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Corzine Clean Air Proposal Survives Christie Red Tape Review and Cost Benefit Tests

[Update: I'd like to clarify an important point I left implicit in the initial post. In a March 8, 2010 post, I posed the question:

So what’s it going to be?

Will DEP be allowed to adopt the science based rule they proposed mandating reductions to 500 ppm by 2014 and 15 ppm by 2016?

Or will oil industry lobbying of the Regulatory Czar Guadagno block all or part of the DEP proposal?

Dena Mottolla of Environment NJ and I attended and spoke forcefully at the "Stakeholders meeting" on these rules. By attending the meeting, offering up policy and political arguments in support of the rule,  and writing  about the oil industry lobbying threat (which no mainstream media outlets did), we like to think we helped get the word out, galvanize public opposition, and stiffen the spine of DEP Commissioner Martin. This is what sound advocacy backed by accountability can accomplish. Kudos also to Environment NJ for their organizing effort]. 

DEP Commissioner Bob Martin announced today that DEP adopted last year’s Corzine administration proposal to lower the sulfur content of fuel oil.

The rules are an important component of NJ’s clean air strategy. They were supported by US EPA and environmental groups, and were strongly opposed by the oil industry.

The proposal was frozen by Governor Christie’s Executive Order #1 90 day regulatory moratorium, reviewed by the Red Tape Review Group, and subject to a “Stakeholder review”, new cost benefit analysis, and other so called “common sense regulatory principles” mandated under Executive Order #2.

The move bolsters Martin’s independence from Lt. Governor Guadagno, who could have blocked the proposal.

Adoption of the rule as proposed also validates DEP’s professionals, who proposed a science based rule whose public health benefits far exceeded industry compliance costs.

The adoption extinguishes a threat to the rule, which I wrote about on March 8 during the moratorium, in: ”Oil Industry Seeks Clean Air Rollback Under Christie Moratorium:

Today, DEP held a “stakeholders meeting” to discuss another important clean air rule blocked by the moratorium. Keeping with the war metaphor, lets call this one subject to extraordinary rendition to a black site somewhere in the Lt. Gov.’s Office.

This particular clean air rule applies to fuel oil and has been under development for over 5 years. It is part of a regional air pollution control strategy endorsed by 11 northeastern and mid-Atlantic states. DEP amended its EPA approved “State Implementation Plan” (SIP) required under the federal Clean Air Act to incorporate this strategy and set of rules back on June 16, 2008. After much delay, on November 16, 2009, DEP finally proposed new rules that would mandate steep reductions in the concentration of sulfur in fuel oil sold in NJ.

 

Jim Benton, NJ Petroleum Council – opposed “phase II” 2016 reductions to 15 ppm 

So the oil industry has known this is coming for a long time.

Those fuel oil content reductions are required to reduce air pollution emissions to meet health based standards set under the federal Clean Air Act (see: 40 CFR 51.1002(c)(1).) Those national air quality standards were required to be met by NJ in 2010. There is no debate that the DEP proposal is technologically feasible to meet. In fact, there is pending legislation (A1054 (McKeon)/S1414 (Smith) that would mandate steeper and quicker reductions than those sought by DEP, by imposing the 15 ppm standard by 2011. The DEP rule proposal would mandate a 67% reduction in allowable sulfur, to 500 parts per million by the year 2014, and a sharper 99% reduction to 15 ppm by 2016. The proposal would have dramatic public health benefits, including reducing mortality (i.e. death).

But, not so fast. Huge Oil industry profits are at stake.

 

Dan Horton (L) Exxon Mobil and Renee Jones (R) Conoco Phillips, oppose DEP rules 

To the applause of lobbyists for oil giants Exxon-Mobil, Hess, Conoco Phillips, and backed by cheer-leading of lobbyists for the American Petroleum Institute and the NJ Petroleum Council, the Christie moratorium has thrown a monkey-wrench into the process, disrupting years of work across the mid-Atlantic and New England region.

Despite multi-billion record profits in the oil industry, these giant corporate polluters don’t want to spend money to reduce the death rate their products cause in NJ.

The public health stakes are huge – thus the inflammatory but accurate headline. But there really are lives at stake. Here’s why DEP is requiring that sulfur be reduced: (see page 18-20 of the DEP proposal)

The health effects associated with exposure to fine particles are significant, mainly due to the fact that particles of this size can easily reach into the deepest regions of the lungs.

