WolfeNotes.com

But happily ever after fails

And we’ve been poisoned by these fairytales ~~~~ The End of Innocence

[Update: 2/2/15 – this is what I was driving at, but lack the writing skills to convey: – Chris Hedges writes (read the whole thing)

Malcolm, like James Baldwin, understood that only by facing the truth about who we are as members of an imperial power can people of color, along with whites, be liberated. This truth is bitter and painful. It requires an acknowledgment of our capacity for evil, injustice and exploitation, and it demands repentance. But we cling like giddy children to the lies we tell ourselves about ourselves. We refuse to grow up. And because of these lies, perpetrated across the cultural and political spectrum, liberation has not taken place. Empire devours us all. ~~~ end update]

After reading today’s Bergen Record, I need to get two burrs out of my saddle before I am able to sleep tonight.

Both share the same underlying problems: the attempt to champion the interests of the people, while spouting myths that benefit corporate interests. Both do a disservice to readers.

These are huge errors, requiring no special expertise to detect, and are easily documented by a simple Google search.

• Revisionism on Eagles

The first one is easy.

In a story about the recovery of the bald eagle, reporter Jim O’Neill repeats a number of hypocrisies, myths, and historical revisionisms.

I won’t mention them all, but instead just two:

First, in the hypocrisy department, O’Neill and his sources tout the activism, collective political action, strong laws, strict enforcement, and well funded government programs that led to the bald eagle recovery effort – particularly bans and toxic site cleanup efforts.

“It’s incredible. It’s something I never thought in my wildest dreams that I’d see,” said Don Torino, president of the Bergen County Audubon Society. “It’s a story of people 40 years ago getting together, passing the Clean Water Act and the Endangered Species Act, banning DDT, and hoping something like this would happen. I think it ended up better than they even thought.”

Yet O’Neill’s sources in the conservation community, who point out this history and the effectiveness of regulatory mandates and the ban on DDT (they seem to have forgotten the PCB issue),  have not only abandoned any work on those kind of political and regulatory issues.

Groups like Audubon are leading the charge and actively espouse the current anti-regulatory and anti-government ideology, which eschews political activism and seeks to dismantle government in favor of “corporate stewardship”, private land management, and voluntary individual lifestyle changes and market based and consumer choice strategies.

Ironically – or hypocritically – these exact same conservation groups just defunded the very science, regulatory, and toxic waste management and site cleanup programs  that contributed to the bald eagle recovery success to fund open space, which does nothing to reduce the bioaccumulative chemicals that harm wildlife.

NJ Audubon led that effort.

[*I can’t recall Audubon or other conservation groups working on toxics issues or site cleanups, even those poisoning wildlife with bioacummulative toxics. And now, when we need another round of massive organizing and government bans and equally bold measures like the DDT, PCB, and lead bans of the 1970’s  – like bans on coal power plants and a phase out of fossil fuels – groups like Audubon are off doing feel good measures.]

Prior to open space funds raid, they remained silent as the NJ DEP abandoned those successful regulatory efforts as well (see:  New Jersey DEP Abandons Tougher Toxic Standards – Bald Eagle and Peregrine Falcon Warnings on Mercury, DDT and PCB Unheeded

Second, O’Neill parrots another standard historical revisionism, that of the “bi-partisan” glory days of the 1970’s.

For the record, I am referring to this standard myth, which is deeply misleading:

Laws provided important safeguards that helped the ongoing conservation efforts to restore bald eagle populations. Congress had passed the Clean Water Act in 1972 and the Endangered Species Act the following year. Both were signed into law by President Richard Nixon. The rebound of the eagles here reflects improving water quality in the state’s rivers and bays, Wheeler said.

The fact is that Nixon vetoed the Clean Water Act,.

Congress had to over-ride that veto. There was no “bi-parisan lovefest” (See: Clean Water Act 101—A bit of legislative history

[*See The Powell Memo for what was really going on at the time – and that Powell strategy led directly to our current state of affairs: corporate control, and groups like Koch Brothers fueled AFP and ALEC and the echo chamber of right wing think tanks like CATO Institute, The Heritage Foundation, and The Federalist Society. Nixon’s man Powell wrote the strategy that the Koch Brothers now implement.]

Perhaps worse, completely ignored are the activist movement politics and tactics that led to those legislative victories.

Much of the conservation community in NJ has virtually abandoned the tough struggles, aggressive political tactics, and activists roots that won victories they now coast on.

Virtually all of the funders have stopped funding that kind of work.

To bask in the success of that work while benefitting from the dismantling of that work is a disgrace.

