Archive for May, 2013

This is What Vindication Looks Like

May 28th, 2013 No comments

Regular readers know that we’ve been writing about this for many months, so it’s gratifying when the main stream media comes around to share critical elements of that point of view.

We were the source to the original WNYC December story that began their investigative work too – my only complaint is that the investigation thus far has been too narrow in scope and only examined the performance of NJ Transit, as opposed to the DEP, as I’ve been ranting about.

Let’s hope some intrepid reporter out there follows the blood in the water to the NJ DEP source!

So, here’s the  Star Ledger Sunday May 26, 2013 editorial below, printed in full, without their permission, of course!

Christie won’t admit failure on Hurricane Sandy plan

By Star-Ledger Editorial Board
on May 26, 2013 at 5:59 AM

Gov. Chris Christie looked like the picture of preparedness in his embroidered fleece pullover, as Hurricane Sandy barreled toward our shore. “We have to be prepared for the worst here,” he told us sternly on TV.

But his tone was markedly different last week when confronted with a damning investigative report by The Record of North Jersey and WNYC radio that found New Jersey was, in fact, woefully unprepared for Sandy compared with New York.

Should our state have done more to adapt for the impact of climate change before the hurricane hit?

No, Christie said: “ ’Cause I don’t think there’s been any proof thus far that Sandy was caused by climate change.”

Hours later, an Oklahoma town got torn to smithereens by a massive tornado. Christie is technically correct that we can’t say with certainty that any single weather event is a direct effect of climate change. But that’s an incredibly weak excuse not to prepare better.

Extreme weather is getting worse and more frequent, and we’ve seen the consequences of not facing scientific reality. Look at the aftermath of Hurricane Sandy: New York’s Metropolitan Transportation Authority suffered great damage, but saw only 19 of its 8,000 rail cars flooded. NJ Transit, on the other hand, had more than a quarter of its fleet engulfed in low-lying yards, which cost more than $120 million in damage.

Why such a difference? Because, as this investigative report lays out, New York’s MTA took climate change seriously, and adapted its procedures based on worsening weather trends. NJ Transit did not.

MTA had a climate change study that warned of higher storm surges, and a detailed hurricane plan that spanned five thick binders. NJ Transit’s plan, which did not account for climate change, resembled a 3½-page book report — in which someone blacked out every single word before releasing it to the public.

When a WNYC reporter asked the governor for his reaction to this, he attacked the messenger. “Liberal public radio always has an agenda,” he snapped.

That was Christie’s only response to an exhaustive review of documents and dozens of interviews, which revealed NJ Transit officials showed up only sporadically to meetings on climate change planning, and didn’t prepare enough for extreme weather. They based their decision not to relocate trains to higher ground on past experience, gambling against a 10 to 20 percent chance of a storm surge.

But that misses the whole point of planning based on climate change. Extreme weather does not mimic the past. It gets measurably worse. NJ Transit didn’t understand the risk, and we saw how well that turned out: with millions of dollars in damage to hundreds of train cars and locomotives.

New York Gov. Andrew Cuomo said part of Sandy’s lesson was “the recognition that climate change is a reality, extreme weather is a reality, it is a reality that we are vulnerable.”

Too bad our governor prefers to take shelter with the deniers and blame it all on bad luck. Christie’s sounded reasonable on climate change in the past. But as we get closer to the 2016 presidential race, brace yourself for more nonsense like this.

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Emergency Responders Sue Over Chemical Exposures From Toxic Train Crash

May 24th, 2013 No comments

Police Officers Claim Public Was Mislead by “False and Misleading” Information

Government Allowed Railoroad and Private Consultant To Downplay Risks

Police and emergency responders exposed to unknown but potentially unsafe levels of  vinyl chloride from the Toxic Train crash in Paulsboro filed a lawsuit against the railroad.

The lawsuit provides an inside look at key aspects of the disaster, echoes several of the issues we have raised here, and breaks new legal ground.

(read the lawsuit and the full story:  First Responders in Paulsboro Chemical Spill Sue for Injuries

“The truth has not yet come out about what happened and why it happened,” said Mark Cuker, an attorney who filed the brief on behalf of 24 people, including 11 family members of the emergency personnel on the scene.

The emergency responders join several other lawsuits filed recently on behalf of hundreds of exposed people (see this and this), including one that claimed that the chemical spill caused the death of an exposed elderly woman (see: First wrongful-death lawsuit filed in Paulsboro train wreck).

All the lawsuits include withering attacks on the reckless, wanton and gross negligence and outrageous conduct of the railroad with respect to allowing hazardous cargo to be shipped through a residential community across a long known defective bridge.