Significant health effects associated with fine particles exposure include:
• Premature mortality;
• Aggravation of respiratory and cardiovascular disease;
• Decreased lung function and difficulty breathing;
• Asthma attacks; and
• Serious cardiovascular problems, such as heart attacks and cardiac arrhythmia.

The USEPA estimated that attainment of the 1997 annual and daily fine particles standards nationally would prolong tens of thousands of lives each year and prevent hundreds of thousands of hospital admissions, doctor visits, absences from work and school, and respiratory illnesses in children. Individuals particularly sensitive to fine particles exposure include older adults, people with heart and lung disease, and children. The elderly have been shown to be particularly at risk for premature death from the effects of particulate matter. Health studies have shown that there is no clear threshold below which adverse effects are not experienced by at least certain segments of the population. Some individuals who are particularly sensitive to fine particles exposure may even be adversely affected by concentrations of fine particles below the revised 2006 annual and daily standards. (72 Fed. Reg. 20586-20587 (April 25, 2007), Clean Air Fine Particle Implementation Rule) The USEPA is currently reconsidering those standards based on recommendations of its Clean Air Scientific Advisory Committee (CASAC).

According to the most recent Federal and State estimates, 765,125 New Jersey residents have asthma. In 2004, asthma sufferers in New Jersey accounted for 15,679 hospitalizations, which represents approximately one out of every 50 hospitalizations. Of these asthma hospitalizations, 5,175, or about one-third, were children. There were 1,838 deaths due to asthma between 1989 and 2003 in New Jersey. The risk of death from asthma increases considerably with age, with the over-65 population having the highest rates. (see: Asthma in New Jersey Annual Update 2006. New Jersey Department of Health and Senior Services, August 2006 (click on this for document)

SO2 causes a wide variety of health and environmental impacts because of the way it  reacts with other substances in the air. SO2 reacts with other chemicals in the air to form fine sulfate particles. When these are breathed, they gather in the lungs and are associated with increased respiratory symptoms and disease, difficulty in breathing, and premature death. Peak levels of SO2 in the air can cause temporary breathing difficulty for people with asthma who are active outdoors. Longer-term exposures to high levels of SO2 gas and particles cause respiratory illness and aggravate existing heart disease. (Sulfur Dioxide: Health and Environmental Impacts of SO2/Six Common Pollutants/Air & Radiation/USEPA. (click on this for document).

Increased ozone concentrations severely affect the quality of life for susceptible populations – children, the elderly, and asthmatics – and present health risks for everyone. Exposure to ozone for several hours at relatively low concentrations significantly reduces lung function and induces respiratory inflammation in normal, healthy people during exercise. This decrease in lung function is generally accompanied by symptoms such as chest pain, coughing, sneezing, and pulmonary congestion. (The Green Book Nonattainment Areas for Criteria Pollutants, United States Environmental Protection Agency, as updated August 17, 2007. Click on this for document)

NOx, as a precursor for both fine particles and ozone, will contribute to the health impacts associated with both fine particles and ozone. Ozone exposure can cause several health effects, including irritation of lungs. This can make the lungs more vulnerable to diseases such as pneumonia and bronchitis, increase incidents of asthma and susceptibility to respiratory infections, reduce lung function, reduce an individual’s ability to exercise and aggravate chronic lung diseases.

In addition to these incredible public health benefits, even the cost benefit analysis on the rule documented HUGE net economic benefits, due mainly to all the avoided costs of health care.

Al Mannato (L), American Petroleum Institute. Jim Benton (R), NJ Petroleum Council. Oil men. The Oil industry called in the big guns. 

So what’s it going to be?

Will DEP be allowed to adopt the science based rule they proposed mandating reductions to 500 ppm by 2014 and 15 ppm by 2016?

Or will oil industry lobbying of the Regulatory Czar Guadagno block all or part of the DEP proposal?

The ball is in Regulatory Czar Guadagno – and ultimately Governor Christie’s – court

To paraphrase DEP air quality experts: “If this rule proposal doesn’t pass muster under the Governor’s Executive Order review process, none will”

 

Bill O’Sullivan, DEP Air Quality Manager. Let’s hope Bill can hold the line against high powered oil industry attack and industry friends in the Governor’s Office. 

 

Commissioner Martin reverses direction: rejects cost arguments and follows science

Reversing the direction of several prior decisions to forego drinking water protections based on: 1) cost ; 2) attacks on DEP science;  and 3) promotion of economic development, DEP Commissioner Bob Martin listened to DEP professionals and environmental groups. Yesterday Martin announced that he denied a petition by local sewer authorities to relax current surface water quality standards designed to protect drinking water supplies. (see also: “Drinking Water Risks Rise – While DEP Ignores Science“)

We broke this story On Aug. 9 with “Sewer Plants Put Drinking Water At Risk – Yet Local Authorities Pressure DEP To Gut Rules“. The sub-headline to that post was this:

DEP: “The nitrate criterion is intended to protect infants from a potentially fatal blood disorder called methemoglobinemia or “blue baby syndrome.”

