WolfeNotes.com

Equivocal Proposal Suggests EPA Is Stalled After Recent Obama Shift in Policy

Last week, EPA issued a press release announcing a Federal Register Notice seeking public comment on whether EPA should consider public health risks from vapor intrusion as a factor in eligibility for the Superfund cleanup program (my emphasis on “whether” is key – read on). 

The EPA proposal was boldly titled: “Potential Addition of Vapor Intrusion Component  to the Hazard Ranking Sytem” (emphasis on “potential“).

The proposal went on to ask the public, “if” EPA should, then ”how” EPA should do so.

EPA, the supposed experts, provided no substantive details on how they thought vapor intrusion should be considered. EPA provided no timetable for final decision or any commitment to final rulemaking.

EPA merely solicited public comment on a series of questions EPA posed, as if vapor intrusion was some deep unknown or new discovery.

Nonethless, as is typical, the EPA move was reported favorably in the press and praised by citizens and environmental groups as progress (see Bergen Record story Pompton Lakes gets hope from EPA

However, a closer look at the history and current bureaucratic process suggest a very different picture – specifically, that the proposal was snagged by Obama’s recent Executive Order and U-Turn on regulatory policy.

Here’s some strong evidence as to why that is likely to be the case – as in most political and policy matters, understanding the timing and context are important:

Eligibility for Superfund cleanup is established by a risk screening method known as the EPA “Hazard Ranking System” (HRS) – the higher the score the worse the risks. Sites that score above 28.5 points qualify for Superfund.

The current EPA HRS does NOT consider risks from vapor intrusion. (but DEP has even worse flaws – DEP has no priority system in place).

Such a long overdue move by EPA to fix this HRS flaw would qualify hundreds of  more contaminated sites for the Superfund “National Priorities List” (NPL), including at least 20 more sites in NJ where toxic chemical vapors are poisoning people in homes, schools, and other buildings (see GAO Report below).

This significant expansion in the Superfund program would cost polluters billions of dollars more in cleanup costs, and comes at a time when the Superfund pot of cleanup money is empty, and efforts to renew the funding are stalled by pro-industry Republicans in Congress (and opposed by Governors like NJ’s Chris Christie, who oppose regulation and demand that environmental agencies to “do less with less” ). 

So obviously, there has been – and currently is - fierce behind the scenes lobbying by polluters and anti-governmental zealots to block EPA from doing this.

My sense is that EPA’s “Hazard Ranking System” proposal has, at best, been stalled or relegated to a regulatory purgatory. At worst, the proposal has already been derailed - killed behind the scenes - and amounts to a “dead proposal walking”.

In the latter (and more likely) case, EPA’s Fed. Register Notice would merely be going through the bureaucratic motions to save face and avoid having to ID the corpse and suffer the political embarrasment of having to admit caving to chemical industry and Republican pressure.

As we have written, the Vapor Intrusion (VI) phenomenon is nothing new. For example, EPA proposed VI guidance for toxic site cleanups almost 10 years ago, back in 2002.

Since then, the number of toxic sites where EPA and State agencies are discovering chemical vapors seeping into buildings has expanded greatly, and so has the public outrage  those belated discoveries create.

But many of those VI sites are not currently eligible for Superfund because the HRS scoring method fails to consider VI exposures and risks. Thus, those sites were ignored. As a result, many people are being exposed to avoidable VI risks without their knowledge and with no program to fund cleanups. 

But despite knowledge by EPA of serious VI problems nationally, for years, EPA never moved to revise the HRS scoring method. Why do you think that is the case? Surely not because of lack of knowledge of these risks by EPA scientists and staff.

In fact, the current proposal to expand the Superfund HRS did not originate within EPA. 

In fact, the impetus came not from EPA, but from a recommendation in a critical Government Accountability Office (GAO) May 2010 Report to Congress. NJ featured prominently in the GAO Report and NJ DEP officials were interviwed. DEP estimated the addition of from 15-25 new Superfund sites. GAO found (read the full GAO report here):

EPA regional officials estimated that from 101 to 125 sites—about 20 to 25 sites per year—will be added to the NPL over the next 5 years, which is higher than the average of about 16 sites per year listed for fiscal years 2005 to 2009. Most of the 10 states’ officials GAO interviewed also expect an increase in the number of sites listed from their states. However, neither EPA regional officials nor state officials were able to provide cost estimates for cleaning up many of the sites. In addition, the number of sites eligible for listing could increase if EPA decides to assess the relative risk of vapor intrusion—contaminated air that seeps into buildings from underground sources—a pathway of concern among EPA regional officials and state officials interviewed. Although sites with vapor intrusion can pose considerable human health risks, EPA’s Hazard Ranking System—the mechanism used to identify sites that qualify for NPL listing—does not recognize these risks; therefore, unless a site with vapor intrusion is listed on some other basis, EPA cannot clean up the site through its remedial program.

Based on that finding, GAO recommended: 

To better identify potential NPL sites, GAO recommends that the EPA Administrator determine the extent to which EPA will consider vapor intrusion in listing NPL sites and its effect on the number of sites listed in the future.

EPA didn’t initiate, they reacted, to address the negative GAO findings and implement the GAO HRS recommendation. Back in December, EPA released an “ Integrated Cleanup Initiative Draft Implementation Plan“, which was open for public comment through January 10, 2011.

That EPA implementation plan called the VI HRS revision as an action item. The December Plan also suggested that EPA would soon engage in rulemaking to incorporate vapor intrusion risk into the Hazard Ranking System (HRS).

One would assume that after years of experience with vapor intrusion at scores of sites, and following the public comment on the “action items” in the December implementation plan, EPA now would be in a position to propose a regulation – with specifics and meat on the bones – for public comment.

But EPA did not propose a regulation. They proposed a public notice asking “whether” EPA should propose a regulation.

Do a hollow Federal Register Notice that merely asks a set of questions and EPA plans to hold “listening sessions” constitute “action“? Not in my book.

There is a huge difference between an actual regulatory proposal and a notice seeking comment on whether EPA should regulate.

My guess is that EPA got strong political opposition, and is backing off, given the recent Obama Executive Order  and U-turn in policy on regulations.

