WolfeNotes.com

Stop Dismantling Public Health and Environmental Safeguards

[Update: Read today’s Bergen Record’s outstanding editorial take on this, which lambastes DEP and the Governor, aptly titled: Sludge Report.

Because the Record explores the DEP’s failure to invite environmental representatives and assumes good faith, for the record, I was not invited as a “Stakeholder”, despite the fact that I started my career as a professional in DEP’s hazardous waste management and cleanup programs back in 1985. Since then, I spent 13 years at DEP. For 13 more years, as an environmental activist, I have served on Republican Senator Hank McNamara’s 1997 legislative Brownfields Taskforce and on Whitman DEP stakeholder groups (I was fired by Whitman’s DEP Commissioner, so it took some integrity on their part to invite in an outspoken, knowledgeable, and sure critic!). I’ve testified scores of times to the legislature, local governments, and DEP on toxics issues, and worked continuously on toxics in NJ for 26 years. Christie only wants pro-business viewpoints and those of friendly “enviro’s” like Dave Pringle, who is a shill and willing to provide sham cover. Pringle is a lobbyist, not a policy person with technical knowledge. DEP Commissioner Martin is an incompetent hack in implementing those Christie policies. Instead of transparency and openess to diverse views, in an outrageous abuse of power, DEP Commissioner Martin summoned the State Police to eject me from a DEP public hearing, for no cause whatsoever. All this must cease. End update]

Governor Christie’ Executive Orders #1-4 call for “common sense” regulation; cutting “red tape”; “streamlining bureaucracy”; making DEP “customer friendly”;  “harmonizing stringent state rules with federal regulations”; eliminating “unfunded State mandates”; and “promoting economic development”.

The Governor has recently dropped the mask and slogans and openly bragged about deregulation.

We’ve exposed the horrible policies those slogans are designed to mask here numerous times, but sometimes in technically dense jargon in the regulatory weeds.

So today I thought I’d take a different stylistic tack on the “common sense” front.

What do you think would happen to highway safety, things like accident rates, deaths, serious injuries (and your car insurance premiums!), if:

• Highway speed limits were made voluntary suggestions
• truck drivers were asked to use their best professional judgement on how fast to go
• radar was scrapped
• The Trucking Association was put in charge of issuing truck drivers licenses, inspecting trucks, monitoring speed, issuing tickets, and enforcing tickets in the Courts.

The answer is Common sense, eh?

Which brings me back to yesterday’s simply stunning Bergen Record article: Polluters rewriting rules for site cleanup

You really don’t  need to get past the headline to figure out what’s going on. But read the story anyway – there are revealing statements and remarkable facts documented by that story.

So I thought I’d elaborate slightly and provide a brief overview of the context in which those polluters are rewriting the DEP rules.

In 2005, there were a series of high profile environmental disasters that exposed lax oversight, mismanagement, and DEP failure to enforce NJ’s cleanup laws.

These included cases like:

• the illegal dumping of toxic PCB laced soil from the Ford (Rt. 1) plant demolition at residential construction sites throughout central NJ; 
• the discovery of thousands of cubic yards of illegally disposed asbestos at a Hamilton NJ site that DEP had certified as cleaned up; and
• perhaps the most notorious Kiddie Kolllege case, where 60 toddlers were poisoned by high levels of toxic mercury in a South Jersey daycare center where DEP failed to enforce a 1995 cleanup Order.

The public outrage and media frenzy generated by these fiasco’s forced the Corzine Administration to make changes.

But instead of beefing up DEP oversight and enforcement and strengthening cleanup laws to hold polluters accountable, the Corzine adminsitration sided with the polluters and advocated privatization of the DEP cleanup program.

The documented failures of DEP’s cleanup program led to the 2009 passage - despite strong opposition by environmental groups (and myself) – of the Orwellian titled “Site Remediation Reform Act” (SRRA) and creation of privatized “Licensed Site Professionals” (LSPs) to control cleanup decisions. LSP’s would control cleanups, instead of DEP. 

