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DEP Puts Lipstick on the Industry Dominated Toxic Site Cleanup “Reform” Pig

[Update: 3/4/11 –   I   understand that some have problems with the rape metaphor I used in the below column, yet those with those problems apparently don’t have the courage to call me to discuss them. As you will note, I provided an up front reader warning about “sexual and knowingly inappropriate sexist metaphors and adult content”, so I anticipated those concerns. I did not use that word lightly, and I stand by the rape metaphor - In my view, the public interest and the environment are being raped (as in “plunder, pillage, despoil“). The phrase “rape of the environment” is not novel. But I apologize to readers hurt by that phrase and to the victims of actual rape. The usage in no way belittles those crimes – and I know men who have been raped. Other concerns apparently relate to the  personal ad hominem nature of the piece.  I generally oppose ad hominem attacks and prefer to write wonky policy stuff, but in this particular case, the ad hominem style was a valid form of conveying the meaning of what was going on. Again, I used the style knowingly, as it more precisely captures the essence than mere quotations of the testimony could have (“she praiseth too much, methinks”), and it more aptly expresess the outrage I heard from residents of Pompton Lakes. Last, there is the issue of personal accountability. In my view, policymakers are public figures that are not immune from personal criticism – IF that criticism is used to illustrate or make a larger policy point, which I did here. Again, I apologize to those offended by the personal nature of the piece.] 

Reader WARNING: sexual and knowingly inappropriate sexist metaphors and adult content may not be suitable for children.

I’ll first lay out (pun intended) my mixed metaphor headline.

“Faking it” is an allusion to Meg Ryan’s hilarious performance in “When Harry Met Sally” (watch it!).

DEP Deputy Commissioner Kropp’s December 9 over the top performance in testimony to the Senate Environment Committee on implementation of the Site Remediation Reform Act (AKA privatized cleanup under Licensed Site Professionals) would give Meg a run for the money in the drama category (third place goes to Blanche Dubois in her “old fashioned ideas” scene).

The last time my jaw dropped watching that giddy style was in Pompton Lakes last year. I can still recall the remarkable moment when a woman rose up – I think she was a local teacher – to demand that Kropp wipe that frozen fake smile off her face because it was insulting the People of Pompton Lakes! (we wrote about that episode here:

In closing, we note that several residents spoke that they were appalled by the behavior of the mayor and DEP Assistant Commissioner Kropp.

Residents accused Kropp of being disrespectful, arrogant, and condescending. Maybe the meds weren’t working, but I agree that Kropp’s continuous smug grin and haughty tone of voice were completely unprofessional and inappropriate. Several times, she flat out blamed residents for delays in installation of vapor intrusion systems in homes. She also refused to meet with certain groups or individuals, implying that they were effectively outside agitators and did not represent “the community”. I found these remarks divisive and outrageous.

So, getting back to the topic at hand: I’d ask Meg Ryan: what kind of woman fakes it for a rapist?

Because the public interest, public health, and the environment surely are being raped by the current “reform” process (my testimony below explains some of the reasons why).

Moving on, the “lipstick on the pig” metaphor refers to this “What’s New” material posted on the DEP website. Important to note that it was posted on December 15, just 6 days after the December 9 legislative oversight hearing – so it’s pure CYA: 

Draft Rules Documents

Stakeholder Process for Rules To Fully Implement the LSRP Program

The Department has been developing a proposal to amend the Administrative Requirements for the Remediation of Contaminated Sites rule (ARRCS), Industrial Site Recovery Act rule (ISRA) and the Underground Storage Tank rule (UST) to bring them into conformity with the Site Remediation Reform Act (SRRA) deadline for full implementation of the License Site Remediation Professional (LSRP) remediation program.  The statutory deadline for full implementation is May 2012. The Department anticipates publishing the proposal in the May 2, 2011 New Jersey Register for adoption in May, 2012.

This notice was posted to create a false appearance of openess, transparency, and balance.

It obviously was done in response to my criticism in December 9, 2010 testimony to the Senate Environment Commitee: (listen at time 1:26:20)

There were 2 fundamental premises of the LSP bill that are being violated in how the DEP is conducting themselves.

Number one, there was an expectation that the LSP’s would comply with the then existing technical standards – that we weren’t going to change the technical standards.

As we all know, a standard is more than a number. A standard includes how it is measured, monitored, and enforced. These things all come together.

But, according to DEP’s own testimony today, there are 5 (“stakeholder”) committees working on all aspects of the technical requirements for site remediation. Those are the core technical requirements dealing with everything.

For example, soil delineation requirements. A soil standard is meaningless if you are not measuring it in the field.

So my point is that there are technical workgroups meeting, which are 95% – if not 100% - composed of regulated members (LSP’s, industry).

These workgroups are hollowing out the technical requirements. […]

If you look at the composition of the stakeholder groups that have been established by the Department, there was a representation made here in testimony by Deputy Commissioner Kropp, that they somehow considered environmental viewpoints. I just beg to differ with that and I’ll give you the membership of those committees if you’d like.

They are not representative of the public interest and they surely are not representative of environmental interests.

They are completely industry dominated, including LSP’s who are writing their own ticket – it’s like a blank check to technical consultants to write their own requirements.

This is what’s going on right now – this is the kind of game we’re in – it is not a pretty picture.

When communities of concern find out what’s going on, that they’ve been out of the loop – and this has been redounding in Pomton Lakes on a daily basis as there is another disclosure about what the community didn’t know  about what the Department and Dupont were doing behind the scenes – when communities learn that, people get angry.   

They see that government is not working in their behalf , is not transparent, and is not keeping them and their town councils, mayors, and local officials in the loop.

The LSP program has only created less transparency. So there needs to be more effort on the part of the Department to make those things work.

And I don’t see any commitment to that at all.

[Note: DEP testified that all “prescriptive” requirements were being removed and that there will be “no must’s’, shall’s, or have to’s”. So in addition to watering down the technical requirements, they are being made unenforceable. This policy is being implemented not only in Guidance but in regulations. The SRRA law itself authorized LSP’s to rely on their own “best professional judgement”, regardless of whether it conflicts with regulations or Guidance. Privatization gone wild. For those interested, here is DEP’s bullshit briefing] 

Does that Lipstick website post provide evidence of a commitment?

Those industry dominated stakeholder groups have been meeting for months – so the damage is almost completely done.

A 9th inning website post does not repair the damage  – we see it as a cosmetic CYA move to provide insulation from the above criticism. Nothing substantive has changed.

The honorable Jorge Berkowitz and his colleagues at Langan Engineering are still in charge and in control of the substance.