And consider the chronology closely - the timing between the May GAO Report, the December Draft Plan, the January Obama EO, and last week’s proposal – that’s more evidence suggests bureacratic backtracking by EPA.

But if that doesn’t convince you, read the timid, equivocal, contentless, and murky language of the proposal itself - read the full proposal here:

To comprehensively explore, and if determined appropriate, identify approaches for adding the threat posed by contaminant vapor intrusion into occupied structures to the HRS, EPA is beginning the process of soliciting stakeholder input. To determine whether to move forward with this addition, and if so, to determine a range of potential approaches, EPA is soliciting input on the topics described below.

I thought it might be interesting for readers to take a look at the Sunoco Coastal Eagle Refinery which was the subject of the DEP NRD Deal with new owner El Paso.

The Settlement document lacks any factual findings that describe the specific NR damages (how convenient for El Paso!). It merely references various very old remedial investigations. So until I can file an OPRA and review the documents, we’ll speculate about the nature and scope of pollution impacts (DEP leaks welcome!).  I do have some old RCRA documents that show a regulated old landfarm and lime slurry operations. The site is bordered by the Delaware River at the top (west) and dense (1/4 acre lot) residential neighborhoods on the left (south) and right (north).  

Let’s take a few closer looks – I’m no aerial map interpretation expert, but I’ve been to the site and will make notes.

Does that pond look like a healthy swimming or fishing hole? What's that white crap? Â Looks like some kind of landfill on the right

 Here’s what the school looks like from the ground – look closely directly above the dome of the school and see the looming refinery towers. Toxic air emissions are not good for children and other living things!

On lower left, note the wetlands, and stream flowing from the pond to the river. Note the drainage ditch along the perimeter that also discharges to the river. There may be old unlined surface impoundments and lagoons stored toxic liquid hazardous waste on site. These and hundreds of spills and leaks over decades of operation, have led to massive soil and groundwater pollution. I assume that this groundwater pollution and surface runoff from the site are polluting the Delaware and poisoning ecosystems. I wonder what the Baseline Ecological Evaluation and NR damage assessment concluded about all that? How much are those resources worth?

Looks like there are some pretty valuable natural resources and sensitive receptors at the northern perimeter of the facility too. How’d you like to live in that neighborhood?

That’s a Farm down there, but it sure don’t look like Old MacDonald’s Farm. Does it look well maintained?

Gee, I wonder what kind of toxic crap is in this tank?

But don’t worry, be happy. The business friendly Christie DEP’s is looking out for you and Bob Martin is treating his ”customers” (Sunoco) right! (look at that logo! Wow! The Official Fuel of NASCAR! But that tank in the lefthand background doesn’t look too good).

DEP Issues Press Release 3 Months After Agreement Reached in October

Sunoco Coastal Eagle Refinery (West Deptford, NJ)

[Update: 1/26/11: surprisingly, veteran reporter Tom Johnson and the Sultan of the Soundbite Jeff Tittel both got smoked. See Tom's NJ Spotlight story: Upper Raritan River Comes Back to Life

Here's my comment on it:

The issue - and the story here - is not whether removing dams is good for fish and water quality.

If that were the case, then the Dupont NRD deal to plant trees and preserve land would have been given "rare praise" as well (instead of condemned by Tittel and others as a "sweetheart deal").

The real issues are: 1) whether the public was adequately compensated by an oil company for hundreds of toxic spills and leaks over decades at a billion dollar profit producing refinery - and 2) whether the natural resources damaged by those toxic pollution discharges along the Delaware River have been restored.

The answer to both questions is a resounding NO.

And just like Pompton Lakes, the people of West Deptford who suffered the harms got screwed entirely.

 

DEP issued a press release late today announcing a Natural Resource Damage (NRD) settlement agreement involving pollution from the Sunoco Coastal Eagle refinery in West Deptford (and 3 affiliated company facilities: EPEC Polymers Inc in Flemington; Nuodex Inc. in Woodbridge; EPEC Polymers Inc. in Burlington City).

There have been hundreds of spills and discharges at the Coastal Eagle refinery over many years, leading to significant soil and groundwater pollution, off site contamination, and adverse water resource, fisheries, wildlife and ecological impacts.

The deal is unusual and raises all sorts of red flags.

First is timing: the NRD Settlement was published over 3 months ago in the NJ Register, on October 18, 2010.

The opportunity for public comment expired in November - there was little public awareness and no public comment on the deal. 

So why is DEP issuing a press release now, after the public comment period is closed? Why didn't DEP issue the release 3 months ago, when it mattered and the public could have used the information and meaningfully participated?

The timing also suggests DEP is responding to last week's bad press on air quality rules for refineries that have come under attack. The coverage of that story created the impression that Governor Christie's "regulatory relief" policies were seriously flawed.

Today's DEP release puts out some good news on refineries, and creates the opposite appearance - let's just agree to call it news management.

Last, on the merits, the deal is totally arbitrary. This repeats a longstanding problem, as the NRD program has lacked transparent and enforceable standards. In May 2009, we wrote to Governor Corzine to warn about this problem:

Dear Governor Corzine:

We are writing concerning the need for standards to assess and restore adverse ecological impacts resulting from the discharge of hazardous substances to the environment at more than 20,000 sites in New Jersey. Individually and cumulatively, these sites represent a major threat to sensitive ecosystems and natural resources, as well as public health. It is imperative that those impacts and ecological impairments be assessed, restored, and the public fully compensated for lost uses of important fish, wildlife and other natural resources resulting from the discharge of hazardous chemicals to the environment.

The need for these standards has become even more pressing, in light of the recent law enacted to establish a privatized “Licensed Site Professional” (LSP) program. (P.L. 2009, c.60.)   [find the full letter here]

The Sunoco deal is highly unusual and seriously departs from almost all prior settlements.

It lacks what the lawyers refer to as a “causal nexus” between the original pollution that caused the natural resource injury, and the restoration or compensation for that damage. [Clarification: there is $156,655 for a Delaware estuary study.]

That was a major controversial issue recently in the Dupont NRD deal, where Pompton Lakes residents got no benefits, despite suffering years of Dupont pollution.

