WolfeNotes.com

DEP Commissioner Martin Reflects on First Two Years

With headlines like that, I reveal my age. But, I’m talking about work – never on Sunday!

However, I need to bang out [no pun] a quick rebuttal of DEP Commissioner Martin’s “midway” “Q&A” interview with the Star Ledger editorial folks, which was published today.

Martin actually did a very good job spinning a disastrous record. He has greatly improved in his first 2 years in office, in terms of getting the DEP programs straight and delivering a message.

Martin’s early efforts were awkward and the attempts to rigidly “stay on message” came off like transparent spin. But now, he’s effectively managed to integrate the spin into the DEP program lingo, a much more convincing package.

Martin speaks confidently and forcefully. So now, his use of the correct terminology enables a fairly solid rhetorical defense.

Piercing that defense requires that the critic be both substantively informed and adversarial, something very few media professionals and legislators have the time for. Few seem willing to get in this Administration’s face and push back on the bullshit.

So, I thought I’d take a brief shot at laying out the policy criticisms that are implicit in Tom Moran’s set of mostly critical questions and rebut some of Martin’s spin.

Moran was prepared and did a reasonably good job on the questions. But his role in the interview was to give the Administration an opportunity to reflect on the first two years and to provide a platform to defend themselves from increasingly harsh criticisms by environmentalists, legislators and media. Moran’s style and purpose was not to push back against Martin’s claims.

I) Waiver rule

Martin is trying to rename and thereby reframe the waiver rule as akin to a local land use variance – as if he merely renamed the waiver rule the problems would magically disappear (“If we could rename it, we’d call it the variance rule”).

But, to paraphrase the Bard, a turd by any other name is still a turd.

Substantively, Martin continues to mislead by claiming “public emergencies” justify the waiver rule.

But Martin and the Governor don’t need a rule to respond to real emergencies – they already have that power under a Governor’s Emergency Declaration or a Commissioner’s Administrative Order.

Martin was asked to provide an example – his use of flood hazard and site remediation regulations does not make sense (unless Martin has been talking to Pfizer about their plan to leave lots of toxic waste in the Raritan River floodplain at the former American Cyanamid site!).

The objectives of the Flood hazard rules are not in conflict with cleanup – unless Martin is talking about the buffer requirements, which do restrict disturbance and therefore could impact a cleanup.

But the answer to those kind of site specific regulatory conflicts is for the DEP experts to navigate them on a case-by-case basis and craft a workable solution, or to fix the underlying conflicts in the rules themselves. These internal solutions keep DEP in control of the solutions and  assure that any conflicting or competing regulatory objectives are harmonized in a way that maintains environmental safeguards.

There is no need for a waiver rule to provide a flexible, effective, and protective solution.

In contrast to internal DEP resolution, a waiver rule puts control in the hands of the engineers and lawyers for the permittee (applicant/developer), and virtually assures that any “solution” will be driven by economic concerns and surely will undermine environmental safeguards.

II) Transparency – Campaign finance

Martin thinks that website posting of waivers will resolve the fundamental conflicts that will be created by the waiver rule. This is nonsense.

[Update: we told you so: today the Star Ledger’s Auditor reports: Lines already forming for new DEP waiver rule?]

As Moran question notes, there is total lack of transparency on the front end – e.g. from political donations and back room interventions.

Political interventions at DEP occur – as recent criminal indictments of NJ Legislators Van Pelt and Smith have shown – through things like phonce calls and off the record informal meetings in diners where cash changes hands.

New Offices Governor Christie created (e.g. Lt. Governor’s Red Tape reports, Business action center, etc) have made these kind of persistent political problems far worse.

The waiver rule provides the mechanism for the political deal to go though without fingerprints, exactly the opposite of the transparency Martin speaks of.

Before the waiver rule existed, the politicians ran a real risk because the corrupt political deal required a violation of the DEP regulations. That violation could be revealed by a whistleblower, or an intrepid journalist, or expert environmental lawyer or activist.

That detection risk no longer exists as a result of the waive rule.

The deals now comply with the regulations. It is now open season on corruption.

III) Air pollution – Midwestern Coal plant litigation strategy

Martin does not respond to Moran’s question, which exposes the absurdity of Martin’s strategy to invest legal resources in individual plant by plant litigation, as opposed to a blanket EPA rule that applies to ALL plants.