In these Red Tape regulatory rollback days, victory is just holding the line on current protections. So we’ll declare victory, and thank Abbie Fair at ANJEC and Susan Kraham from Columbia Law School  for an excellent job in catching and responding to this petition.

Jim O’Neill of the Bergen Record wrote a good story about that today (see: DEP denies request to ease water treatment rules). Here’s the money quote from that story, literally echoing our sub-headline:

[DEP Commisioner Martin] noted that infants who drink water containing nitrate above the maximum level allowed under federal and state drinking water rules — 10 milligrams per liter — “could be come seriously ill and, if untreated, may die.” [My Note To Bob: new science suggests adverse health effects, including cancer, far below the current 10 mg/L standard, see this  EPA Federal Register notice discussed below.] 

But from the outset, the sewer authority petition was a non-starter.

Aside from putting drinking water at risk from additional pollution, it blatantly violated both state and federal Clean Water Acts. It would have been blocked by US EPA even if DEP did approve it.

Which leads to the question: what possibly could have motivated the sewer authorities to even file it?

Did someone at a political level in the Christie Administration give a green light to this idea?

Or did AEA try to jump on the Red Tape Rollback Wagon and get a piece of the Christie Executive Order #2 cost/benefit regulatory relief?

I would love to know the inside story on that. Would any AEA whistelblowers like to annonymously step forward?

Politics aside, the issues of nitrates and unregulated chemicals – such as pharmaceuticals - entering our water supply are very serious public health and ecological concerns.

Ironically, the AEA petition came just as the drought emerged. That was amazing timing, because the media and people think of drought only in terms of water quantity. But, the AEA petition has shown a bright light on the water quality aspects of drought, because river water has become too polluted to use to refill reservoirs.

Perhaps the realization will sink in the NJ drinking water systems take partially treated wastewater from sewage treatment plants and industrial discharges to the river and use that same water for drinking water supply.

So, now that the press, the public, and DEP Commissioner Martin have become aware of the problem, will there be renewed efforts to enforce and strengthen current surface water quality standards, develop new drinking water standards or treatment requirements for scores of unregulated chemicals that poison water supplies and pollute ecosystems, and ratchet down on pollution discharges?

If so, we have a long list of serious problems and needed reforms to strengthen protections, enforce existing standards, and close loopholes. (see this for some)

Will Commissioner Martin seize this moment to move forward on a clean water agenda, instead of continuing the current rollback policy?

We’ll keep you posted.

[Update: I didn’t want to fail to note this little bit of revisionism by the polluters.

The AEA petition was not based on the anticipated ratchet down on the current 10 mg/L nitrate standard. New scientific  evidence suggests that the current standard is not protective of public health or ecological concerns. AEA has been resisting that science for years and dragging their feet in upgrading pollution controls.

In fact, just the opposite: The AEA move was designed to preempt that ratchet down and dodge new pollution control treatment requirements. It was not designed to open any dialog about them.

In fact, I recently wrote about both new science on human health risks and EPA drinking water MCL’s and ecological concerns. I discussed these issues at length with reporters. So I found this ending quote from the Bergen Record story extremely ironic:

Given recent studies cited by the federal Environmental Protection Agency that indicate nitrate is probably carcinogenic to humans, sewerage authorities are expecting nitrate cleanup standards to become tighter down the road and were hoping to start a dialogue with the DEP about easing restrictions in cases where the agency discharges into a stream not used for drinking water, Gulbinsky said.

If Gulbinsky said that, she is lying - the AEA petition was specifically targeted at streams and rivers that are currently used for water supply. It targeted the water supply intakes as an alternative point of compliance!

You Unlock This Door With the Key of Imagination – Beyond It Is Another Dimension – You’ve Just Crossed Over Into The Legislative Zone!

The Assembly Environment and Solid Waste Committee heard testimony today regarding State mandates imposed upon local entities.

It was a 4 hour marathon (you can listen to testimony here, although having endured it all and been given the distinct high privilege and honor of being chosen as the last person to testify, I wouldn’t recommend doing so.)

Let me summarize by saying I heard more absurd and flat out jaw dropping stupid statements in one day, than virtually my entire 25 year Trenton career.