New Jersey courts and the business community have opposed such unprincipled and unbridled discretion to coerce NRD settlements, especially in the absence of promulgated DEP rules. Rules would provide up front guidelines, criteria, standards, and procedures for estimating the value of natural resources damaged and the parameters of settlement in the form of money compensation or restoration of equivalent natural resource functional values.

Ironically, the Christie DEP Transition Report demanded more transparency and rollback in the NRD program:

Transfer all responsibility for NRD assessment restoration and recovery to Site Remediation.

Adopt regulations regarding NRD assessment, restoration and recovery that are transparent, stable and predictable.

The Sunoco refinery deal provides for the removal of 3 small dams on the Raritan River. While I support dam removal, what does that have to do with toxic soil and water pollution along the Delaware?

There is simply no nexus between pollution at a refinery on the Delaware river and dam removal on the Raritan river.

Both the timing and the “Lets make a deal” nature of this NRD settlement are troubling.

Scott Segal, an energy expert at Bracewell & Giuliani, a law and lobbying firm in Washington, said Ms. Browner’s leaving might be a sign that the administration would be more sensitive to the concerns of business.    NY Times Director of Policy on Climate Will Leave, Her Goal Unmet

I don’t like to delve into the national scene, but sometimes the “I told you so” factor is too sweet to resist.

From the outset of the Obama Administration, we have been highly skeptical and publicly critical of the environmental policy agenda.

That skepticism initially was based on selection of Lisa Jackson as EPA Administrator, a nice person, but long on rhetoric and short on delivery (and we never had high regard for recycled Clintonite, Carol Browner. But we have high regard for EPA Region 2 Administrator Judy Enck).

We agreed with Jeffrey St. Clair, who was the only one to puncture the spin about “Obama’s Green Team” (see “Obama’s Used Green Team“)

Our concerns have been confirmed repeatedly by EPA’s actions since then.

For example, just yesterday, Jeff Ruch, PEER national Director, wrote Jackson to complain of the failure of EPA to enact scientific integrity policies, concluding:

As you know, PEER opposed your confirmation as EPA Administrator based upon your record as Commissioner of the New Jersey Department of Environmental Protection (DEP). One of our principal concerns was that you repeatedly did not follow through on promises you made for action at DEP, leaving a trail of unfulfilled rhetorical commitments. We see a repetition of this same pattern durign your tenure at EPA.

So the fact that Obama’s “ambitious goals”  have achieved – at best – what the New York Times today characterized as “modest policy gains“ - and that the Administration is now backtracking on the environment, comes as no surprise to us, nor should it to anyone else who is paying attention.

And the NY Times apparently is not aware that almost all of the promised regulations that support their claim of ”modest policy gains” remain just promises and have not been finalized and formally adopted. So there is still lots of backtracking to be done before 2012.

In a larger sense, today’s story about the departure of Carol Browner – White House “Energy Czar” – was no surprise. It was preceded by several obvious signals of retreat, not the least of which was the collapse of cap and trade (which we viewed as a good thing, but done for the wrong reasons).

Just last week, Obama issued an Executive Order on Regulatory Review, which parroted right wing talking points about regulation.

But even before that Executive Order, and before his selection of a new corporate Chief of Staff, and before his appointment of GE CEO to head the economic development team, back in December, Obama made an announcement he would atttend a CEO summit, about which we wrote (see:  Obama CEO Summit Explains EPA Regulatory Retreat

Growing more republican every day, last Thursday, the New York Times reported that the Obama EPA was walking away from major regulations, just at the critical moment when EPA needed to ramp up regulations to address global warming in light of Republican intransigence and global warming denial in Congress.

As we again wrote more recently, 

We started in the wake of Obama’s disaster at the global warming treaty collapse at Copenhagen; with deep disappointment with Congressional Democrats’ inability to enact real reforms despite huge majorities in both Houses; and under a dark cloud cast by the election of  NJ Governor Chris Christie.

Some may think that Browner’s departure is no big deal because EPA has announced plans to regulate greenhouse gas emissions. 

Well, we hate to burst anyone’s bubble (again), but EPA’s plans to regulate greenhouse gas emissions from refineries and power plants are hollow.We mean that literally. 

Contrary to how it was presented in the press and praised by environmental groups, EPA’s GHG “tailoring rule” was expressly presented as regulatory relief,  and explicitly designed to protect industry from harsh regulation. The EPA proposal states:  

This rulemaking is necessary because without it PSD and title V requirements would apply, as of January 2, 2011, at the 100 or 250 tons per year (tpy) levels provided under the CAA, greatly increasing the number of required permits, imposing undue costs on small sources, overhelming the resources of permitting authorities, and severely impairing the functioning of the programs. EPA is relieving these resource burdens by phasing in the applicability of these programs to GHG sources, starting with the larget GHG emitters.

While regulating largest sources first may seem to make administrative sense, it makes no sense at all from a global warmign standpoint, where the concern is the cumulative impact of emissions from many sources, large and small. In fact, EPA’s approach makes no sense, and is a bigger strategic mistake than Congress’s grandfathering of all those dirty coal power plants in the original 1970 Celan Air Act, a case of original sin we are still living with. 

But things are actually worse, because EPA proposed consideration of an “empty permit” (see page 31,517). An “empty permit” is just what its name implies – a joke, with no requirements at all, and issued soley to legally protect polluters. EPA stated: 

We intend to consider the issue of applicability of title V to GHG sources without applicable requireements (i.e. “empty permits”) in future steps of our “tailoring approach”. When we do so, we will further assess the potential for the approach of excluding empty permits from title V to relieve burden. 

Lisa Jackson personally issued the so called “Jackson memo” that set the groundwork for all this. That memo amounts to more continuity with the Bush Administration (arguably, it could be slightly worse). Industry trade journals report:

In April 2010, Administrator Jackson issued a new interpretative memorandum, the “Jackson Memo,” to clarify EPA’s approach to PSD and Title V applicability for pollutants, particularly for greenhouse gases, as a function of the adoption of vehicle emission standards.[12] The Jackson Memo continued the previous [Bush Administration] interpretation with one twist—EPA decided that PSD and Title V permitting requirements “take effect” for newly regulated air pollutants only when actual compliance with emission control requirements for those pollutants is first required, rather than on the earlier dates of (i) signature of a rule establishing control requirements, (ii) publication of the rule in the Federal Register, or (iii) the formal effective date of the rule, typically 60 days after publication

EPA subsequently followed up on the “tailoring approach” with an empty – literally, in this case content-less – press conference announcement of a settlement agreement to propose regulations in the future that would apply to refineries and power plants.