The EPA regulatory approach is faster and far more efficient and cost effective  than Martin’s approach. This is obvious!

IV) Barnegat Bay

Moran did a nice job in exposing fatal flaws in Christie’s BB “10 point plan”, e.g. it

• fails to include development restrictions
• actually promotes new development by blocking the removal of environmentally sensitive lands from sewer service areas, which would have occurred under the old DEP WQMP rules, and weakening the enforcement of CAFRA and C1 buffer rules.
• fails to fund necessary infrastructure and storm water management requirements

The only important issues left out was the Governor’s veto of the TMDL bill and Martin’s delegation of DEP science to the new Science Advisory Board. We’ve written about these issues in detail and thus will not repeat all that here.

V) Budget – clean energy diversions

Martin has no reply – Moran could have made this question even stronger by pointing out prior budget diversions of clean energy funds (and termination of RGGI, which while it had no impact on GHG emissions, did fund clean energy).

The Christie Energy Master Plan also erects new “cost benefit” barriers to clean energy and mounts a sham across the board attack on so called renewable “subsidies” and excessively high energy costs due to public policy (a masked attack on the Societal Benefits Charge and a broad array of longstanding energy efficiency and conservation policies).

And, there are many other important DEP budget and parks issues are not addressed.

VI) Fracking

Moran made a technical error and missed the key issue here.

Correcting the error, the threat to NJ from NY and Pennyslvania fracking is NOT from groundwater.

Primary threats to NJ come from risks to: 1) Delaware River water quality; 2) diversions of billions of gallons of Delaware River basin waters to the water intensive fracking use; 3) importation of toxic fracking wastewater to NJ; 4) pipelines: 5) air pollution; and 6) undermining NJ policy and economic investments in global warming mitigation strategies and energy conservation and renewables, as the short term artificially low price of natural gas destroys the economics.

By missing these key issues, Moran allows Martin to spin about what is going on at DRBC.

Contrary to what Marin says, Christie and Martin are PROMOTING fracking via DRBC and are willing to permit NJ wastewater management.

I blame the ENGO;’s for not making this argument because they are misdirected and focused on a symbolic in-state fracking ban bill.

This is what happens when politics and ENGO campaign priorities trump policy.

VII) Water Quality Management Planning rules

That issue has gotten plenty of attention and Moran’s question really goes unanswered.

VIII) Below the radar developments

Martin takes credit for air pollution initiatives (peaking plants) and keeping the parks open.

I have not followed closely either one, so will provide a critical analysis on both soon.

Martin closes with this statement:

I wake up every morning focused on protecting the air, land, water and natural resources of this state. That’s my priority.

That, my friends, is one crock of bullshit.

It contradicts Governor Christie’s Execuive Orders, Lt. Governor Red Tape Reports, and Martin’s own Administrative Orders, vision statement, regulatory policy, and numerous press statements about “changing DEP culture” and corrupting DEP’s mission to “promote economic development” and provide better “customer service”.

Harvard Blows Out Big Red 6-1

[Update: 3/20/12 – here’s some real hockey fans! Watch, as she says “Yes”!]

Last night, I made the annual pilgrimage to the ECAC hockey tournament, as I have since spring of 1976 in Boston Garden.

The ECAC tournament has migrated over the years from Boston Garden, to Lake Placid (my favorite venue), to Albany NY (the pits). Last year, the tournament began a 3 year stint in Atlantic City.

Atlantic City has not been kind to Cornell goalie Andy Iles, one of the top goalies in the country who is backed by a defense that allowed the second fewest total goals against in the nation this year.

In last year’s championship game, he was chased out after Yale scored 5 unanswered goals in a 7-0 blowout.

Last night, in the semifinal round, he again allowed weak early goals as Harvard crushed Cornell 6-1.

The Big Red were awful and avoided another embarrassing Atlantic City shutout with a goal with a minute left in the game.

It was a long night and not pretty. It was so sickening, I couldn’t even shoot photos.