Defendants’ acts and omissions are made even more horrific upon the information that defendants put safety aside for the sake of profit and maintaining a good relationship with the industrial end users of the hazardous substances aboard their train, which were released into the environment, causing harm to plaintiffs.

(here’s an example of the “good relationship” tactics employed by chemical industry and railroad officials)

All the lawsuits allege total failures in chemical emergency planning, prevention and response.

One particularly criticizes the decision not to evacuate, and instead “shelter in place” (watch NJTV coverage of that).

And all the lawsuits seek damages for adverse health effects resulting from exposure to toxic vinyl chloride gas, a known human carcinogen (and nuisance, trespass, and even assault & battery for unwanted and uninvited “touching”).

But the most recent suit by the emergency responders themselves breaks new ground in important areas, some that I’ve written about and want to mention briefly here today.

  • False and Misleading information to downplay risks

As reported by the Courier-Post:

The suit also claims the companies and their workers “misled the public about the extent of the exposure.” Mongeluzzi said Conrail “significantly downplayed” the severity of the threat while first responders were exposed to a dangerous carcinogen.

From the outset of the accident, we repeatedly wrote that there were serious breakdowns in regulatory oversight and that the Unified Command failed to disclose that vinyl chloride was a known human carcinogen; failed to disclose that this chemical was one of few chemicals with known adverse development impacts on children; failed to disclose EPA’s “acute exposure guidelines”; and applied inappropriate health screening levels upon which key decisions were based, including public information fact sheets and decisions about where and whether to evacuate or “shelter in place.

The lawsuit goes even further by alleging that monitoring data on chemical levels was withheld from the public as well as emergency responders.

  • Lack of Emergency Planning, Response and Chemical Safety Risk Management Plans

From the outset, we wrote about gaps, loopholes, and lax enforcement of federal and state chemical safety and emergency planning regulatory requirements.

The lawsuit claims:

As transporters of chemicals through populated areas, the defendants had a duty of care to have in place an emergency response plan that could protect the safety of nearby residents in the event of a derailment or other chemical spill. Part of the emergency response plan is a predictive dispersion model which can forecast the plume of contamination so as to enable an informed decision about the evacuation area. (emphasis mine)

We go beyond this and argue that the generators of those chemicals and the facilities they were destined to be delivered to have more than a mere “duty of care” – we believe that such plans are required by federal and state chemical safety laws, including local emergency management plan requirements.

We also argue that, in addition to civl duties, railroad chemical safety laws and regulations must be strengthen and enforced.

  • Inappropriate Reliance on a Private Industry Consultant with a Poor track Record

We immediately warned the public about the track record and conflicts of interests of the private consulting firm that the Unified Command was reliant upon for scientific, toxicological and public health expertise. (see: Consultant with a Horrible Record Put in Charge of Toxic Communication at Paulsboro Train Wreck

That firm, CTEH, was hired by the railroads and should not have supplanted government experts at EPA and NJ DEP.

The lawsuit correctly targets the source of the “false and misleading” information as the private consulting firm know as “CTEH”.

At all times, Defendants, their representatives and contractors,including Center for Toxicology and Environmental Health (“CTEH”) downplayed the significant of the amount and toxicity of vinyl chloride released.


Defendants and their contractors mislead the public about the extent of the exposure. Initial reports stated that by 10:30 am on November 30 the vinyl chloride had “dissipated”. On the contrary, early on the morning of December 1, firefighters responded to Officer Gentile that they had to spray water on the breached car in order to keep vinyl chloride from rising into the air, and that pockets were found in which vinyl chloride measured as high as 350 ppm.

The public statement of Dr. John Kind, Director of toxicology for CTEH released to the press that “the highest levels of vinyl chloride we have detected in the community are hundreds of times lower than the concentrations that would produce symptoms” was false and misleading.  THe statements on Defendants’ website that “concentrations of vinyl chloride within the evacuated community were not of  immediately health concern, as they are below the short term emergency response guidelines developed” by the EPA was also false and misleading.

The public deserves the full truth and answers to these questions – that’s why we called for a Coast Guard and EPA Inspector General Investigations, see:

JERSEY TOXIC SPILL FIASCO DEMANDS SECOND LOOK – Review of Evacuation and Health Warnings Confusion, Role of Corporate Consultant

EPA has declined our request, but we’ve yet to hear from the Coast Guard.

Important investigations and public policy reforms should not have to rely on private lawsuits or the courts.

[Update: 5/29/13 – Inquirer writes about railroad response and strict liability standard:  Conrail challenges claim in Paulsboro lawsuit.