It has not been reported that the EPA Settlement is a weak deal. Fine print of the settlement agreement allows EPA to violate the deadlines for regulations with virtual impunity. The settlement provides little enforcement leverage for environmentalists  – see remedies in paragraph #7 .

The regulatory deadlines in the settlement give EPA another big out – thay are conditioned upon the availability of approriations and thus may be killed by Republicans in Congress who have said they will not fund global warming regulations (see paragraph #12).

Analyzing that press announcement, we concluded:

The Bush EPA rejected the Section 108 NAAQS approach as too costly and politically infeasible.

So did Obama and Lisa Jackson. Same as Bush – this is not change we can believe in.

We don’t have the time or energy to conduct a full blown 2 year review of the Obama/Jackson record.

However, just off the top of our head on the few things we have written about heere (we focus on NJ), we must consider:

• the debacle in the Gulf of Mexico  - which was preceded by
• Obama’s high profile announcement of support for off shore drilling - including
• the disaster on dispersants 
• the Obama embrace of corporate insiders
• in another Bush Administration continuity, the Obama WH overuled scientists on coal ash regulations
• EPA caved on coal ash regulations
• and that: Obama Backs the Frack

Just goes to show, you gotta watch what they do, not what they say.

Obama is dominated by corporate interests.

And, as we predicted-  just like in NJ, where she caved to Governor Corzine’s political whims - Lisa Jackson lacks the independence and spine to stand up and fight.

Assembly Democrats Back Repeal of Tough DEP Clean Air Rule for Gasoline Storage Tanks

tanks at Bayway Refinery (Linden, NJ)

Obscene Corporate Profits More Important that Childrens’ Lungs

Last Thursday, the Assembly Regulatory Oversight Committee  released a resolution (ACR 132) that found a DEP clean air regulation “inconsistent with legislative intent”, the first step of repealing the rule.

Tom Johnson of NJ Spotlight wrote a good story last Friday: Assembly Committee Rescinds Tough Anti-Smog Regulation – Rule aiming to cap pollution from petrochemical storage tanks found inconsistent with earlier laws:

Bill Wolfe, director of the New Jersey chapter of the Public Employees for Environmental Responsibility, defended the rule, saying the federal Clean Air Act contemplated a strong role for states to define control measures that were state-specific.

Today’s Philadelphia Inquirer story goes further and documents political contributions by the oil industry to influence NJ legislators: Lawmakers including Paulsboro’s Burzichelli seek to roll back oil-refinery rules

It is obvious that the oil industry is cynically trying to capitalize on the current economic recession and Governor Christie’s regulatory relief policies to roll back a 2009 DEP regulation on gasoline storage tanks.

The rule was proposed back in 2008 and has been on the books for almost 3 years. The legislature had ample opportunity to raise objections during the 2008 public comment period but failed to do so. Obviously, the only relevant thing that’s changed since then is Governor Christie’s “regulatory relief” policy agenda, which has invited oil industry lobbyist to mount a legislative attack.

DEP justified the gas tank rule as part of a comprehensive EPA approved State Implementation Plan (SIP) to meet EPA federal ozone (smog) standards (NAAQS). NJ is not in compliance with the current 75 ppb ozone NAAQS:

“The Department estimates that attaining the Federal 1997 8-hour NAAQS for ozone in New Jersey would eliminate about 40,000 asthma attacks each year and substantially reduce hospital admissions and emergency room visits among children and adults with asthma and other respiratory diseases (NJDEP 2006 ozone report). As such, implementing the proposed RACT rules would not only yield greater air quality benefit, but also would save lives and money and provide better living conditions for the people of New Jersey, especially the susceptible populations. Based on an article in the April 2007 of Harvard Center for Risk Analysis’ newsletter “Risk in Perspective,” the Department estimates that ozone exposure results in increased deaths per year in New Jersey (“Relationship between Exposure and Mortality Risk,” Risk in Perspective, Vol. 15, Issue 2, p.1 (April 2007); available at http://www.hcra.havard.edu/perspective.html). 

DEP bent over backwards and gave the oil industry until 2020 – 10 years - to comply with the requirements to control volatile organic compound (VOC) emissions from their storage tanks, primarily located at refineries. DEP estimates that the rule will reduce current VOC emissions from gasoline tanks by 130 tons per year. DEP estimates that these requirements will apply to about 70 tanks and cost $58 million. If that cost were fully passed through to consumers, the impact would be less than one penny per gallon of gas at the pump.

Obviously, that $58 million wouldn’t put a dent in the industry’s rising multi-billion profits.

But, strategically, this DEP gas storage tank rule is chump change -  there are far larger issues in the pipeline.

Refineries will be required to reduce emissions even further to meet new EPA ozone standards (EPA proposed to reduce the current 75 ppb ozone standard to a range of 60 – 70 ppb in the January 19, 2010 Federal Register).

The oil industry is also seeking to derail EPA’s recently annnounced plans to adopt new greenhouse gas emissions controls at refineries by December 2012 (the so called national “new source performance standards”, NSPS for new or modified sources). States would then have until 2015 to develop state level NSPS for existing sources. NJ DEP will determine what greenhouse gas emission NSPS should be required at NJ oil refineries (and power plants). 

The oil industry is using this gas tank rule to draw a line in the sand and frame the debate on larger upcoming issues. As usual, they rely on the Big Lie about environmental requirements and the economy  (the current slogan is “job killing“).

For example, ACR 132 sponsor Burzichelli used that Big Lie in the Inquirer story, where he falsely claimed that the recent closure of the Sunoco refinery in West Deptford was related to environmental compliance costs. But, in reality, that refinery closed due to slack or declining demand for gas as a result of the recession.