Governor Christie’s Puppets Fire Highlands Council Director

[Update 3 – 3/18/12 – Tom Moran at the Star Ledger nails it: The Highlands Council’s Dirty Shame]

Update 2 below]

Update 1 : Mike Catania has a superb Op-Ed at NJ Spotlight, highly recommended:(hit link)  “The Thursday Night Massacre – Gov. Christie makes his move to undo the Highlands Act“– end update]

Eileen Swan, Executive Director of the NJ Highlands Council since 2007 – despite glowing praise from virtually all quarters for her effective performance as Executive Director – nonetheless was fired tonight by a shameful 9-5 vote of Governor Christie’s political hacks.

Immediately following the vote, Tom Borden, Deputy Director and Chief Counsel to the Council, resigned in protest, unable to continue in that role “in good conscience” he said.

It has been obvious from the outset – even before Governor Christie was sworn into office – that the Governor is hell bent on gutting the Act and promoting development that is inconsistent with the Act.

His Transition Reports, Red Tape Reports, Executive Orders, Highlands Council appointments, and public statements have provided a steady drumbeat of attacks on the Act and the Regional Master Plan.

Tonight, the public testimony supporting Swan was some of the harshest I’ve ever witnessed. Here’s a taste:

• “This is a shameful day”, Julia Sommers, Highlands Coalition
• “Politics ruled this decision”, former Council member Kovachs
• “This is a test of the Council’s independence and integrity”, Wilma Frey, NJ Conservation Foundation
• “This is a sad day for the Highlands” Kate Millsaps, Sierra Club
• “Anyone who tells you that the Highlands Act can not accommodate economic growth is lying” Scott Olson, Deputy Mayor, Byram Township
• “Eileen is not the problem. Removing an effective leader is not an honest approach”, Michele Byers, NJ Conservation Foundation
• “This is the most gutless move I’ve seen in my 37 years of government service. It would compromise the integrity, ethics, and conscience of the Council. It is unconscionable.”, Council member Dressler
• “This is the death knell for the Council and the Master Plan” Councilman Dressler
• “A national model of regional land use management is being replaced by a national disgrace.” Tracy Carlucchio, Council member
• “I object to the Governor’s office forcing this vote. This is dirty politics. I don’t like it and it is not good for the people of NJ” Council member Sebetich
• “Eileen Swan has more integrity than anyone up here. This is nasty, dirty politics.” Councilman Richco
• “The lack of transparency and political intervention by the Governor is redolent of Soviet style governance” Bill Wolfe (see the Morris Daily Record story)

The vote was expected, coming after days of media coverage and extremely harsh editorial criticism of the Governor’s strong armed tactics and the Council’s lack of a backbone.

Today’s Star Ledger editorial nailed it:

N.J. Gov. Chris Christie moves to fire a Highlands Council director he can’t control

Give Gov. Chris Christie this much: He has been clear from the start that he is hostile toward the Highlands Act.

But he can’t kill it outright, because Democrats in the Legislature won’t let him. So he is doing it by stealth, appointing council members who have stated explicitly that they oppose the law they are charged to enforce.

Now, the fight is taking an ugly new turn. Eileen Swan, a voice of reason in the battle between preservation and development, is likely to be fired today as the council’s executive director, at the governor’s request. […]

The Highlands Act is probably the single most important piece of environmental legislation to pass during the past decade. It limits development in nearly 1 million acres of land across the northern part of the state, protecting the water supply to 5 million people.

If the governor doesn’t like the law, he should propose changes. To sabotage its enforcement by firing someone with Swan’s energy and integrity is simply wrong.

Let’s repeat that: simply wrong. Period.

I testified in opposition to the move, noting that such vote would destroy the independence and integrity of the Council, and set a horrible precedent for politicization of professional positions.

The move to fire Swan was shamefully engineered by the Governor’s Office, acting through Christie’s loyal appointed lapdog Highlands Council Chairman James Rille.

At Rilee’s Senate confirmation hearing, I questioned Rilee’s veracity and integrity – his behavior tonight confirmed those criticisms.

Rilee responded to questions by Councilman Dressler asking why Swan was being fired. Rilee said he was involved and had problems with Swan BEFORE he joined the Council.

Of course, Rilee didn’t say that at his Senate Judiciary Committee confirmation hearing. Because he swore an oath to tell the whole truth, he misled the Committee and was confirmed under false pretenses.