• Drinking EPA Kool-Aid on the Role of Costs in Superfund Cleanup Decisions

This issue is more complex and requires that the intrepid editorial writers do a little research before simply accepting EPA statements at face value.

Unfortunately, editorial writers tend to depend on their news reporters – and in this case that reliance is misplaced.

I am referring to the Record’s editorial about the Ford Ringwood site: Toxic Legacy Remains

That editorial, while critical of EPA’s cleanup plan and expressing the appropriate perspective on the need for a complete cleanup, lets EPA off the hook:

The EPA still must approve the plan to cap the site. Federal law, unfortunately, seems to encourage the EPA to sanction proposals that are less costly than other options and that lead to redeveloping Superfund sites. That could be good news for the borough’s capping and recycling center proposal.

As I’ve written, it is simply not legally true – as Record reporter Scott Fallon has written (quoting self -serving EPA bureaucrat Walter Mugdan) – that the federal Superfund law mandates the lowest cost option or “seems to encourage the EPA to sanction proposals that are less costly than other options”.

Just the opposite is true – the Superfund law has a “preference for permanent remedies”.

Cleanup cost and cost effectiveness are NOT more important factors than a permanent complete cleanup protection of public health and the environment. Choice of cleanup option is a balancing test (see EPA on the role of costs in Superfund).

The NCP states that the overall goal of the remedy selection process is “to select remedies that are protective of human health and the environment, that maintain protection over time, and that minimize untreated waste” (40 CFR 300.430(a)(1)(i)).

Under EPA Superfund laws and regulations, EPA must consider a number of things when making cleanup decisions – they are of three different types, for a total of 9 overall criteria .

Note that these criteria are not given equal weigh – especially cost, which is just one of 5 balancing criteria and can not over-ride the threshold criteria (see 40 CFR Part 300):

(A) Threshold criteria. Overall protection of human health and the environment and compliance with ARARs (unless a specific ARAR is waived) are threshold requirements that each alternative must meet in order to be eligible for selection.

(B) Primary balancing criteria. The five primary balancing criteria are long- term effectiveness and permanence; reduction of toxicity, mobility, or volume through treatment; short-term effectiveness; implementability; and cost.

(C) Modifying criteria. State and community acceptance are modifying criteria that shall be considered in remedy selection.

EPA initially based the selected preferred remedy – complete removal of waste material – in part by consideration of the preference for permanent remedies and assumptions about future land use.

To now reverse that original decision and allow the “cap” or “contingent remedy”, EPA considered what they called in press reports “cost-effectiveness”, an undefined and discretionary concept I could not find in the regulations or the Ringwood ROD.

The EPA could have stood by their original cleanup plan.

They didn’t – the caved to Ford’s political pressure.

EPA should be held accountable for that – they should not be allowed to hide behind a false portrait of the role of costs in Superfund cleanup law, especially by well meaning editors at the Bergen Reocrd who seem to want to avoid embarrassing the lousy reporting of Scott Fallon.

Activists at Dupont Pompton Lakes RCRA Site Demand EPA Review of RCRA Financial Assurance

RCRA Financial Assurance Requirements Ignored by Press Accounts

[Update: We told you so, see:

• Inspector General Launches Probe Into EPA Financial Assurance Programs – Does EPA Enforce Superfund and RCRA Requirements?  ~~~ end update]

Our sources revealed that EPA Headquarters – and possibly the Justice Department – are reviewing the Dupont corporate spinoff of Chemours. That move could have significant implications. Here’s the story.

On December 18, 2014, Dupont announced the spinoff of a new corporate entity called “Chemours”.

The move was widely reported in the press as an attempt to shave off liability at scores of contaminated Dupont sites. First media reports came from a critical piece in the News Journal in Delaware:  (December 24, 2014)

DuPont’s Chemours spinoff also cuts away cleanup bills

 

DuPont Co. will shed nearly $300 million worth of environmental remediation baggage along with some of its most volatile and competitive-industry business units when it spins three major business segments off as Chemours Co., a financial disclosure shows.

The cleanup bill, including some involving local sites, could push much higher, a Securities and Exchange Commission information statement on the breakup added, with “adverse” circumstances possibly sending the environmental burden above $1 billion.

Upon reading that story, we immediately tried to get the NJ story out, with a specific focus on RCRA sites, with links and a map of all Dupont sites in NJ, see:

But it took Jim O’Neill of the Bergen Record over 2 weeks to pick up the story.