The pawn in these larger debates is a rollback of existing gasoline storage tank vapor control air quality requirements. 

If the business community can back DEP off these current requirements, they build power to deter future requirements.

Here’s how the oil industry is seeking to back DEP off.

Under a 1993 amendment to the NJ Constitution, the legislature may veto state agency regulations if both Houses pass Resoltuions that find that a regulation is “inconsistent with legislative intent”. The legislature was given this power in the wake of a highly controversial rule proposed by the Florio Administration – known as the “runny egg rule” –  which triggered one of the first talk radio driven political backlashes.  

This veto power has been used very rarely. Instead, legislative oversight hearings are typically is used more as a political threat in order to extract concessions.

That’s exactly the Kabuki we saw yesterday. They are all playing a political game – here’s how it goes (listen here, the testimony starts about 20 minutes in) :

• Assembly Regulatory Oversight Committee Chairman Burzichelli is the sponsor of the bill. He begins the hearing by saying that the testimony must be narrowly limited in focus to legislative intent, not to policy arguments. He then uses this to shut down environmentalist testimony on health effects. But he sits back and allows oil industry lobbyists to complain about the high costs of the regulation; 
• Although Burzichelli knows the Resolution amounts to a legal gun to DEP’s head, he claims there is no adversarial role with DEP and emphasizes the fact that DEP Commissioner Martin has agreed to meet privately with him and the regulated oil industries;
• DEP appeared to testify to suppport the rule, thus creating the public appearance of protecting the environment (that provides insulation from press criticism); 
• But, DEP bent over backwards in testimony to assure Burzichelli and industry lobbyists that the Department is “sensitive” to costs, understands the concerns of the business community, and encouraging them to use an exemption provision in the rule (wink/nod); and
• Oil Industry lobbyist testimony repeatedly cited Governor Christie’s regulatory relief policies (cost benefit analysis and a policy not to be more stringent than federal minimums) and the Red Tape Report recommendations to promote flexibility.

The icing on the cake that makes this game possible?

There is a huge looophole in the DEP rule in question, under which DEP can let polluters off the hook based on a cost analysis:. According to DEP:  

Costs are also considered on a unit specific basis if costs are shown in an Alternative VOC control plan submitted pursuant to N.J.A.C. 7:27-16.17 to be economically infeasible because of unusual site specific circumstances which result in extreme costs.

In this case, the DEP rule in question requires that gasoline storage tanks install vapor controls to reduce emissions of volatile organic compounds (VOCs), including hazardous air pollutants like benzene, a known carcinogen.

VOCs are ozone precursors and contribute to unhealthy air quality commonly referred to as smog, or in regulatory jargon, exceedence of the NAAQS for ground level ozone.

NJ does not meet the current ozone standard and must sharply reduce current emissions.

In addressing the legislative intent question, a basic understanding of how the federal Clean Air Act works is necessary to understand what’s going on. According to EPA: 

In setting primary ambient air quality standards, EPA’s responsibility under the law is to establish standards that protect public health. The Clean Air Act (“Act”) requires EPA, for each criteria pollutant, to set a standard that protects public health with “an adequate margin of safety.” As interpreted by the Agency and the courts, the Act requires EPA to base this decision on health considerations only; economic factors cannot be considered.

The prohibition against the consideration of cost in the setting of the primary air quality standards, however, does not mean that costs, benefits or other economic considerations are unimportant or should be ignored. The Agency believes that consideration of costs and benefits is an essential decision making tool for the efficient implementation of these standards.

 The impacts of cost, benefits, and efficiency are considered by the States when they make decisions regarding what timelines, strategies, and policies make the most sense.

New Jersey’s comprehensive set of strategies to meet the NAAQS for ozone are found in the EPA approved State Implementation Plan (SIP).

I will address the legislative intent issues in detail in a susequent post. Drive Safely Now! (an absurd oxymoron, if ever there was one!) 

“There’s absolutely no way we can justify the Cooper’s hawk as threatened or endangered because it has come back so strongly,” DeVito said. “They’ve changed their behavior. They learned how to live in the suburbs.” from Kirk Moore story in the Courier Post  “Proposal for rules on wildlife causes stir”

Emile Devito’s quote hit a nerve in my addled brain - and illustrates fundamental problems.

white peppered moth

Thirty five years later, I still can recall a high school biology lesson on Darwinian evolution and natural selection - in this case, a vivid illustration of man induced adaptation. That lesson shocked me – both scientifically and ethically.

The phenomena we learned of was called “industrial melanism“. It was the case of the peppered moths of Manchester England. It was first noted in the 1800′s.

Moths and butterflies produce the most striking evidence of rapid evolutionary change, including induced responses from man’s alteration of the environment.

In Manchester, the white moth was dominant, while the black form of moth was rare in 1848. But 50 years later, black moths comprised more than 95% of all moths.

What happened?

Like the Cooper’s Hawk, it had “learned to live” with extreme pollution.

black variety - blends in with industrial air pollution

White moths stood out against the dark polluted industrial background soot that coated trees and other surfaces, while black moths blended right in. Predators had easy picking on the white ones.

So Darwinian “natural selection” favored the black moth.

But was this process natural? Are the implications ethical?

Cooper’s Hawk prime habitat is forested woodlands. NJ is losing that habitat to suburban development at an accelerating rate.

So, if Coooper’s Hawk now has adapted to suburban backyards (behaviorally, not genetically), does that justify eliminating forest habitat protections?

Under DEP regulations, threats to a species habitat are a legitimate factor in a threatened or endangered listing decision. Threats to habitat are as scientifically valid as population dynamics in deciding whether to list or delist a species. Specifically:

The reviewers consider data on species population and trends, productivity, survival and mortality factors, habitat requirements, and threats to populations and habitats. In the course of the iterative process, reviewers reach consensus on the appropriate status of each species using the classifications of endangered, threatened, special concern, stable-secure, unknown or not applicable (which includes species that have been extirpated from the State). (proposal at page 6)

Threats to all habitat are increasing throughout NJ, yet the scientists at DEP and the ENSAC ignored them.

In this case, the scientists are blinded by their own narrow interpretation of the science.

That’s neither good science or ethical policy.