I leave you with my own indecision about what was worse: the NJ Health Officer’s Association opposition to new lower child blood lead rules; or Assemblyman Rudder’s quote:

We need a moratorium on great ideas.

I’ll sign off for the nigth and write this thing up tomorrow after I have a chance to reflect and chill.

Getting Warm. Source: Rutgers, State Climatologist Robinson. Presented at DEP drought hearing (8/25/10)

[Update: 9/2/10 - today's Star Ledger story by Maryann Spoto is another example of deep denial. It manages to report on 3 global warming driven phenomena (record heat wave, drought, and hurricane Earl) without ever even mentioning global warming. Now that is hard to do! (but of course, La Nina has gotten attention)]

Update: 8/29/10 – more evidence: “Numbers confirm it: Summer was a scorcher” ]

DEP held a public hearing yesterday on whether to expand the current drought watch for 5 northeastern counties to a drought warning or emergency.

Those steps would trigger mandatory water conservation and other stronger supervisory measures by DEP to reduce demand and better control the management of public water supplies by private water companies and local utility authorities.

Last week’s heavy rainfall – 3-5 inches in some northeast portions of the state where the reservoirs are –  temporarily helped moderate DEP’s drought indicators. DEP bases drought status on those indicators, and professional judgement.

The indicators are incomplete and misleading. They need to be revised to address underlying drought causes and be better suited to design and evaluate management measures.

Steve Doughty (L), NJDEP stays on script - State Climatologist Robinson (R) ducks tough issues.

The “million dollar rainfall”  (per State Climatologist Robinson) did absolutely nothing to change the underlying systemic, or structural, drought conditions that have result in repeated cycles of droughts and floods.

Those conditions primarily relate to:1) hydrology (e.g. rainfall, temperature, land use/land cover, stream flows, aquifer levels, etc), 2) infrastructure (reservoir storage, distribution infrastructure) and 3) increasing demand.

Each factor in the drought equation is bad and getting worse. I described those conditions in this recent post.

DEP’s official position is “we’re not out of the woods yet”, so let’s wait and see before either rescinding the drought watch or ramping up to a drought warning.

But DEP will sit on the sidelines and do nothing as private water company United Water meets with political officials in Bergen County to discuss lifting the mandatory water conservation measures imposed in Bergen County  - a perfect illustration of exactly who is in control of NJ’s public water supplies.

Neither DEP, State Climatologist Robinson, or water purveyors were willing to talk about the underlying causes of structural drought or the need to adapt to global warming or the need to improve pollution controls and water quality. In fact, they intentionally avoided those topics – Steve Doughty, by his own words,  drifted “off script” only once, and it related to Passaic/Pompton/Ramapo water quality and pumping to Wanaque reservoir. He quickly caught himself, and got back “on script”. So, the hearing was totally useless as far as I’m concerned.

Given that DEP is a regulatory agency, I testified and added the following issues to the list of issues DEP refuses to discuss in public:

1. DEP needs to publish data on water demand. As they say in business, “what gets measured gets done”.  The public has a right to know how water is used, who is using it, what they are using it for, and where the uses occur (e.g. urban, suburban, rural) . DEP needs this data to manage water supply. It also would be a good benchmark to compare how various water companies were performing.

2. DEP needs to exert more regulatory control over private sector and local water purveyors. Right now, first come first serve anarchy prevails.

3. Infrastrucure needs assessment must be part of the discussion. I highlighted this week’s hearing in  Washington Township (Morris Co.) where the local system loses 40% of water to leaks. Since then, major water lines have broken, leading to boil water alerts and other problems.  NJ’s infrastructure is old and getting older. How will we pay for upgrades?

4. Infrastructure investment needs to be explored – water user rates are regulated by BPU tariffs and DEP regulations. Surcharges need to be considered as a means of generating much needed revenue for investment in maintenance and upgrades.

5. Agricultural uses need to be part of the discussion and must be regulated just like all other users.

6. The current 100,000 gallon per day use threshold for triggering DEP water allocation permitting needs to be reduced. DEP policy and allocation environmental reviews must be done in consideration of cumulative water withdrawals. DEP must develop and impose water budgets and specify whether this needs legislative or regulatory change.

7. What ever happened to the Eco-Flow Goals initiative? That project was supposed to set flow limits for NJ’s streams and rivers to protect aquatic life uses, and things like wetlands and trees and other vegetation.

8. DEP needs to establish a policy to set restrictions on inter-basin transfers by water companies. United Water mentioned ratepayer fairness, but there are significant environmental components to these transfers.