His January 11, 2015 piece painted a very different picture and provided opportunities for Dupont to portray the story in a favorable light:

DuPont said in recent filings with the Securities and Exchange Commission that the new company would be financially sound. It said the environmental liabilities for the 190 sites is estimated at nearly $300 million, including $87 million in expected cleanup costs for Pompton Lakes. Those costs are not expected to have much impact on the new company’s financial position, liquidity or ability to operate, DuPont said. …

“Chemours and DuPont remain committed to fulfilling all remedial and redevelopment activities that have been ongoing at Pompton Lakes,” DuPont spokesman Terry Gooding said.

O’Neill even quoted environmental experts to downplay the significance:

But, thankfully, EPA did caution that there were concerns about potential bankruptcy:

But Walter Mugdan, the federal Environmental Protection Agency’s Superfund director for the region, said the issue would be more complex if Chemours ever filed for bankruptcy. Whenever the EPA finalizes a cleanup plan, the company responsible must provide financial assurance that it can pay for the cleanup. Most of the time these are sufficient, but, Mugdan said, “there’s no guarantee the money will actually be there when needed.”

We then learned that in fact the problem was real, and that similar corporate  abuses had been attempted and prosecuted:

Similar situations have prompted the EPA to launch an investigation into whether a spinoff was fraudulent – and force the parent company to pay up. In 2006, Kerr-McGee Corp. spun off a subsidiary called Tronox, which included the parent’s chemicals business and its former environmental liabilities. Tronox went bankrupt in 2009. The U.S. Justice Department intervened, and a bankruptcy judge ruled that Kerr-McGee had fraudulently tried to evade its environmental debts.

In a settlement agreement approved by the court last fall, Kerr-McGee and its parent agreed to pay $5.15 billion, the largest environmental enforcement recovery ever by the Justice Department. The money will pay for cleanups across the country, including $217 million for work at the Federal Creosote Superfund site in Manville. The EPA had removed more than 450,000 tons of contaminated soil and cleaned up nearly 100 properties in the Somerset County borough.

Hello! Of course one possibility of the Dupont spinoff could be a bankruptcy strategy!

But, despite all this failure to critically consider the potential motives of Dupont in NJ (something that was obvious to the original Delaware reporter), for some reasons, despite the fact that Dupont’s Pompton Lakes site is a RCRA cleanup, no one mentioned that RCRA  has Financial Assurance requirements designed to prevent these kinds of abuses and assure that adequate cleanup funds are available for complete cleanup, including post cleanup monitoring.

Specifically, EPA explains what “Corrective Action” and “Financial Assurance” are:

Corrective action entails conducting cleanup activities to address all unacceptable risks to human health or the environment from the release of hazardous waste or hazardous constituents at TSDFs. 3 The corrective action process generally includes the following elements: initial site assessment, site characterization, environmental indicators, selection and implementation of the remedy.

EPA explains the purpose of RCRA Financial Assurance:

The primary purpose of the financial responsibility requirements for corrective action is to assure that funds will be available when needed to conduct necessary corrective action measures. 7 The intent of the RCRA financial responsibility requirements is, in part, to reduce the number of TSDFs that are insolvent or abandoned by their owners and operators, leaving the costs of corrective action to be borne by the public. 8 

Congress intended that facility owners and operators ensure that adequate funds would be available to complete the required corrective action so contaminated TSDFs do not become the responsibility of the federal Superfund or State cleanup programs. 9 It is important for regulators to require facility owners and operators to obtain financial assurance when the companies are financially healthy, so that resources are set aside in the event a company hits a financial decline. 

RCRA Financial Assurance regulations require:

If corrective action, when necessary, cannot be completed prior to the issuance of a permit to an owner or operator of a TSDF by the Administrator or an authorized State, the permit must contain a schedule of compliance for completing such corrective action and assurances of financial responsibility. 5 Thus, both EPA and authorized States must include assurance of financial responsibility for corrective action in permits that require corrective action.  EPA is authorized to issue administrative orders or file civil judicial actions that impose corrective action financial responsibility requirements on facilities subject to 3008(h) orders. 6

Additional regulations for closure, post-closure care and third-party liability are found in 40 CFR Part 264, Subpart H for owners and operators of permitted hazardous waste facilities

EPA explicitly anticipates bankruptcy abuse:

So, with that in mind, we reached out to our friends in Pompton Lakes, who immediately understood the significance and they fired off the below letter to EPA Region 2 Administrator Enck.

We understand that this Pompton Lakes letter to Region 2 prompted EPA HQ review.

We will keep you posted when we hear about how this is being resolved.

If EPA decides to enforce RCRA Financial Assurance  requirements as part of some kind of national review of the Dupont Chemours spinoff, the implications could be significant.

