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EPA Admits Failure To Enforce Financial Requirements For Hazardous Waste Cleanup At Dupont Site for 23 Years

February 25th, 2015 No comments

Congress Established Financial Assurance Requirements in 1984 RCRA “HSWA” Amendments

EPA Issued Dupont a RCRA Permit in 1992 to implement the HSWA Amendments

Chemours Spinoff Reveals That EPA Failed To Enforce Those HSWA Permit Requirements

[Update: 3/17/15 – I just was forwarded a March 4, 2015 reply letter from EPA Walter Mudgan.

Mudgan claims he simply forgot to mention in his Feb 6 reply to our request for information the fact that EPA provided a corporate guarantee  for financial assurance for interim measures back in 1992!

He then criticizes us for making a mistake – that was based on his own oversight!

Like playing whack a mole – more to follow on Mudgan’s March 4 reply. ~~~~ end update]

As we previously noted, the Dupont Corporation’s proposed spinoff of the Chemours company, including plans to shift liability for hundreds of millions of dollars in toxic site cleanup costs from Dupont to the new Chemours group, has prompted EPA national review, see:

Based on these concerns, on January 21, 2015, Pompton Lakes residents wrote EPA Region 2 Administrator Judy Enck a letter requesting EPA review of the Chemours spinoff and for concrete assurances that Dupont would continue to be held responsible for cleanup, including complying with RCRA requirements to demonstrate financial assurance to pay for cleanup and at least 30 years of post cleanup site monitoring and maintenance.

Walter Mudgan, USEPA region 2

Walter Mudgan, USEPA region 2

In an astonishing February 6, 2015 reply, Walter Mudgan, the head of EPA Region 2’s Superfund and RCRA cleanup programs admitted that EPA had not enforced RCRA “financial assurance” requirements for the full costs of cleanup for 23 years since those requirements were included in a 1992 EPA RCRA Corrective Action Permit.

Mugdan wrote:

The first question in your January 21 email concerns the dollar amount of financial assurance for the site.  There is not a specific dollar amount of financial assurance for corrective action at the site under the federal permit at this time, since the permittee is not as yet required to provide such assurance.  However, the Chemours Form 10 filing with the federal Securities and Exchange Commission (referenced in your January 21 email) contains an estimate of $116 million for remediation activities at the site, of which $60 million is estimated to be spent on remediation activities at the site in the next two to three years, including the dredging and other remediation activities contained in the proposed Acid Brook Delta permit modification.

Regarding questions 2-4 in your email, first, please note that the DuPont Pompton Lakes RCRA permit provides that financial assurance must be demonstrated to EPA for “approved” corrective measures.  The proposed RCRA Acid Brook Delta permit modification contains corrective measures, including dredging within Pompton Lake and remediation of adjacent Upland Soils Areas, which will become “approved” measures when the permit modification becomes effective in final form.  Within thirty days thereafter, the permittee is required to demonstrate to EPA in writing that it has financial assurance for the approved corrective measures.  The permittee’s submission should contain a cost estimate for the required work, including post remediation care requirements, and identify the method the company selects to provide the assurance.  Since the permittee’s financial assurance submission for the corrective action has not yet been made, EPA cannot at this time evaluate the nature and content of the assurance.  

[Would a mortgage bank not enforce homeowner’s insurance requirements for 23 years? Could you get your car registered for 23 years without insurance? Ever try Mugdan’s argument on a cop that asked for driver’s license, registration & insurance? How many small contractors get let off the hook for posting performance bonds?

How much money did Dupont save by avoiding demonstrating $116 million financial assurance for 23 years? The financial assurance instruments may vary, but they all cost something. Plus, if EPA had Dupont’s cash in hand for a complete cleanup, wouldn’t that provide significant additional leverage to get Dupont to move a little quicker, under threat that EPA would just take their money and do the cleanup themselves?]

Mugdan’s bureaucratic obfuscation, about what the lawyers euphemistically call the timing and applicability of regulatory requirements, ignores the facts that Dupont has been conducting cleanup under the 1992 permit for 20 years, and that financial assurance requirements were established by EPA in the 1992 RCRA Corrective Action HSWA permit.

Mudgan’s shocking admission about failure to enforce basic requirements prompted outrage among Pompton Lakes residents,  who for many years have complained that DEP and EPA have not strictly enforced cleanup laws on Dupont.

On February 12, 2015, residents wrote another letter, this time to EPA Administrator McCarthy in Washington – with copies to NJ Senators Menendez and Booker.