9.  DEP needs to make allocation policy between competing water uses a major part of the public for discussion. This is critical and currently done behind closed doors at DEP, with the water companies and no public interest representation.

10. DEP needs to revise drought indicators - things to consider include global warming driven changes (temperature, rainfall, vegetation) and landscape change (huge change in land use/land cover has altered fundamental underlying hydrology).

And will someone tell DEP staff not to bring bottled water to Public Hearings?

Steve Domber, geologist, NJ Geological Survey

[Update #2 1/12/11 -  - here what it all means - from Dupont Pompton lake mercury sediment cleanup plan:

NJDEP has promulgated soil remediation standards for residential and nonresidential exposure. However, no promulgated soil standards are available for ecological receptors.

NJDEP does not have any promulgated sediment criteria for evaluating potential human exposure or for ecological receptors. For ecological receptors, NJDEP’s 1998 sediment guidance is available to evaluate sediment quality within Baseline Ecological Evaluations as part of implementing the Technical Requirements (N.J.A.C. 7:26E). However, in accordance with the sediment guidance (NJDEP, 1998), these values are not cleanup standards.

Christie has made sure DEP will never have ecological standards for soil or sediments.

Update #1: Governor Christie signed the bill into law on 11/3/10 as P.L. 2010, c. 87. That means that there will be no ecologically based DEP cleanup standards.]

With no debate and under the guise of eliminating “red tape” and “inactive and outdated boards and commissions”, Governor Christie is about to give NJ toxic polluters a major gift they have sought since 1993. (see Star Ledger “coverage”)

The bill, A2851, passed yesterday by the Senate and now on the Governor’s desk, contains a stealth provision buried in the details that would eliminate the “Environmental Advisory Task Force” created in 1993. Here is the provision that would be deleted from current law by the bill:

[The department shall not propose or adopt remediation standards protective of the environment pursuant to this section, except standards for groundwater or surface water, until recommendations are made by the Environment Advisory Task Force created pursuant to section 37 of P.L.1993, c.139.  Until the Environment Advisory Task Force issues its recommendations and the department adopts remediation standards protective of the environment as required by this section, the department shall continue to determine the need for and the application of remediation standards protective of the environment on a case-by-case basis in accordance with the guidance and regulations of the United States Environmental Protection Agency pursuant to the "Comprehensive Environmental Response, Compensation and Liability Act of 1980," 42 U.S.C. s.9601 et seq. and other statutory authorities as applicable.]

The Environmental Advisory Task Force was supposed to develop ecological impact and cleanup standards to protect natural resources and wildlife from toxic pollution from spills and toxic waste sites.

The need for ecological standards and huge cleanup liability are illustrated by the Gulf oil spill, where fisheries, wildlife, and wetland systems have been destroyed by the BP oil spill.

NJ’s wetlands, fish, shellfish, birds, and other wildlife also have suffered from toxic and bioaccumulative chemicals, which have led to consumption advisories, restrictions, and closures of fisheries.

Under the 1993 law known as S-1070, that weakened NJ’s cleanup program, DEP was prohibited from developing ecological based cleanup standards until the Task Force had issued scientific recommendations.

The Task Force was strongly opposed by the chemical industry and for years they were able to block appointments and formation of the Task Force.  As a result, the Task Force never met.

And as a result of that paralysis, DEP has never developed ecological standards. Failure to adopt ecological cleanup standards has forced DEP to conduct site specific reviews, or rely on outdated and inappropriate lax EPA standards that are poorly suited to NJ and beyond NJ’s control.

This has let polluters off the hook for billions of dollars of “natural resource injury” cleanup liability.

Assemblyman Burzichelli (D-Valero, South Jersey)

[Update: the bill was sponsored by Assemblyman Burzichelli, who is working with polluters and engineering environmental rollbacks as chair of the Assembly Regulatory Oversight Committee and member of the Christie Red Tape Review Group. End Update.]

Those historical problems are made far worse by NJ’s new “Licensed Site Professionals” law, which privatized cleanup decisions. LSP’s have little or no expertise in ecological impact analysis. In the absence of DEP ecologically based standards, LSP’s will be free to make cleanup decisions, even without DEP oversight.

Of course, NJ’s stressed ecosystems and wildlife will suffer additional damage, while polluters are left off the hook and LSP’s are unaccountable to any effective DEP oversight (with no standards, it is all a judgement call. Do you trust LSP’s, paid by polluters to minimize cleanup costs, to exercise prudent judgement to protect wildlife and ecosystems?).