I don’t want to live in a suburban zoo and I think it is wrong that we are creating one. Period.

DEP CEO Martin Approves Controversial Plan Before Public Review

DEP Commissioner Bob Martin

[Corrrection below]

Well, it sure didn’t take long for the first shoe to drop in 2011!

We knew it was going to be economic development uber alles, but we thought DEP Commissioner Martin would be a little smarter about how he went about it. We didn’t expect such a heavy handed and crude approach.

We expected just a little pro-conservation or pro-environment spin thrown in as a justification, not just flat out promotion of economic development

Acccording to today’s Star Ledger, DEP will change the threatened and endangered species list and eliminate habitat protections for over 31,000 acres of land:

The proposed changes would also reduce the need for protected habitat in New Jersey by about 31,000 acres — over 48 square miles — which could then be opened to economic development, the plan concludes.

“The net result of the proposed listing and de-listing is an overall reduction in lands protected as endangered and threatened species habitat,” according to the plan. “The indirect effect is a potential for increased economic growth due to the net decrease in area determined to be potential threatened species habitat and thus restricted under other regulations.”

[Update: Habitat is given protections by various DEP regulations:

Threatened and endangered species habitats in New Jersey are protected by several land use regulations that limit development and disturbance of areas identified as such habitat. Specifically, restrictions are imposed on the development of endangered and threatened wildlife species habitats under the following Department regulations: Coastal Permit Program Rules (N .J.A.C. 7:7), Coastal Zone Management rules (N.J.A.C. 7:7E), Freshwater Wetlands Protection Act Rules (N.J.A.C. 7:7A), Flood Hazard Area Control Act Rules (N.J.A.C. 7:13), Water Quality Management Planning rules (N.J.A.C. 7:15) and Highlands Water Protection and Planning Act Rules (N.J.A.C. 7:38). Restrictions on development of endangered and threatened wildlife species habitats are also imposed under the Pinelands Comprehensive Management Plan (N.J.A.C. 7:50).

While DEP approval of development of northern pine snake habitat has been in the news recently, back in 2009, we wrote about how DEP abandoned wood turtle habitat protections to appease developers.

Later in October, we disclosed DEP plans to Delist Threatened Cooper’s Hawk to Promote Development.

Martin’s plan  now formally delists and loosens protections for Cooper’s Hawk, and several other species.

Because this plan came out of the blue, we wonder if Commissioner Martin disclosed this plan to his “Stakeholder group” that met on Threatened and Endangered species issues. If not, Martin reveals enormous bad faith. Either that or the pro-conservation members of that Stakeholder group did a miserable job in organizing public opposition to Martin’s plan.  

Martin’s controversial proposal to sacrifice critical habitat protections to promote economic development must first go to the Endangered and Non-Game Species Advisory Committee for review. ENSAC’s role is to review the science supporting Martin’s plan to determine if it is sound – they are not a policy making body.

The plan must then be subject to public comment.

But Martin arrogantly ignores all that – he already approved the plan:

Hajna said the plan has already been approved by DEP Commissioner Bob Martin. The public comment period on the proposed changes lasts through March 19. After that, the DEP will decide whether to alter the plan, and implement the final changes, Hajna said.

Martin did the same thing on the bear hunt -

Note to Bob: it is simply wrong to approve a plan before relevant scientific advisory bodies review the science and an opportunity for public comment is provided.

Martin needs to learn that DEP is not a private corporation and that his is DEP Commissioner, not CEO.

[Correction - The above was written based on the Star Ledger article.  I was not aware of a rule proposal and thought the plan was not yet proposed as a rule, but was before the ENSAC for review. The rule has been proposed and is posted on DEP website. I  just read the proposal, and apparently the species recommendations were reviewed adn developed by ENSAC: 

 

After the expert review and classification, status determinations reached through the Delphi Technique are reviewed by the Department’s Endangered and Nongame Species Program and the Endangered and Nongame Species Advisory Committee, a committee of experts established pursuant to ENSCA (see N.J.S.A. 23:2A-7e) and its implementing regulations at N.J.A.C. 7:25-4.18) to advise and assist the Commissioner in carrying out the intent of ENSCA. (@ page 6)

It’s time for the 2011 year in preview, highlighting the major issues and controversies that will ripen in 2011.

I forsee a series of train wrecks, as DEP implements Governor Christie’s pro-business “regulatory relief” policies that are codified in Executive Orders #1-4. The framework and foundation for implementation of those policies was laid during 2010.

The enormous magnitude of material makes it impossible to discuss the substance of each issue in a single post. However, we have discussed most of these issues in depth here, so those looking for that and links to documents should use the word search function in the top right corner of the webpage.

The sheer volume, scope, and systematic nature of the assault itself is highly revealing, both of the arrogance and the radical degree of dismantling sought by the Christie administration. 

Looked at comprehensively, it is unprecedented and simply breathtaking.

My sense is that there is no way they can pull it all off, because they simply have bitten off far more than they can chew, if only from a DEP staff standpoint (the Christie Team appears impervious to public criticism and NJEF is working hard to provide political cover).

DEP Commissioner Martin is just learning that it takes almost as much staff effort to dismantle regulations and environmental programs as it does to create them. DEP is seriously understaffed, especially in policy analysts, lawyers, and regulatory experts required to do the job.

This reality will lead to another set of problems, as Commissioner Martin is frustrated by his inability to dismantle what he and his business cronies view as overly burdensome requirements via formal action. This frustration will lead to even less transparent and more abusive informal site specific case-by-case “regulatory relief” (e.g. negotiated deals), made necessary by the failure to ram through comprehensive rule changes.

Along these lines, the package of Red Tape bills passed by the legislature (now on the Governor’s desk) will prove very useful to Martin because they make it very easy for special interests to draft the text of DEP regulations. This abuse is now ocurring in DEP’s toxic site cleanup “reform” process (SRP), where, for the first time ever, private sector representatives are actually drafting the text of DEP’s regulatory documents.

Industry influence on DEP’s SRP is now happening on the “front end” of the rule development process, before new rules are even proposed for public comment (a major SRP rule proposal is expected in May 2011). The Red Tape changes in administrative law -  to allow previously prohibited ”substantive changes on adoption” - go even further and will allow industry to control the “back end” of the regulatory process and write the text of the final rules DEP adopts.