January 21, 2015

Ms. Judith Enck

Administrator,Region 2

U.S. Environmental Protection Agency

290 Broadway New York, NY  10007-1866

Re:  DuPont Spin-off (The Chemours Company) – Pompton Lakes DuPont Works Site.  RCRA Financial Assurance

Dear Ms. Enck:

We are writing to you on behalf of the concerned Pompton Lakes residents that are critically worried about our future here in Pompton Lakes.  We have some specific questions in regard to the recent DuPont spin-off request to the US Securities and Exchange Commission which will affect the Pompton Lakes DuPont Works site here in Pompton Lakes under  I.E. DuPont De Nemours and Co.  We are sure you are familiar with the recent news and the various articles that have appeared in a variety of news outlets.  Here is the US Securities and Exchange Commission application for your information. http://investors.dupont.com/files/Chemours/Chemours-Form-10-12-18-2014.pdf.

Our questions are as follows:

1.  What is the dollar amount for the DuPont RCRA financial assurance for the Pompton Lakes DuPont Works site?  Can you provide us with that information?

2.   What specific instrument is DuPont RCRA financial assurance?  Is this instrument guaranteed by DuPont (not The Chemours Company but DuPont specifically)?

3.   Is this instrument liquid?

4.  Will EPA require DuPont (not The Chemours Company) to put money aside in an escrow account for the projected cost of the cleanup?

5. Will EPA ramp up existing DuPont RCRA financial assurance to address risks from The Chemours Company?

6.  Can this spin-off be stopped and if so, who has the authority to take such an action?

Since the above concerns are on the forefront for the residents as they are worried about their future, please respond as soon as possible.

Many thanks.

Respectfully,

Pompton Lakes Community Advisory Group (PLCAG)

Redactions of Pinelands Commission Emails Suggest Coverup of Retaliation Scheme

This is the first and introductory post for a larger story about a scandal involving Gov. Christie’s Office, the Attorney General’s Office, and the Pinelands Commission.

For some reason, the media has ignored the story about a trove of emails obtained by an Open Public Records Act lawsuit filed against the Pinelands Commission by the Pinelands Preservation Alliance.

These emails reveal shockingly inappropriate activity, including direct involvement by the Governor’s Office.

So, we begin, because apparently no one else will write the story.

Let me start with an an analogy.

The recently released amazing book  “Guantanamo Diary” has skyrocketed to the best sellers list.

Significant parts of the book were redacted by US national security agencies before it could be published.

It took years to get the book declassified by US national security agencies.

According to NPR. there were over 2,500 redactions.

Obviously, the attempt to block public release of the information, followed by the redactions, raises questions about what the national security agencies were hiding.

Let me be clear before I even make my point: I am not trying to equate Guantanamo Bay war crimes with the Christie Administration’s attacks on the Pinelands Commission.

I am, however, equating their motivations – i.e. similar efforts to block the public release and redact information are similarly suspect.

So let’s take a look at the redactions.

The emails above and below are between Pinelands Commission managers and Gov. Christie’s Office.

The Pinelands Preservation Alliance filed OPRA requests for these documents. Their OPRA requests were denied. They were forced to file a lawsuit in Superior Court to obtain these documents. After obtaining them they were heavily redacted.

I will explain the context and significance in future posts –

Sequoia National Park (8/16/14)

A brief note today with some depressing news, posted in light of my recent California trip, where I was privileged to experience huge trees and magnificent forests.

A disturbing study by University of California at Berkeley scientists suggests that climate change is a factor in the death and decline of huge trees in California (*assuming climate is a factor in drought).

[* It’s actually more complicated, and deals not just with precipitation, but increasing temperatures, evapotranspiration, soil moisture, and what is derived as climatic water deficit:

Large tree declines were more severe in areas experiencing greater increases in climatic water deficit since the 1930s, based on a hydrologic model of water balance for historical climates through the 20th century.]

According to RT story today:

The report published in the journal of the Proceedings of the National Academy of Sciences examined changes in the number of large trees – two feet in diameter or more – between data gathered in the 1920s and 30’s and the first decade of this century.

According to the study: Twentieth-century shifts in forest structure in California: Denser forests, smaller trees, and increased dominance of oaks

Declines in the number of large trees in temperate and tropical forests have attracted attention, given their disproportionate importance to forest structure, function, and carbon storage. Yet, factors responsible for these declines are unclear. By comparing historic (1930s) and contemporary (2000s) surveys of California forests, we document that across 120,000 km², large trees have declined by up to 50%, corresponding to a 19% decline in average basal area and associated biomass, despite large increases in small tree density. Contemporary forests also exhibit increased dominance by oaks over pines. Both large tree declines and increased oak dominance were associated with increases in climatic water deficit, suggesting that water stress may be contributing to changes in forest structure and function across large areas.