Click on this for details and call and write to demand that the Governor conditionally veto the bill to remove this provision:

Ecological Standards ignored for 16 years – polluters dodge billions in liability

[Update: In another gift to toxic polluters that undermines public oversight of how the chemical industry and DEP failed to implement the goals and toxics use reduction requirements of the groundbreaking 1991 “Pollution Prevention Act”, the bill also would eliminate the ”Pollution Prevention Advisory Board”.

Here is the compostion and powers of that Board, which, just like the Environmental Advisory Task Force, was fiercely opposed by the chemical industry and thus was never formed. Note that the PPAB has 3 ENVIRONMENTAL GROUP MEMBERS. What have those groups done to oversee implementation of the PP Act for the last 19 years and why are they not up in arms about this?

[Update: 8/31/10 – for anyone who thought this visual juxtapostion was exagerated: Mosque site burning smacks of Klan action

NYC yesterday August 22, 2010

Sittin’ in the mornin’ sun
I’ll be sittin’ when the evenin’ come
Watching the ships roll in
And then I watch ‘em roll away again, yeah

I’m sittin’ on the dock of the bay
Watching the tide roll away
Ooo, I’m just sittin’ on the dock of the bay
Wastin’ time

Look like nothing’s gonna change
Everything still remains the same
I can’t do what ten people tell me to do
So I guess I’ll remain the same, yes ~~~ Sitting on the Dock of the Bay Otis Redding (1967)

[Update: 8/25/10 - a source just forwarded DEP Bay Science seminar held on July 14. Check it out by clicking here. Look at Professor Kennish's presentation. His Mid Atlantic Lagoon system slide shows 7 ecological  indicators of eutrophication. All are "high" except one, dissolved oxygen, which is "low". Dissolved oxygen is the only indicator DEP uses for surface water quality standards, monitoring, and assessment regulatory purposes. So obviously, DEP is regulating the wrong thing. Then look at the DEP presentation, it gets worse. DEP bacteriological monitoring (fecal coliform) actually says the Bay is improving! (shellfish acres prohibited are improving (despite hardclam landings going to zero) and beach closures). The EPA benthic index shows one isolated local problem. DEP regulatory assessment says Bay OK, despite all the conflicting evidence. DEP refuses to change regulatory standards, monitorign and assessment to account for science. But DEP did change alll those things in 2003 for purposes of enforcing phosphorus load reductions in inland freshwaters. BBay NEP has the science but not the regulatory power. DEP has the regulatory power but not the science. This is insane. All it takes is the will and leadership to change. End update]

I want to take a different tack on science and DEP decision-making today.

My typical argument is to focus on scientific integrity and complain about political intervention or economic considerations being injected into the science. I then argue in support of rigorous science.

But, the science issues with respect to Barnegat Bay are different and more complex.

In the case of the Bay, a misguided and mismanaged quest for scientific certainty is impeding good decision-making.

DEP Managers’ tendencies to dodge accountability by seeking a false scientific certainty is the flip side of the industry game of  ”manufacturing uncertainty” – both approaches paralyze regulatory decisions and delay necessary action.

Available science is being ignored by the policy makers. Policy must be supported by science, but not limited by it. Science will not tell us what we should do. See the lessons learned in the Puget Sound with respect to the role of science, which include:

Best Available Science and Restoration Policy

The published literature is rich with insights into the often troubled relationship between science and policy. Throughout our interactions with the five projects, we were reminded of several basic principles of an effective working relationship between science and policy that further suggest fundamental strategies for optimizing science’s role in the decision making processes.

To avoid the misuse, and ensure the best use, of science, we must understand the fundamental limitations of the scientific discipline. Science is a process of inquiry grounded in hypothesis testing and observation. Scientists aim to produce objective, value-free  information from data gathered from the natural world. Thus, scientists are comfortable collecting information that can be used to understand the potential consequences of actions; however, scientists generally begin to feel uncomfortable when asked to advise decision makers regarding what should be done given the scientific information presented. Scientists who abandon objectivity for advocacy run the risk of loosing credibility in the eyes of other scientists and the public (Boesch and Macke 2000). Therefore, scientists should not be asked what should be done, but rather to define the possible range of actions and evaluate the consequences of those actions. Decision makers should then consider other factors, such as social, economic, and legal issues in addition to scientific input (Boesch 1999, Huxham and Sumner 2000).20

In order for science, and problems addressed by scientists, to effectively influence decision-making, the science must be judged to be relevant. Clark et al. (2002) defined three attributes that influence the eff ectiveness of science:

• Saliency—whether science is perceived as addressing policy relevant questions;
• Credibility—whether science meets standards of scientific rigor, technical adequacy, and truthfulness; and
• Legitimacy—whether science is perceived as fair and politically unbiased

• Clearly articulated problems are essential for program success. For scientists to translate program goals into technical objectives and assess the feasibility and associated uncertainties of potential actions, science must be involved from the earliest (planning) phase of the program.
• Maintaining the independence of science from policy pressures ensures legitimacy and quality. However, science activities must be coordinated with other aspects of the program. Vertical integration teams help ensure communication between policy and scientific aspects of programs.