So, I’ve broken the issues down into six groups, based on how the DEP program, regulation, policy, or issue at hand emerged:

• I)     Killed (by EO#2 Moratorium and/or Red Tape Review)
• II)   To be Killed (new targets identified by Red Tape Review)
• III) Kills in Progress (targets already teed up by DEP Stakeholder review)
• IV)  Targets of DEP Transition Report
• V)    Other Likely Victims
• VI)  Progress Denied – what won’t get done in 2011

I) Rules or Programs Already Killed

As we recall, on his first day in office, Governor Christie issued Executive Order #1 which established a 90 day moratorium and forced reconsideration of about 23 DEP proposed rules in the pipeline. From what I can tell, it looks like only 9 or 10 of those proposals were adopted  before they expired. Among the most prominent rules killed were new proposed green house gas monitoring/reporting requirements; a drinking water standard for the toxic chemical perchlorate;  readoption of surface water quality standards; and various underground storage tank and toxic site cleanup requirements. The DEP’s ability to adopt ecologically based cleanup standards also quietly was eliminated.

II)  To be Killed (targets identified by Red Tape Review)

Citing the need to streamline bureaucracy and promote economic development, Appendix H of the Red Tape Report called for regulatory relief from a score of existing DEP regulations. We can expect DEP rule proposals to implement Red Tape Report recommendations, including rollbacks to the following existing rules:

• Water Quality Management  rules which prohibit sewer line extensions into environmentally sensitive areas such as forests, stream buffers, and endangered species habitat;
• Rules to protect the New Jersey Highlands, a region of 800,000 acres that provides water supply to 5 million state residents, from degradation due to over-development;
• Stream buffers protections and flood hazard reduction regulations;
• Strict oversight of toxic site clean-ups managed by private consultants, under a new privatized site remediation plan enacted under Gov. Corzine;
• Coastal zone management protections, including public access rules;
• Air pollution control to allow wider variances for exceeding permit limits; and
• Relaxing rules under the Toxic Catastrophe Prevention Act to prevent a repeat of the disaster at a Dow Chemical plant in Bhopal, India, where 7,000 people died from poison fumes. 
• The report cites compliance costs to industry and questions the need for any rules beyond federal minimums, as per the “Common sense” regulatory relief federal consistency policy in Executive Order #2..

III) Kills in Progress (targets already teed up by DEP Stakeholder review)

In addition to the above rules targeted by the Red Tape Report, and to implement the Red Tape Report recommendations and policies of Executive Order #2, DEP  Commissioner Bob Martin has establish several “Stakeholder” processes. These meetings are by invitation only, off the record, and closed to the public and press. DEP programs and rules discussed for regulatory relief include the following, for which we can expect rule proposals, program plans, or Guidance in 2011:

• public access to the coast 
• threatened and endangered species [Update: done: see this]
• Water Supply Master Plan (Eco-Flow Goals, water budgets, conservation, et al)
• Water Supply allocation rules
• waivers from regulatory requirements
• compliance and enforcement
• Permit coordination (one stop shopping, AKA “Let’s make a deal”)
• Toxic Site Remediation and privatized cleanup (AKA “Licensed Site Professionals” – LSP)
• stormwater management (also under attack as an unfunded State mandate under EO #4)

IV) Targets of DEP Transition Report

The Christie DEP Transition report was simply an angry radical screed. It proposed a systematic attack on DEP programs. Several of the Transition recommendations have already been implemented, as noted below (i.e. “done” or “ongoing”):

scale back or eliminate selected strategies that contribute the least to environmental improvement. (ongoing)

Reexamine regulations to ensure they are properly focused on specific, well defined goals, and minimize or eliminate peripheral requirements. (ongoing)

Eliminate the Office of Policy, Planning and Science and allocate policy and planning responsibilities to the appropriate regulatory programs (done)

Establish an advisory panel of external experts to advise DEP on matters of scientific and technological innovation. (done)

Reinstate the Alternative Dispute Resolution program under the Counselor to the Commissioner which had helped expedite settlements, thus reducing the number of disputes referred to the Office of Administrative Law (OAL) as contested cases. (done)

Establish an Office of Economic Analysis at the Department of State or the Office of the Governor as a shared service for all State agencies and tasked to provide advice directly to commissioners regarding economic drivers including the projected economic effect of new regulations. This office should also assist in risk assessment analysis for when agencies are setting regulatory policy. (done)

For every rule proposal, require a comprehensive discussion and peer review of the science the DEP considered in support of each element of the proposal, and for every rule adoption, the science relied upon by those commenting to support different policy choices, and any agreement, disagreement and uncertainty regarding the science. (done)

Require the Office of Economic Analysis to evaluate the economic and financial impacts of proposed rules or other major regulatory decisions (done)

Require the Office of Economic Analysis to evaluate the analyses of economic impacts received from interested parties during the public comment period (done)

Convene one or more informal meetings with stakeholders to discuss rulemaking objectives and accept input on policies, and whenever appropriate, distribute draft rule text to stakeholders for comment prior to the preparation of rule proposals. (done)

The DEP must fundamentally overhaul the way development projects are regulated and streamline the permitting process (ongoing). The State must create an office that provides a single point of entry with an accountable person to shepherd companies pursuing complex projects through the regulatory process (done). The DEP must immediately suspend the implementation of requirements that have not been properly adopted through rulemaking, and immediately reconsider existing regulations that impose requirements that are not grounded in sound science, are impractical to satisfy, and conflict with other State environmental and land use policies (done).