I’ll provide the media coverage tomorrow – too tired to finish this post tonight.

But the bottom line is that Governor Christie’s bullying style, his abuse of Executive power, and the worst kind of partisan patronage hack politics prevailed over protection of the water supply of 5 million people, the integrity of the Council and the Regional Master Plan, and longstanding norms of professionalism and the larger public interest.

And that is truly shameful.

[Update: I need to make a few political points clear.

Chairman Rilee and Governor Christie’s other appointments of opponents of the Highlands Act would NOT have happened without the support of Democratic Senate President Sweeney.

Obviously, Sweeney cut some sort of dirty political deal with Christie to support his slate of nominees in exchange for god knows what. Sweeney then muscled the Judiciary Committee to approve Christie’s clearly unqualified and hostile nominees.

This is Dirty NJ politics, at its worst.

Council members swore an oath to implement the Highlands Act, not a loyalty oath to Governor Christie.

And while we are on the topic of Democrats, I also must note that Corzine shares some responsibility for this debacle as well.

His installment of Adam Zellner as the Council’s Executive Director allowed current Vice Chairman Kurt Alstede last night to correctly say that the Director’s position always was political.

There is a huge difference, however, when a political appointee is installed to dismantle the Act, instead of enforce it. Zellner was NOT there to dismantle the Act – but Christie’s guy will be.

Which leads to my final point.

As I testified last night, the Highlands Act mandates that the Executive Director:

“shall be a person qualified by training and experience to perform the duties of the office”

That’s the standard that Swan’s replacement must meet. We will be watching.

[Note – speaking of watching, Eliot Ruga filmed the complete hearing – you can watch it here.]

Never Has So Much ENGO Effort Been So Cynically Mis-directed

RGGI Has No Measurable Impact on Greenhouse Gas Emissions

Frank Brille over at EnviroPolitics blog reports that tomorrow (3/15) is “Clean Energy Lobby Day” in Trenton.

Oh, Beware the Ides of March! my intrepid lobbyists!

Apparently, the lobbying focus is on RGGI, which not coincidentally coincides with Democratic leadership efforts to post a vote in both Houses on a symbolic gesture of a bill (A/1998/S1322. (we’re sure Waldo’s heart bleeds for RGGI). As Frank archly notes:

RGGI showdown votes in both houses tomorrow

Democratic leaders in both the Senate and Assembly, eager to confront Republican Governor Chris Christie on the RGGI issue, have posted both bills for floor votes tomorrow.  …

Even if both measures pass, the governor is almost guaranteed to veto them and, with Republican legislators generally agreeing with their guy in the front office, a veto override vote is all but guaranteed to fail.

Frank is a gentleman, so he gives Dave Pringle the lede quote and just enough rope to hang himself.

But, aside from Pringle and the cynical Kabuki by the Dems, still, I thought all those intrepid young lobbyists might want to be armed with a few facts as they take on hostile legislators.

Knowing how internet savvy these kids are, we provide a veritable roadmap homework assignment – be sure to hit all the links!

For those who prefer visual message formats, we have a great 9 minute YouTube video for you to watch to buck you up before you enter the Trenton lion’s den.

It’s by 2 EPA enforcement attorneys with over 40 years experience in cap and trade programs.

As whistleblowers, they felt so strongly about the issue that they risked their careers and reputations to speak out – an example of having the courage of your convictions and a willingness to make personal sacrifice for the truth and the public interest.

So watch: “The Huge Mistake”.

You can watch the news coverage of the issue by Democracy Now! Part One and Part Two.

Read the Washington Post Op-Ed:  “The Mirage of Cap and Trade“

But don’t stop there!