If a loophole in strict liability exists for the railroad as a common carrier, that only makes the case for stricter regulation even stronger.

Regardless, even if they get off the hook from strict liability, no way they dodge gross negligence – the bridge was known to not be functioning and obviously Conrail knew they were carrying hairdos cargo. – end update


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Hunterdon County Democrat Editorial Supports “Hot Dog Man” Operation

May 24th, 2013 No comments

Wild & Scenic Given Short Shrift 

No Consideration of Public Views or Christie State Lands Lease Policy

Low Road Economic Development Strategy Wrong Path For River Corridor

Written before public hearings were held or any public debate could emerge, while purporting to seek a “balance” in public and private interests, today’s editorial from the Hunterdon County Democrat is another illustration of  the State jobs beggar thy neighbor issue and short term economistic thinking.

You can read it here:  DEP fee for park use by tubing company shouldn’t send business out of state

This may seem like a relatively small stakes minor dispute. But larger forces and issues are at play.

The Democrat’s editorial perspective fails to even consider the special features that led Congress to declare the Delaware River a Wild & Scenic River, and how those features require careful planning, management, and preservation.

In supporting the Hot Dog Man, the editorial relies on and unfortunately repeats the stale and discredited business community’s myths that protection of natural resources and the environment in NJ will drive jobs out of state, e.g. if NJ standards are set too high and cost too much to achieve, then business will move to Pennsylvania or other low cost states.

In fact, just the opposite is true: the landscape beauty, historic character, and relatively rural sense of place of the Delaware River corridor provide a regional setting that drives the region’s economy. A high quality of life attracts people and businesses, and, in turn,  economic development and higher property values.

The key is to plan and manage land use and natural resources carefully, in a way that preserves those features.

That has not bee the case with the Hot Dog Man commercial operation.

The editorial also failed to consider the new Christie State Lands Lease policy, which is driving this new DEP river access lease.

So, I fired off this quick note to Curtis Leeds, editor.

Curtis – Just read your editorial on Hot Dog Man/DEP lease issue.

Disappointed with your analysis on the following grounds:

1) Congress declared the Delaware River a Wild & Scenic River –  towns in the river corridor participated in the development of and signed on to a management plan.

The Hot Dog Man operation needs to be considered in the context of compatibility with that management plan, which includes not only impacts on the river itself, but scenic, historic, natural resources, transportation, et. al. issues

It appears that your editorial gave that set of issues short shrift.

No consistency or compatibility review has been conducted – you should call Julie Bell at the National Park Service to discuss those concerns.

My view is that this commercial operation is incompatible – I think many – including many of your readers – agree.

2) The context and driver for this is the new DEP lease/concessions policy. It inappropriately encourages commercial uses of state lands and State Parks in desperate search of revenues, while at the same time granted bargain basement low cost leases to environmentally damaging billion dollar revenue generating uses, like oil and gas pipelines and electric transmission lines.

If DEP collected market rate leases from those utility uses, then there would be no parks entrance, boat ramp access, or tuber concession fees.

Details and links to the DEP state lands lease policy can be found here:

Bill Wolfe

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This is What Leadership Looks Like

May 23rd, 2013 No comments

Echoes from California – from sea to shining sea:

Full text below (link here).

This 2008 Order produced the 2009 California Climate Adaptation Strategy

NJ has nothing of the kind and has been didling or going in reverse under Gov. Christie.

We now suffer the catastrophic consequences, which will only grow greatly over time.



WHEREAS climate change in California during the next century is expected to shift precipitation patterns, accelerate sea level rise and increase temperatures, thereby posing a serious threat to California’s economy, to the health and welfare of its population and to its natural resources; and

WHEREAS California is a leader in mitigating and reducing its greenhouse gas emissions with the 2006 Global Warming Solutions Act (Assembly Bill 32), the Low Carbon Fuel Standard (Executive Order S-01-07), the 2008 Senate Bill 375 and the Renewable Portfolio Standard; and

WHEREAS these efforts, coupled with others around the world, will slow, but not stop all long-term climate impacts to California; and

WHEREAS California must begin now to adapt and build our resiliency to coming climate changes through a thoughtful and sensible approach with local, regional, state and federal government using the best available science; and

WHEREAS there is a need for statewide consistency in planning for sea level rise; and

WHEREAS California’s water supply and coastal resources, including valuable natural habitat areas, are particularly vulnerable to sea level rise over the next century and could suffer devastating consequences if adaptive measures are not taken; and