The risks and conflicts of interest created by allowing LSP’s, who work as private paid consultants to the polluters who caused the problem or to developers seeking to minimize cleanup costs – the proverbial fox in the henhouse - to replace DEP oversight, led to the inclusion of several safeguards in SRRA to prevent and minimize obvious potential abuses.

The Seven Deadly Sins – SRRA Safeguards Being Dismantled by Christie

But the safeguards included in the SRRA are now systematically being dismantled by the Christie Administration, with a little help from their polluting friends, as noted in the  Bergen Record article.

Here’s a quick rundown of each safeguard – and keep in mind the Governor’s “common sense” judgement rule when considering them. 

1. Science based Remedial Priority System (RPS) drives the process and informs the public

Since 1982, NJ DEP was legally required to develop a system to rank toxic sites based on their risks to public health and the environment.

Although for almost 30 years, DEP repeated the mantra that they were cleaning up “the worst first”, DEP never developed this system or a Statewide risk based ranking list of NJ’s over 25,000 toxic sites.

This was done intentionally, to allow politics and economics to drive cleanup decisions and to keep poisoned communities and residents in the dark about toxic threats.

But all those 2005 fiasco’s forced DEP Commisioner Lisa Jackson to address longstanding basic problems in DEP cleanup oversight.

On Octber 26, 2006, Jackson kicked off the legislative reform hearings with this testimony: 

The DEP is taking steps internally to help prevent residents of the State of New Jersey from exposure to contamination from regulated sites. The most important thing we are doing is developing a new ranking system to prioritize sites so that we focus our resources on the worst cases; those that present the greatest risks to public health and the environment. 

Let me repeat that: DEP Commissioner Jackson called the ranking system “the most important thing” DEP was doing.

Although such a priority ranking system was mandated way back in 1982, Jackson’s testimony led to a mandate in the SRRA that required DEP to finally issue a “Remedial Priority System” (RPS) by May 7, 2010.

The RPS was supposed to be the basis to classsify sites based on risk to public health and the environment.

The low and moderate risk cases would be assigned to the new LPS’s, while DEP would retain the high risk cases.

The problem is, the RPS never got done. DEP still has no priorities, DEP is still flying blind, and DEP is blindly assigning cases to LSPs.

This failure eviscerates an essential safeguard build into the SRRA.

This gross mismanagement is occuring under the careful watch of so called private sector manager Bob Martin, whose DEP vision statement says:

Direct DEP’s resources to DEP’s priorities. The DEP must dedicate resources to its top priorities, those that accomplish our mission while eliminating unnecessary programs.

[Update – for those who trust but verify – here’s the law DEP is flouting on RPS: SRRA Section 39:(PL 2009, c.60 – enacted on May 7, 2009) 

2. The department shall prepare and maintain a database that lists all known hazardous discharge sites, cases, and areas of concern. The database shall comprise an inventory of all the known hazardous discharge sites, cases, and areas of concern in the State. No later than one year after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.) the department shall establish a ranking system that establishes categories in which to rank sites based upon the level of risk to the public health, safety, or the environment, the length of time the site has been undergoing remediation, the economic impact of the contaminated site on the municipality and on surrounding property, and any other factors deemed relevant by the department. The database shall include information concerning each site that identifies the location of the known or suspected contaminated site, the status of the remediation, the contaminants of concern, and whether institutional or engineering controls are in use at the site. The department shall provide public access to reports from the database on its internet website.

To provide another example of just how corrupt DEP is, notice that DEP’s excerpt of this section of the SRRA Act conveniently deleted the one year deadline. That deletion certainly was no accident.

2. DEP was supposed tp retain Direct Oversight of High risks sites that pose greatest risks to public health and environment

(see point #1 above – and this for an illustration of an important category of high risk cases that DEP has assigned to private LSP’s. 