In Barnegat bay, so called scientific uncertainty is being exaggerated by DEP and used as an excuse to avoid tough decisions.

As we wrote previously, DEP takes a hands off approach in Barnegat Bay, deferring to the voluntary partnership National Estuary Program. This management weakness is compounded by the fact that despite very clear DEP regulatory jurisdiction and responsibilities under the Clean Water Act, there are few clearly articulated goals and virtually no vertical integration at DEP and between DEP and the BB NEP strategy.

Under this management void, DEP is literally on a course to science the Bay to death.

DEP policymakers, water quality scientists, and regulators seem to misunderstand the difference between basic science and regulatory science. DEP scientists are not academic scientists. Their role is to guide DEP priorities and support DEP decisions.

Scientists never have enough data and always want to collect more. If allowed to, scientists will study a problem forever, regardlesss of the need to make decisions.

Proof of causation is virtually impossible. Waiting for absolute proof is a fool’s errand, and is not good science or policy.

Decisions must be made under conditions of uncertainty. Statistical correlation or association – supported by a technical rationale or simplified model – are adequate.

Bullet proof mechanistic causation is not required to support regulatory decisions. The law merely requires that decisions be based upon “the best available science“.

The best available science concludes that nutrient (and sediment) over-load are the primary cause of the Bay’s decline. Other factors are important, but reduction of nutrient pollution loads demands immediate action. [Update: Restoring reduced freshwater flows and the Oyster Creek cooling tower NJPDES permit decision also fit this obfuscation and paralysis by analysis paradigm. The cooling tower permit decision can be made right now and does not require any additional science or regulation by DEP, so it is actually a more reprehensible evasion.]

Immediate action depends on enforcement of a regulatory mandate.

A regulatory mandate requires promulgated DEP surface water quality standards (also called “criteria”).

Those water quality standards require monitoring, measurement and assessment methods and programs at DEP.

All this must be based on the “best available science”.

From 2002 – 2004, I led a DEP clean water team initiative that put all these pieces together to draft a Technical Manual to enforce phosphorus surface water quality standards in NJ freshwaters – it’s not rocket science, it’s regulatory science! (and that is far different than the industry “junk science” lie).

The same results can be accomplished for nitrogen in the Bay in a reasonable timeframe if the leadership and political will exists at DEP (which it does not at the present moment).

The below excerpt from the DEP’s 2009 Nutrient Criteria Enhancement Plan is a perfect illustration of those problems. Read it closely and see how DEP is misguidedly setting far too high a scientific burden of proof. DEP confuses causation with merely linking stressors to biological response:

3. Nutrient Studies

New Jersey recognized in the mid-1990s that relying on chemical concentrations alone as indicators of nutrient impacts did not adequately identify or protect waters with nutrient-related problems. Nutrient-related problems (e.g., excessive algae or excessively low dissolved oxygen (DO)) were sometimes observed in waters with low concentrations of total phosphorus and sometimes not observed in waters with high concentrations of total phosphorus. …

The Department is conducting technical studies linking stressors (i.e., total phosphorous, nitrogen) with biological responses (i.e., periphyton diatoms, biomass, chlorophyll a, diurnal DO, turbidity, etc.). Active field investigations and site-specific studies are currently underway to investigate the relationships between nutrients (stressors) and response indicators (e.g., chlorophyll a, algal biomass and algal community structure) to determine if predictive stressor– response models can be developed that are protective of designated uses and can be used in future assessments. The following studies are being conducted to develop appropriate biological indicators and indices to correlate between chemical concentrations of nutrients and the biological responses. (@page 19) [...]