For those who are influenced by celebrity, we have THE global warming rock star, Dr. James Hansen, the world’s foremost global warming scientist. I joined Dr. Hansen in a protest at Bank of America, two years before Occupy Wall Street. According to Dr. Hansen:

“Cap and trade with offsets would guarantee that we pass climate tipping points, locking in climate disasters for our children. Cap and trade benefits only Wall Street and polluters, sacrificing humanity and nature for their profits.” Dr. Jim Hansen (11/30/09)

For the political junkies, we explain the politics:

• Greenhouse Gas Emissions Story Lost in the Smoke
• Christie RGGI Withdrawal Slammed at Trenton Hearing
• Another Obama EPA Backtrack On Greenhouse Gas Regulation
• Collapse of Cap & Trade Is A Good Thing – But for All The Wrong Reasons

And for the analytical types out there, read the policy papers and EPA whistleblower  Report to Congress:

“Our disclosure is drafted in the context of warnings by NASA scientists that levels of GHGs in the atmosphere have reached unsafe levels. In May 2009, MIT researchers concluded that “without rapid and massive action” to reduce GHG emissions, dangerous increases in global temperatures are inevitable. The National Science Foundation announced in March 2010 that the East Siberian Arctic Shelf, long thought to be an impermeable barrier, is perforated and beginning to leak large amounts of methane, a powerful GHG, into the atmosphere from melting permafrost below. The announcement states, “[r]elease of even a fraction of the methane stored in the shelf could trigger abrupt climate warming.”

While the United States cannot successfully address climate change alone, a continuing U.S. failure to adopt effective domestic climate strategies weakens the chances of effective international action. Our country’s ability to help forge an effective international effort is dependent on showing that the U.S. can adopt a sustainable path at home. Our request for a careful, unbiased investigation of the flaws of GHG offsets is rooted in the reality that enacting ineffective programs to address climate change is likely to have extremely serious consequences for public health and the environment, as well as the economy and national security.

See: Request for Investigation by U.S. Congress

Problem: Disclosure of Unfixable Flaws of Greenhouse Gas Offsets in Proposed U.S. Climate Legislation

Impact: Misleading the Public; Implications for Proposed Climate Legislation; Waste, Fraud and Abuse of Public Funds and Public Trust

 

But, we saved the best for last.

For the data freaks who have been mislead into supporting RGGI, we are truly sorry to burst your bubble.

You don’t have to believe the numbers and commitments of the RGGI Agreement itself, or Environment Northeast’s analyses, or DEP statements, or the Governor’s CV, or my testimony (starts at 9:13) and all that I’ve written over the last 3 years, or independent energy expert testimony that RGGI so called “emissions caps” are 30% ABOVE current emissions and that RGGI would produce ONLY a 1% “reduction”over business as usual over its 20 years.

According to DEP’s GHG emissions inventory and 2009 Report to the Legislature, total NJ GHG emissions in 2004 were 137 million metric tons.

For context, we note that Environment NJ is supporting RGGI on the basis that it indirectly allegedly “reduced” GHG emissions by avoided consumption by 13,100 tons per year as a result in 50% capital investments in certain combined heat and power and solar systems.

So, even if accurate, that is just 0.05% – no typo – 5 one hundredths of 1 % of NJ’s RGGI GHG allowances (22,892,730).

Worse, claimed RGGI reductions are just 0.009% – that’s 9 one thousands of 1 % of total NJ GHG emissions.

How on earth can anyone call that literally unmeasurable performance- just 9 one thousands of 1% – “one of NJ’s most effective pollution control programs”?

Good luck with your lobby day – you could do better spending the day at the beach picking up garbage.

[Update 1: Oh, and did I mention that the RGGI bill was OPPOSED by environmental groups at the time of its final passage ? (i.e. opposed by Environment NJ, Sierra and NJEF). And that the bill was severely criticized by editorials in the Bergen Record, Star Ledger and Courier News? See: Lame Global Warming Bill Goes to the Governor

[Update 2 – Here is RGGI NJ statutory objective – which it clearly has not met:

Based on documents we obtained in a Freedom of Information Act (FOIA) lawsuit against EPA, we visited the Selecto Flash site, took some photos, and recently wrote about a pending EPA Superfund listing decision in West Orange (see: Will West Orange Site Be NJ’s Next Superfund?

But, as has become all too typical, that disclosure was ignored by the NJ press corps, who seem to be too busy with other important matters, like Snooki and Governor Christie’s latest insults.

So, surprise, surprise, again our disclosures were credible and EPA yesterday announced the proposed Superfund listing decision we wrote about.