The letter goes into great detail to rebut Mugdan, citing language from: 1) RCRA Corrective Action financial assurance regulatory requirements; 2) the specific financial assurance conditions of Dupont’s 1992 EPA permit; 3) EPA financial assurance guidance; 4) the EPA National RCRA Corrective Action Enforcement Strategy, and 5) EPA’s 2010 Dupont RCRA permit modification.

Residents are demanding that EPA take immediately enforcement action:

Given USEPA’s historic failure to enforce corrective action financial assurance requirements under RCRA/HSWA and EPA regulations; the enforcement options articulated in USEPA Guidance; USEPA’s reservation of discretion in the DuPont RCRA permit to “modify the enclosed Compliance Schedule should additional information become available that may impact DuPont’s ability to meet a specific scheduling Due Date or Due Dates”; and the new information legal and financial risks posed by the DuPont announced spinoff of Chemours, we respectfully demand that EPA must immediately issue an Enforcement Order to mandate demonstration of financial assurance for all corrective action, closure, and post closure monitoring.

We were shocked by Mudgan’s reply and learning that EPA had failed to enforce these basic permit requirements for 23 years.

EPA will now need to move quickly to assure that EPA has liquid assets that can be secured for site cleanup in the event that the Chemours spinoff company is recalcitrant or financially insolvent or unwilling or unable to finish the massive and costly cleanup at the Dupont Pompton Lakes site.

Based on Dupont’s SEC 10K filing documents, EPA estimated that will cost at least $116 million – and very likely much more because we do not have the cost breakdown of how that cleanup cost estimate waste derived.

Liquid assets must be obtained by EPA before July 1, 2015, which EPA claimed was the effective date of the Chemours spinoff deal.

We understand that EPA is preparing a written response – we’ll keep you posted when we receive that.

[* full disclosure: I drafted the EPA letters.]

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Sweeney and Christie-Crats Throw Pinelands Legacy Under the Bus

February 24th, 2015 No comments

Sweeney Dems Support Christie Abuse of Power – Pipeline Retaliation Scheme

Senator Gill Invokes Christie’s Failure to Reappoint Supreme Court Justice Wallace

all of a sudden, we are expendable, no matter what our qualifications” 

Commissioner Jackson (center, speaking) showed leadership and integrity. For that, Gov. Christie is seeking his replacement.

Commissioner Jackson (center, speaking) showed leadership and integrity. For that, Gov. Christie is seeking his replacement.

[2/28/15 – Sweeney confirms criticism: Asbury Park Press reports: Sweeney defends role in Pinelands flap]

[2/26/15 – today’s Asbury Park Press editorial is even more critical than I am, superb, read the whole thing:

I put a photo of former Gov. Brendan Byrne at the top of my post yesterday – and one of former Gov. Florio at the bottom – for a reason: to signal that Gov. Christie’s nomination of Bob Barr for the Pinelands Commission was a test of whether the Democrats  would honor that 40 year legacy or go along with Governor Christie’s retaliatory scheme.

Today, we feature a photo of Pinelands Commissioner Jackson – first posted on Jan. 11, 2014 –  a thoughtful, independent, and principled man of courage and integrity.

I’m sad to say that the Christie-crat faction of the Democratic Senate- led by Senate President Sweeney who attended the hearing and was working the room pressuring Senators for support – were a total cowardly disgrace to that legacy.

Senator Gill

Senator Nia Gill

I was thrilled by – and applauded – Senator Gill’s principled opposition and her strong words, which invoked Gov. Christie’s outrageous disrespectful insult in not re-appointing Supreme Court Justice Wallace:

This is not about Mr. Barr.  But, if you want to make it about Mr. Barr and his qualifications, … it is clear that he is not qualified.

The larger issue here, is that we are doing here today what Gov. Christie did to Justice Wallace.

We are saying that Mr. Jackson is qualified, but Mr. Jackson is independent.

When he [Gov. Christie] did it to Justice Wallace, we stood together – He is removing the only African American to ever sit on the Commission.

And thereby removing any diversity or other voice to come to the table.

If we were principled enough to stand with Justice Wallace, then we should be principled enough today to stand and not let this go forward.

This is about power. This is about saying that if you disagree with Gov. Christie, you will be removed. […]

As a party of diversity, we will not vote to replace a person who represents not only diversity, but, like Justice Wallace, represents excellence, represents that ability to make an independent judgement.

That’s what Mr. Jackson does , and for that, you are asking us to cast this vote to ensure his removal.