WHEREAS the country’s longest continuously operating gauge of sea level, at Fort Point in San Francisco Bay, recorded a seven-inch rise in sea level over the 20th century thereby demonstrating the vulnerability of infrastructure and resources within the Bay; and 

WHEREAS global sea level rise for the next century is projected to rise faster than historical levels with the Intergovernmental Panel on Climate Change predicting that global sea levels will rise by between seven to 23 inches this century and some experts predicting even higher rises; and

WHEREAS while climate models predicting global sea level rise are generally understood and improving, less information is available for sea level rise projections specific to California that accounts for California’s topography, coastal erosion rates, varying land subsidence levels and tidal variations; and

WHEREAS billions of dollars in state funding for infrastructure and resource management projects are currently being encumbered in areas that are potentially vulnerable to future sea level rise; and

WHEREAS safety, maintenance and operational efforts on existing infrastructure projects are critical to public safety and the economy of the state; and

WHEREAS the longer that California delays planning and adapting to sea level rise the more expensive and difficult adaptation will be; and

WHEREAS the California Resources Agency is a member of the California Climate Action Team and is leading efforts to develop and implement policy solutions related to climate change adaptation regarding current and projected effects of climate change; and

WHEREAS the Department of Water Resources (DWR) is responsible for managing the state’s water resources to benefit the people of California, and to protect, restore and enhance the natural and human environments; and

WHEREAS California’s coastal management agencies such as the California Coastal Commission, the California Ocean Protection Council (OPC) and California State Parks are charged with managing and protecting the ocean and coastal resources of the state; and

WHEREAS the California Energy Commission’s (CEC) Public Interest Energy Research Program has funded research on climate change since 2001 including funding the development of preliminary sea level rise projections for the San Francisco Bay area by the Scripps Institution of Oceanography/University of California at San Diego.

NOW, THEREFORE, I, ARNOLD SCHWARZENEGGER, Governor of the State of California, by virtue of the power vested in me by the Constitution and statutes of the State of California, do hereby order effective immediately:

1.    The California Resources Agency, in cooperation with DWR, CEC, California’s coastal management agencies, and the OPC, shall request that the National Academy of Sciences (NAS) convene an independent panel to complete the first California Sea Level Rise Assessment Report and initiate, within 60 days after the signing of this Order, an independent sea level rise science and policy committee made up of state, national and international experts.

2.    By March 31, 2009, the OPC, DWR and the CEC, in coordination with other state agencies, shall hold a public workshop to gather policy-relevant information specific to California for use in preparing the Sea Level Rise Assessment Report and to raise state awareness of sea level rise impacts.

3.    The California Resources Agency shall request that the final Sea Level Rise Assessment Report be completed as soon as possible but no later than December 1, 2010.  The final Sea Level Rise Assessment Report will advise how California should plan for future sea level rise.  The report should include: (1) relative sea level rise projections specific to California, taking into account issues such as coastal erosion rates, tidal impacts, El Niño and La Niña events, storm surge and land subsidence rates; (2) the range of uncertainty in selected sea level rise projections; (3) a synthesis of existing information on projected sea level rise impacts to state infrastructure (such as roads, public facilities and beaches), natural areas, and coastal and marine ecosystems; and (4) a discussion of future research needs regarding sea level rise for California.

4.    The OPC shall work with DWR, the CEC, California’s coastal management agencies and the State Water Resources Control Board to conduct a review of the NAS assessment every two years or as necessary.

5.    I direct that, prior to release of the final Sea Level Rise Assessment Report from the NAS, all state agencies within my administration that are planning construction projects in areas vulnerable to future sea level rise shall, for the purposes of planning, consider a range of sea level rise scenarios for the years 2050 and 2100 in order to assess project vulnerability and, to the extent feasible, reduce expected risks and increase resiliency to sea level rise.  However, all projects that have filed a Notice of Preparation, and/or are programmed for construction funding the next five years, or are routine maintenance projects as of the date of this Order may, but are not required to, account for these planning guidelines.  Sea level rise estimates should also be used in conjunction with appropriate local information regarding local uplift and subsidence, coastal erosion rates, predicted higher high water levels, storm surge and storm wave data.

6.    The Business, Transportation, and Housing Agency shall work with the California Resources Agency and the Governor’s Office of Planning and Research (OPR) to prepare a report within 90 days of release of this Order to assess vulnerability of transportation systems to sea level rise that will include provisions for investment critical to safety, maintenance and operational improvements of the system and economy of the state.