Create a business/project ombudsman in the Office of the Governor to create a single point of entry for complex projects. (done)

Provide that jurisdictional determinations (determinations as to whether or not a permit is necessary) may be requested and provided on-line. (ongoing)

Delegate land use permitting to the Meadowlands, Highlands, and Pinelands Commissions for the areas within their jurisdiction. (may be rejected)

Eliminate duplicative reviews by accepting the approvals conducted under the Municipal Land Use Law (MLUL) from other governmental jurisdictions when appropriate; for example, stormwater management plans need not be subject to multiple reviews. (status unknown)

Delegate land use permitting at brownfields sites to the Site Remediation Program (ongoing – now implemented in certain cases)

Immediately suspend the inappropriate use of the Landscape Project mapping of purported Threatened and Endangered species habitat. (ongoing)

Immediately rescind Administrative Orders requiring the application of 300-foot buffers from certain streams or rivers where existing rules require a 150-foot buffer. (ongoing)

Immediately suspend the practice of conditioning permits on the imposition of conservation easements on portions of property not subject to the pending application. (status unknown)

Revise existing rules to allow for the greater use of waivers and exceptions to specific requirements when project applicants demonstrate that alternatives will yield the equivalent or better environmental results. Immediately direct, as a matter of policy, that hardship waivers allowed under existing rules be granted when justified. (ongoing)

Reexamine buffer requirements in urban/disturbed areas and Planning Areas 1 and 2 designated for growth under the State Development and Redevelopment Plan (hereinafter referred to as the State Plan) as applied to wetlands, C-1 waters and potential Threatened and Endangered species habitat under Flood Hazard, Stormwater, and Wetlands rules. (ongoing)

Revise the Water Quality Management Planning rules (WQMP); update and improve sewer service areas through regional planning and coordinate with the State Plan. (ongoing)

Utilize the previously recommended business ombudsman to overcome existing regulatory hurdles without undermining environmental protections. (done)

With respect to the State’s efforts to seek compensation for damages to natural resources (NRD), we recommend that NRD efforts fall under the jurisdiction of the Site Remediation Program, and that rules be adopted to provide transparency, certainty and consistency in the assessment of those damages. (ongoing)

Revise the Interim Rule to limit its scope to SRRA required elements (ongoing). For example, the provisions of the interim rule applying new requirements for vapor intrusion were not mandated by SRRA and should be subject to fuller pubic review and comment before adoption (done).

Apply the DEP’s efforts toward compliance assistance to all site remediation professionals and responsible parties (done).

Review and revise current requirements pertaining to vapor intrusion within building structures, including how and when to test, notification, and/or mitigate (done/ongoing)

Transfer all responsibility for NRD assessment restoration and recovery to Site Remediation (status unkown).

Adopt regulations regarding NRD assessment, restoration and recovery that are transparent, stable and predictable. (status unknown)

There needs to be a recognition that agriculture, like every other business in New Jersey, has been overregulated and burdened by DEP rules (done). Farmers should be recognized as stewards to the land and treated as partners in land preservation not potential polluters. (done/ongoing)

Revenue generation should be maximized through the use of concessions, camping and park rentals and forest management. (ongoing)

There needs to be a full examination of DEP’s existing self-audit policy utilized by the regulated community, to ensure it does not create disincentives for voluntary disclosure and provides adequate and appropriate time to correct violations (done/ongoing).

There needs to be a full examination of DEP’s administrative penalty regulations to ensure they are fair and consistent (ongoing)

There needs to be a full examination of the implementation of the “Grace Period” regulations to ensure that they follow the legislative intent of the Grace Period statute. The Grace Period statute was aimed at making a distinction between minor and non-minor violations and providing an appropriate time to correct those violations. However, the DEP has inappropriately implemented the regulations by issuing automatic violations with limited time to respond. (ongoing)

Simplification of the permitting process: Title V Permits which are permits for certain large facilities, administered by the DEP as required under the federal Clean Air Act, have become extremely cumbersome and voluminous in New Jersey. Steps should be taken to reduce the complexity of these permits. (ongoing)

Chromium Standard: Re-evaluate the current chromium standard, taking into consideration natural baseline levels and peer reviewed scientific data. (ongoing)

Prevailing wage at brownfield sites: In order for the State to attract investment and compete for economic development with bordering states, New Jersey must eliminate the prevailing wage requirement under State reimbursement programs for brownfield sites. (status unknown)

V) Other Likely Victims

Other significant policy initiatives not specifically targeted by the above that will come to a head during 2011 include:

• Diversion of clean energy funds (last year Chrisite diverted $460 million) 
• revisions to the Energy Master Plan, especially regarding renewables, new fossil power plants, and nuclear power
• elimination of the Societal Benefits Charge (SBC) a small energy surcharge that funds about $800 million/year of energy efficiency and renewable energy programs
• DEP budget
• Barnegat Bay TMDL legislation
• implementation of the Red Tape legislative package regarding revisions to rulemaking procedures
• NJ’s policy on gas well hydro-fracking  and position on rules proposed by Delaware River Basin Commission
• federal and state permit review processes for the planned $5 billion new carbon capture and sequestration coal power plant in Linden
• the first round of recommendations are due from the controversia new Science Advisory Board
• Highlands “septic density standard (settlement of Farm Bureau litigation)
• Highlands water availability/deficit methodology
• Direction of the Pinelands Commission under new leadership of former NJ Builders Assc. lobbyist
• Will DEP expand Privatization to land use and water infrastructure programs?
• Will DEP propose new drinking water protections?

VI) Progress Denied – what won’t get done in 2011

Because Governor Chrisite and Commissioenr Martin have placed their entire policy focus on rolling back DEP programs and requirements to provide ”regulatory relief” to corproate business cronies, here are some key new initiatives that are stalled or being totally ignored -

1. Urban environmental quality and environmental justice

2. Treatment based approach to drinking water protections

3.  Strengthening public health policies, and developing new ecological standards and cumulative impact assessment methods

4. Implementation of Global Warming Response Act

5. Preservation of NJ’s Last Remaining Natural Landscape - Delaware Bayshore

6. Control of Hazardous Air Pollutants

7. Strengthening Coastal and Ocean Protections

8. War On Sprawl

9. Environmental, Green Infrastructure, and efficiency/renewable energy investments

10. Enhancing Science and landscape planning tools

What have I forgotten? Your input is welcome!

[Closing note: in case anyone is offended, I knowingly and intentionally used what may be perceived as inflammatory "targeting" violent rhetoric. And I have no apologies for the use of the term "murderers row" to describe chemical and business lobbyists, as I think the policies they advocate increase death rates.]