The study has relevance for NJ forests as well, because climate change models predict warming temperatures, changes in the timing of the seasons, and more extreme wet and dry periods that alter the basic hydrology and ecosystems upon which NJ forests have evolved, adapted, and depend.

Climate change will alter forest health and forest composition in NJ, as the California research shows is happening there.

We are already seeing impacts in Pinelands forests from southern pine beetle.

Just another reason for a rapid transition to renewable energy and phase out of fossil fuels.

northeastern view, Mt. Tamalpais

Yosemite

DEP required to consider cumulative impacts and may deny permits in burdened communities

An important environmental justice bill will be heard on Monday (1/26/15) by the Senate Environment Committee.

The bill, S1150 (Weinberg), would authorize DEP to designate an area a burdened community and require DEP to consider cumulative risks and impacts. DEP would be authorized to deny permits in those areas upon finding an unacceptable risk or impact.

The bill would also provide a process for communities to seek designation and would prohibit DEP from issuing any permit in a burdened community unless the local community adopted an ordinance that approved the project.

DEP has already designated environmental justice communities and already has the authority to consider cumulative impacts and deny permits, but has not used that authority or considered cumulative impacts in existing permit programs.

Despite candidate Christie’s promise to address cumulative impacts and EJ communities during the 2009 campaign – one of the bases for the NJEF endorsement – and issuing a narrow Executive Order , the Christie DEP has virtually abandoned the environmental justice policy and program initiated back during the Whitman Administration (*a symbolic, narrow, and toothless program called “environmental equity”) and *greatly expanded under Gov. McGreevey.

Gov. Corzine’s DEP Commissioner Lisa Jackson promised action on environmental justice issues, but failed to deliver reforms.

The bill’s requirement for a local ordinance is new and essentially would make DEP permits subject to local approval.

This is a very significant and controversial change in current law and practice, where local concerns frequently are ignored by DEP.

I have written about these issues numerous times, e.g. see:

• DEP Discovers Discrimination – Dumps Environmental Justice Issue in Christie’s Lap

• Dissenting Report Rips Christie DEP Commissioner Martin On Environmental Justice

• DEP Guts Science on Cumulative Cancer Risks in Paterson, NJ

Below is my letter of support, requesting technical amendment to strengthen the bill.

January 22, 2015

Dear Senator Weinberg:

I am writing to express strong support for your bill, S1150 regarding DEP permits in burdened communities.

I would like to suggest a few minor technical amendments that could improve the bill, as follows:

1. Section 1

The definition of “permit” should reflect approvals or determinations made by or issued by both DEP and/or private Licensed Site Remediation Professionals (LSRP’s) pursuant to the Site Remediation Reform Act of 2009 (cite).

This is consistent with the inclusion of other remedial oriented statutes in the current definition.

Additionally, the Global Warming Response Act (2007) should be included as general authority, because some of the community risk and impact reduction measures recommended by DEP may also serve global warming emissions reduction, mitigation, or adaptation objectives, i.e. urban forestry to reduce urban heat island effects.

2. Section 2

In the criteria for designating an area a burdened community, consideration should be provided for two additional environmental risk factors:

a) potential or actual lead exposure risks and blood lead levels in children;

b) potential or actual exposure to air pollutants emitted by mobile sources (cars, trucks, aircraft, ships – e.g. Port Newark).

The scientific basis for these recommendations can be found in this NJ DEP Report, see:

A Preliminary Screening Method to Estimate Cumulative Environmental Impacts

http://www.nj.gov/dep/ej/docs/ejc_screeningmethods20091222.pdf

 

Additionally, research has documented that community health, obesity, and other health risks are impacted by access to parks and open space that provide opportunity for recreation and exercise.

Similarly, research has documented that lack of access to fresh fruits and vegetables, so called “food deserts”, have significant impacts on community health.

Accordingly, criteria to address these risks should be included on Section 2.

3. Section 3

The DEP Report required by Section 3.a.(1) should include the following:

“measures to avoid, reduce, eliminate, or mitigate adverse risks or impacts”

Similarly, Section 3.b. should be amended to authorize the DEP to not only to deny a permit, but to require that the permit applicant  avoid, reduce, eliminate and/or mitigate risks or impacts. 

4. Throughout the bill, the terms risks and impacts should be used together. They are different concepts and the bill should capture both.

Similarly, the bill should encompass both adverse public health and environmental risk and impact.

I appreciate your favorable consideration of this request and am available to discuss, support, draft, or work with OLS to draft the above minor amendments.

Respectfully,