lie within the city, and that the person responding to reporters questions should be a city arborist. Initially, city officials did not even know exactly who was in charge of maintaining the tree.

When asked about the role of contracting out in the baby’s death, Mayor Bloomberg responded that “the city can’t do everything.” But who in the New York metropolitan area owns more trees and who has owned them over a longer time than the city? The city government is the most fitting keeper of its trees, yet even within Central Park the responsibilities for trees is not only privatized but also fragmented: The zoo is entirely within Central Park, yet, despite the ambiguity it appears that the zoo’s trees are the responsibility of the private Wildlife Conservation Society while the trees in the rest of the park are the responsibility of the private Central Park Conservancy. Regardless of the official lines of responsibility, each private organization makes its own decisions about how to maintain the trees and each is trying to do so on the cheap. With no continuity of service and no centralization, knowledge and expertise cannot be developed. On a sunny, calm summer day branches do not simply fall off properly maintained trees, but to defend privatization the mayor would have us believe in the supernatural.

Why do public employees provide better public services than those provided by private contractors? Are they more scrupulous? Like employees in any other type of work, most public employees deliver a good job for fair pay and think nothing of it. And like employees in any other type of work, some public employees game the system. The problem with contracting out, and the reason it so frequently fails, is that it gives an advantage to the unscrupulous minority. The body that awards the contract is not a private party acting on its own behalf but officials acting on behalf of the public, and the level of vigilance is not the same as that which occurs between private parties. As a result, the contractor who has no compunctions about cutting corners is more likely to get the contract both because his price is lower and because he can afford to spend more money lobbying for the contract.

Contracting has been known to fail for 200 years now, yet Bloomberg insists on continuing the practice. In April, he appointed Stephen Goldsmith, a former mayor of Indianapolis known as a preacher of privatization, as deputy mayor. The death of an infant is too high a price to pay for an ideological commitment to privatization. Enough is enough.

Moshe Adler teaches economics at Columbia University and at the Harry Van Arsdale Center for Labor Studies at Empire State College. His book “Economics for the Rest of Us: Debunking the Science That Makes Life Dismal” (The New Press) won a 2010 IPPY (Independent Publisher Book Awards) Gold Medal.