• Shallow Coastal Bays (including Barnegat Bay):

The federal government (USEPA and NOAA) has already developed a suite of indicators (e.g., EPA’s National Coastal Assessment Report 2005 and NOAA’s National Estuarine Eutrophication Assessment update) and applied them to New Jersey’s coastal bays. The Department is working with Rutgers, USEPA Region 2, USEPA Office of Research and Development, and NOAA to evaluate existing indicators and establish New Jersey-specific benthic indicators to assess aquatic life use in New Jersey’s shallow coastal bays by 2010. The Department has also begun collecting real-time diurnal DO data, in partnership with Monmouth University and the Barnegat Bay Estuary Program. These benthic indicators will also help identify aquatic life use impairments that are nutrient related. Existing data on benthic communities in the near shore ocean waters and estuaries of New Jersey has been compiled and additional data has been collected; however, additional research is needed to develop cause/response indicators to determine if nutrients are the cause of any use impairment found in these waters. The Department has applied for a USEPA grant to collect sediment cores from the tidal region of Barnegat Bay and determine the chronology of nutrient changes (N/P) and associated ecosystem level responses. Changes in various biogeochemical proxies (biogenic Si, stable isotopes of C and N, etc), along with changes in diatom community structure, will be used to infer changes in nutrient loading and land use throughout the watershed.

These benthic indicators for coastal waters, once they are developed, will be used to reassess aquatic life uses in these waters. Where assessment results indicate use impairment based on these new indicators, the Department will need to determine if nutrients are the cause of impairment before proceeding with nutrient criteria development for these waters. (@page 18)

DEP does not have to have science documenting the cause of eutrophication before it can establish nutrient standards and enforceable load reduction requirements.

If DEP is allowed to continue to follow this long and winding road, the Bay will die before the data come in.

And there will be no boats or people sitting on the docks of Barnegat Bay.

Bill Not On Aug. 23 Senate Board List – Have “forces of evil” prevailed in Trenton too?

On July 15, 2010, the Senate Environment Committee released S 2108 (Smith (D-Midddlesex)/Bateman (R-Somerset), a bill in response to the Gulf BP oil blowout. The bill would increase the NJ State oil spill liability cap from $50 million to $1 billion (see: Gulf Blowout Prompts NJ Lawmakers to Increase Polluter Liability To $1 Billion)

Oil and chemical industry lobbyists strongly opposed the bill in Committee.

Senator Beck (R-Monmouth) supported the off shore liability, but agreed with some of the industry testimony regarding differences between inland and off shore operations and liability. Beck suggested the need for amendments to address those issues, based upon data on risks.

I was next up right after Beck’s remarks, and testified about inland liability issues. I noted that BP, prior to the Gulf blowout,  had a 2005 explosion and fire at a Texas refinery that killed 15 workers and caused huge toxic air emissions. I urged the Committee also to consider the huge liability associated with catastrophic release from chemical facilities regulated under the NJ Toxic Catastrophe Prevention Act program (TCPA). For example, US EPA says 15 NJ TCPA chemical facilities could kill over 100,000 people. I also mentioned Natural Resource Damage liability and shortfalls in current Spill Act funds.

Strong industry opposition and Senator Beck’s concerns lead to a compromise. Chairman Smith announced a plan to release the bill and then amend the bill on the Senate floor on August 23 to address the inland liability issues. The bill was approved unanimously with that understanding.

Smith then asked industry lobbyists and DEP to provide recommendations that were supported by data. (click on to listen to the testimony – Chairman Smith’s plan is at time 1 hour;13 minutes)

Based on this request, I’ve since advised Senator Smith that in a 2008 rulemaking proceeding, in a response to my comment (#77 below), DEP claimed that they lacked legislative authority to require that the chemical industry provide insurance or financial assurance to address catastrophic releases. In the May 5, 2008 TCPA rule adoption document, DEP stated:

77. COMMENT: The proposal should require the facility to provide financial assurance to the Department and proof of private insurance for the total economic liability that would result from release of an EHS, based upon the off site consequence analysis.

RESPONSE: The Department does not have the authority under the Act to require owners or operators to provide liability insurance for an EHS release.

So, all eyes are on the Senate Board list for August 23 – I just checked. The bill is not posted.

So, who killed the bill? Or is there some good explanation for delay?

The NJ State bill parallels a federal effort led by NJ Senator Menendez.

During the hearing, during the testimony of Jim Benton of the NJ Petroleum Council, Committee Chair Bob Smith described oil industry Washington DC lobbyists opposing the Menendez bill as “forces of evil” – but Smith claimed that those same forces did not have as much influence in Trenton as they do in DC.

Since then, the “forces of evil” (i.e. oil industry lobbyists) were successful in killing the Menendez bill to increase the cap on federal liability (see: Senate Democrats punt on oil spill bill)

Have the forces of evil prevailed in Trenton too?