We would not have cast a vote for the removal of Justice Wallace and we should not cast a vote here today in support of Mr. Barr and against all the principles that we stand for. Thank you. (huge sustained applause)

I was pleased by Senator Weinberg’s refusal to go along with what she called Gov. Christie’s attempt to tell Commissioner Jackson to “sit down and shut up”:

We are sending a message today that if you stand up and do something that this Governor doesn’t approve of, you are replaced or told to sit down and shut up.

Vote was 7-4 – Republicans mindlessly supported the Gov., with the exception of Republican Senator Bateman, who emphasized that he took his advise and consent role very seriously and felt that the Pinelands Commission was set up as an independent Commission. Bateman said:

I view this as stacking the deck when you don’t get the result you want.  … I feel that there is a heavy hand being played here…. I just feel that this is wrong. We’re crossing the line and doing a disservice to the integrity of the Pinelands Commission.

Chairman Scutari voted no, as did Democrats Gill, Weinberg (I could not hear how Stack voted).

I was disappointed by Environment Committee Chairman Smith’s abstention – not exactly a profile in courage.

Same thing for Senator Lesniak [***see update below], who was conveniently out of town and ducked a controversial vote that was mis-framed as IBEW union jobs versus special interest environmentalists. Lesniak’s absence allowed Senator Van Drew – champion of both the pipeline and Mr. Barr – to sit in and be the swing vote in favor of Barr.

Games like this should be seen as a disqualification for any Gubernatorial ambitions – by Sweeney and Lesniak.

Read the dirty politics and blow by blow in the Politicker NJ story.

The only good that could come out of today’s disgrace would be a split in the Democratic party, with progressive Democrats using this as a pivot point to take control of the party and reject the Christie-Crat intimidation and crony politics of Sweeney.

Foremr NJ Suprem Court Wallace - not re-appointed by Christie, but now hard at work as Chairman of the Joint Legislative Committee on Ethical Standards

Former NJ Supreme Court Justice Wallace – not re-appointed by Christie, but now hard at work as Chairman of the Joint Legislative Committee on Ethical Standards

Again, Senator Gill laid that eloquently and righteously right out on the line – what do Democrats stand for and who do they stand by?:

This is a very serious vote and I think it says a great deal about where we are as a party and what we stand for going forward.

It also says that there are some issues, where certain people – no matter what, no matter what qualifications they bring to the table – are expendable for larger political reasons – until they come back to your community and ask for your vote.

And that is what this also says to me.

We can either be fair weather friends, or we can be partners in a larger issue, in a larger struggle.

I see that they will come to our community for a vote, but when they have to vote for the principles upon which they espouse, then all of a sudden, we are expendable, no matter what our qualifications – be it Justice Wallace, or be it Mr. Jackson.

I will vote no..

Here’s my testimony in full: (I was speaking extemporaneously):

Good morning Mr Chairman and members of the Committee. Thank you for the opportunity. My name is Bill Wolfe, I’m from Bordentown and I’m here to oppose the nominee.

I want to make it clear at the outset that I think Mr. Barr is a fine man, that he’s done great public service, that he’s a good person.

What I say has nothing to do with Mr. Barr as an individual, other than, he comes to this committee in a large context.

Mr. Barr must be evaluated in context. That context is:

Mr. Barr is the Governor’s nominee.

This Governor has a pattern of retaliation and retribution when you cross his path.

This Governor has a policy of promoting gas in NJ, both at plants and through pipelines. His Energy Master Plan promotes that.

So you have a policy context that is very precise. And a we have a nominee that is selected to serve that agenda.

At the same time the candidate doesn’t have – what Tittel referred to as “intellectual curiosity” – but I would refer to as qualifications, experience, and knowledge, or even frankly interest throughout his life, on anything having to do with the Pinelands: history, cultural resources, natural resources, the Pinelands Management Plan – you name it.

I don’t think there’s anything in the record that shows he has qualifications – or even personal interest.

So, all this contextual baggage and Mr. Barr’s lack of qualifications put this committee on the spot: it’s now become a test of whether this committee will do the right thing on a non-partisan, non-ideoligical basis to preserve the integrity of the process, because the public expects the Judiciary Committee to advise and consent on the merits, not on the politics.

If you are inclined to vote in favor of this candidate, given his lack of qualifications and the context that I  just touched upon – and I’d be glad to elaborate in much more detail – then I think you are putting your own Senate position and this Committee in public disrepute, because that’s how obvious everything that’s going on here is.

Therefore I would appeal to you to do the right thing. Don’t bend to the political arguments you may be hearing as to why this individual should be appointed.