Too bad the press corps ignored us, as their next day reporting is the typical lazy, shallow crap – basically stenography of the EPA press release backed up by a quick phone call to Mr. Sound bite, Jeff Tittel (see: Polluted valley on border of Orange and West Orange may be designated as Superfund site

But even EPA’s vague press release (e.g. targeting a natural feature like a “valley”? instead of specific sites or polluters?) is revealing and suggests avenues for critical questions from a real journalist on a deadline – both in terms of what it says, and what it omits:

(New York, N.Y. – March 13, 2012) The U.S. Environmental Protection Agency today proposed adding the Orange Valley Regional Ground Water site in Orange and West Orange, New Jersey to its Superfund National Priorities List of the country’s most hazardous waste sites. Ground water under the site, which includes heavily populated urban and suburban areas of Orange and West Orange, is contaminated with the chemicals tetrachloroethylene or PCE, trichloroethylene or TCE and cis-1,2-dichloroethylene. Exposure to PCE, TCE and cis-1,2-dichloroethylene, which are common industrial solvents, can have serious effects on people’s health including liver damage and an increased risk of cancer. The ground water contamination has impacted public wells used to supply drinking water to local residents. Some of the wells have been taken out of service and water from others is treated to remove the contamination and provide the community with water that is safe to drink.

First, let’s look at a few important issues EPA failed to mention.

I) Failure to Consider Vapor Intrusion Risks

EPA notes the “heavily populated urban and suburban areas”. Doesn’t that raise red flags?

The chemicals in groundwater are volatile organic solvents that can migrate into buildings and poison people – maybe the Star Ledger has not heard of “vapor intrusion”? (See: Living in the Toxic “Threat Zone”)

EPA will not mention those risk for several reasons: 1) because the Superfund program does NOT allow vapor risks to be considered in listing decisions, a major and embarrassing flaw; 2) because on January 6, 2011, EPA proposed to include vapor risk, which came under fire by powerful chemical lobbyists and EPA is now running away from it; 3) because EPA probably didn’t even sample homes to find out if there are vapor problems; 4) because it would alarm people and EPA avoids controversy; and 5) EPA has no program to reduce and regulate risks from hazardous air pollutants (air toxics) so they don’t want to even talk about those kind of risks.

II) Failure to Conduct An Environmental Justice Review

If a reporter were to spend just 5 minutes reading the real EPA regulatory documents (instead of relying totally on just the press release spin), they would see that there is virtually no site specific information and that EPA did not conduct an environmental justice (EJ) review.

I visited the site and walked the neighborhood and saw a lot of poor, hispanic, and black people who live there and are impacted, so I can assure readers that there are real EJ issues on the ground.

But just read the absurd basis EPA uses to avoid an EJ review: they claim that the EJ requirements do not apply because a Superfund listing decision “will neither increase nor decrease environmental protection.”

Whaaaat? Are you kidding me? A Superfund cleanup has no impact?

III) Why was This Site Proposed to Be Listed, While 35 Other NJ Sites That Qualify for Superfund Have Been Ignored?

Hmm, consider this:

EPA DISCLOSES NINE MORE SUPERFUND-ELIGIBLE SITES IN NEW JERSEY – Thirty Five Sites Passed Over for Superfund Relief; One More Site Still Pending

Now, let’s examine what EPA did say:

The ground water pollution has impacted several public water supply wells. The Orange Park and Gist Place wells serve a combined population of more than 10,000 people. After discovering the contamination in the early 1980s, the Orange Water Department installed a treatment system on the wells to remove the contaminants and provide the community with safe drinking water. Water from these wells is regularly monitored to ensure that the treatment system is effective and that people’s health continues to be protected. The former Brook Lane public supply well, which is located between the Orange Park and Gist Place wells, was taken out of service to protect the public from the contamination.

In 2011, the New Jersey Department of Environmental Protection asked EPA to consider the Orange Valley Regional Ground Water site for inclusion on the federal Superfund list. EPA conducted an initial assessment and is today proposing that the site be included on the list. The EPA is continuing its investigation to identify sources of the ground water contamination.

Does that chronology not open the door to a series of critical questions like: 1) who knew what when, 2) how was the problem was discovered, 3) how long people were exposed, 4) why weren’t people warned, 5) Why did it take it until 2011 for NJ DEP to request EPA Superfund designation, etc. (read our disclosure and note EPA did HRS back in 2009).