7.    By June 30, 2009, the California Resources Agency, through the Climate Action Team, shall coordinate with local, regional, state and federal public and private entities to develop a state Climate Adaptation Strategy.  The strategy will summarize the best known science on climate change impacts to California (led by CEC’s PIER program), assess California’s vulnerability to the identified impacts and then outline solutions that can be implemented within and across state agencies to promote resiliency.  A water adaptation strategy will be coordinated by DWR with input from the State Water Resources Control Board, an ocean and coastal resources adaptation strategy will be coordinated by the OPC, an infrastructure adaptation strategy will be coordinated by the California Department of Transportation, a biodiversity adaptation strategy will be jointly coordinated by the California Department of Fish and Game and California State Parks, a working landscapes adaptation strategy will be jointly coordinated by the California Department of Forestry and Fire Protection and the California Department of Food and Agriculture, and a public health adaptation strategy will be jointly coordinated by the California Department of Public Health and the California Air Resources Board, all as part of the larger strategy.  This strategy will be facilitated through the Climate Action Team and will be coordinated with California’s climate change mitigation efforts.

8.    By May 30, 2009, OPR, in cooperation with the California Resources Agency, shall provide state land-use planning guidance related to sea level rise and other climate change impacts.

This Order is not intended to, and does not, create any rights or benefits, substantive or procedural, enforceable at law or in equity, against the State of California, its agencies, departments, entities, officers, employees, or any other person.

I FURTHER DIRECT that as soon as hereafter possible, this Order shall be filed with the Office of the Secretary of State and that widespread publicity and notice be given to this Order.

So pick your poison, folks:

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NJ Media Again Miss the Point on Christie’s Sandy Climate Remarks

May 22nd, 2013 No comments

Falling for Christie’s Straw Man

The Issue is Not “Causation” – But Lack of Preparation

[Update: 5/31/13 – apologies to the Bergen Record – at the time I wrote this, I was not aware that they partnered with WNYC. Also sorry it took me so long to write this, I lean red of partnership on 5/22 from another NJ reporter.]

NJ media is reporting on yesterday’s WNYC story that included highly significant and revealing comments by Governor Christie.

In response to a WNYC reporter’s question about the need for State government to plan and prepare for climate change, the Gov. responded by positing – and then dismissing – an obvious straw man about whether Sandy was “caused” by climate change, a claim no one makes.

The NJ media fell for the governors false frame straw man. Here’s a typical example of framing the WRONG straw man question:

New question in gov race: Did climate change cause Sandy?

So, again, they miss the point – so let me make it simple.

The WNYC  story was a followup to their investigative work about the failure of NJ Transit to plan and prepare for extreme weather, and how that failure caused loss of $120 million.

WNYC contrast NJ Transit’s dismal failure with the NY MTA’s excellent planning, preparation and transparency. The contrasts and results are stunning. I urge you to read the whole WYNC investigative work  – it’s about brains, not just trains:

The real issue – missed again by NJ media – is that WNYC quoted  Governor Christie to say there was NO NEED TO PLAN AND PREPARE for climate change and extreme weather – even upon reflection – because of the alleged straw man: i.e. no “proof” of causation. This is a remarkably irresponsible statement and policy position, and reveals a total lack of leadership, planning and preparation that should be a disqualifying factor for a high public office.

The real issues are not the Gov.’s straw man – but that Gov. Christie: 1) ignored multiple warnings by scientists and DEP experts; 2) dismantled NJ state programs to PLAN AND PREAPRE for climate change; and 3) learned absolutely nothing from Sandy or his administration’s mistakes.

Those failures dwarf the NJ Transit failures.

Those failures are what caused the AshBrittt scandal.

If they need something simple and political, maybe the press corps could read Gov. Tom Kean’s prescient 1989 Executive Order #219, which provides, among other things:

5. All State entities with responsibility for policies or regulations affecting the location, construction or maintenance of public or private facilities (including residential developments) shall:

        a. Ascertain the degree to which those facilities will be affected by predicted changes in sea level; and

       b. Develop policies, in consultation with the general public and other governmental entities, to respond to such predicted changes in sea level

6. All State entities with responsibility for the purchase or protection of land for the purposes of open space protection or related objectives shall, as appropriate, undertake such acquisition or protection activities in a manner that furthers the creation of corridors of linked public and private open spaces known as “greenways,” which aid the adaptation of natural systems by providing corridors for migration as climatic conditions change

7. All State entities shall review their programs designed to facilitate public awareness of environmental issues and revise such programs to ensure, to the maximum extent practicable, the effective communication of information that will enhance the public’s understanding of the basic processes involved in global climate change, the causes of such change, and possible approaches to reducing and adapting to such change.

That is the story – so WAKE UP press corps and do some real work – I’ve laid it all out for you here dozens of times.

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