Because there is no priority system in place, it is simply impossible to know if DEP is retaining the high risk cases.

I’d sure like to know if there is a high  risk site in my neighborhood, and so would thousands of NJ residents and local officials. So where is the RPS list?

3. LSP must meet existing strict cleanup standards and technical requirements, which are preserved and off the table

 See the Bergen Record story for how the cleanup standards and technical requirements are being dismantled.

The bait and switch is happening as we speak. 

As soon as the ink was dry on the polluters’ legisaltive victory in passage of SRRA, then went inside at DEP and the LSP Board and strarting writing and weakening the rules.

As a result, we now have the worst of all worlds – privatization without enforceable regulatory standards.

In addition, making things even worse, DEP is not only giving polluters and consultants a blank check to draft new rules, they are making current regulatory requirement voluntary, not enforceable by putting them in guidance documents.

This is kind of like eliminating speed limits and asking the truckers to use their best judgement about how fast to drive.  See this for the details.

4. Mandatory cleanup schedules assure that sites actually get cleaned up and LSPs and polluters are held accountable

The SRRA required that DEP set mandatory cleanup standards, so that long delayed sites finally get cleaned up.

DEP initially took a step towards doing that, but those mandates were opposed by polluters and LSP’s.

So, DEP simply eliminated prior mandatory schedules  for components of the cleanup process, and never even proposed deadlines for cleanup.

Instead, DEP sought to provide a “safety cushion” in case LSP’s missed deadlines – DEP even used the word “safety cushion” to describe the proposal. See this for details.

5.  Rigorous technical compliance audits will hold LSP accountable and serve as deterrent to fraud

The LSP audit standards are a joke.

They are a paper checklist review, that does not look behind paper certifications by LSPs to find and confirm facts and hold LSP’s accountable to their certifications.

Keep in mid that LSP’s are given the power to self certify sites as clean, with no DEP oversight. LSP’s have the power to release their polluter clients from legal liability for any more cleanup. Once an LSP issues a certification that a site is clean, it because essentially impossible for the State to sue the polluter (the LSP certification provides a covenant not to sue) or require full cleanup.

These are extraordinary powers, with many millions of dollars and thousands of lives at stake.

And to top of this outrageous scheme that shocks the conscience, the audits and other LSP Board oversight function are being written by political contributors and consulting firms with conflicts of interest – see this for details.

[Note: LSP’s have police powers, i.e. they effectively determine regulatory compliance. Public health has now become a matter of opinion! Here’s the text off SRRA:

d. Upon completion of the remediation, the licensed site remediation professional shall issue a response action outcome to the person responsible for conducting the remediation when, in the opinion of the licensed site remediation professional, the site has been remediated so that it is in compliance with all applicable statutes, rules and regulations protective of public health and safety and the environment. The licensed site remediation professional shall file the response action outcome with the department when it is issued to the person responsible for conducting the remediation.6. DEP oversight/enforcement and the LSP Board Professional Discipine oversight will keep LSP’s honest and weed out bad apples

 

 The LSP Board is a fraud and a sham – see this “strange interlude” for the details.

DEP has pledged that there will be no “shalls, have to’s or musts” -(that’s a quote in legislative testimony of DEP Director Dave Sweeney on December 9, 2010 to the Senate Envrionment Committee).

Instead of “command and control” mandates, DEP will rely on compliance assistance and kind requests to guide the use of “best professional hjjudgement by the LSP’s.

Thus, there is no DEP enforcement. And thus no deterrence.

That amounts to an invitation to abuse.

7.  LSP’s are given low risk, simple, and/or quick cleanup sites (e.g. residential USTs).

DEP has no RPS ranking system, and thus has no risk based priorities. Thus, there is no assurancee that LSP’s get only low andmoderate risk cases, adn not high risk cases. See #1 above

So, does the DEP pass the straight face test with all this?

It’s just common sense, right?