And if you do favor his candidacy, then at least go on the record with some substantive explanation as to his qualifications and to some evidence you find in the record as to his qualifications.

Realize that your actions today will establish a new standard – whether a high standard or a low standard remains to be seen – on both the qualifications for a candidate and it will set a new standard for whether a Governor can retaliate against a sitting independent Commissioner for policy and political reasons.

I’d be glad to answer any of your questions – I’d love to enter into discussion with any of you if you have any differences with what I’ve had to say.

[***Update – I just got a note from a friend asking me to correct the harsh words on Senator Lesniak, claiming that Lesniak was with us on this, worked Committee members in our favor, and that he was innocently in Florida, that Sweeney took advantage of his absence and would not let Lesniak be seated today, even after he hurried to get back to NJ especially for this vote.

I find that an interesting story, but since I have no first hand knowledge of that, I will stick with what I wrote, which is my judgement based on what I do know, which obviously is not everything. Readers can judge for themselves if Lesnaik took a pass, or if Sweeney is even a bigger problem here.  end update.]

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Media Whitewash of NJ’s Toxic Chromium Coverup

February 23rd, 2015 No comments

Courageous Whistleblower’s Warnings Validated, But Ignored – Again

Petulant ego of reporters and editors trumps public health and journalistic integrity

“Thanks to the courage and integrity of a DEP specialist speaking out, it is clear that New Jersey has abdicated its responsibility to protect the public from toxic sites,” stated Bill Wolfe, a former long-time DEP analyst. “Unfortunately, federal intervention will be necessary to make sure that this job is done right.”  ~~~

NJ Facing Chromium Emergency – 1 in 10 Cancer Risks – State Scientist Reveals DEP Coverup; Demand for Federal Intervention (Nov. 5, 2005)

Last week, there were deeply moving must read high profile national stories about whistleblowers that caught my eye.

I had planned to write about those issues soon, from personal experience and the perspective of perhaps the most important analysis of the meaning of whistleblowing, from the truly profound book:  Whistleblowers: Broken Lives and Organizational Power

But today’s Bergen Record story by Scott Fallon on the Garfield chromium disaster forces my hand and narrows my focus.

I have repeatedly criticized Fallon’s coverage of the Garfield chromium site, so it’s understandable that he would never give me a call or report on PEER’s work.

But Fallon’s petulance and petty ego have caused him to whitewash the story – again and again – as he did today with this totally misleading allusion to the site’s troubled history:

The pollution dates to 1983, when more than 3 tons of hexavalent chromium spilled into the ground from a tank at E.C. Electroplating, a small family-run business. Although only 30 percent of the metal solution had been recovered, the state Department of Environmental Protection allowed E.C. Electroplating’s contractors to suspend their cleanup in 1985 — a move DEP officials acknowledge was a mistake.

Note to Fallon: DEP didn’t make a one time, site specific, “mistake” on chromium in Garfield 30 years ago.

DEP scientists were aware of and had warned about Garfield – and scores of other chromium sites – continuously for YEARS.

Their warnings were ignored by DEP managers and suppressed for political reasons.

That history is scandalous. [*here’s one example, from the NY Times (10/2/06)

The chromium issue caused unusually public recriminations within the environmental agency. After a group convened to reconsider the cleanup standards recommended leaving them unchanged, one member, Zoe Kelman, a chemical engineer, wrote a 50-page dissent.

Several other agency scientists, speaking on condition of anonymity because they feared retribution, said that the Department of Environmental Protection had bent to political pressure to speed cleanups.

Ms. Kelman accused the agency of disregarding tests at one capped site, in Kearny, that found hexavalent chromium levels thousands of times higher than the agency plan had expected.

She also noted that while New Jersey sets the allowable level of hexavalent chromium in soil at 240 parts per million, Maryland’s standard is 30 parts per million, and Oregon’s is 23.

“I always feel the public believes we err on the side of protection, and it’s obvious now that we don’t,” Ms. Kelman said.

But that’s not all – here’s Propublica:

A 2004 investigation by the Newark Star-Ledger found that Honeywell Inc., PPG Industries and Maxus Energy Corporation, the companies responsible for the chromium pollution, spent hundreds of thousands of dollars on lobbying and millions of dollars on their own scientific studies to convince the state of New Jersey that its chromium standard was too stringent.

According to the investigation, when the lobbying effort began, New Jersey considered chromium levels in soil at 10 parts per million to be safe; by the end of the companies’ lobbying campaign the chromium standard was raised to 6,100 parts per million: one of the loosest standards in the country, allowing the companies to save millions on cleanup costs.

Despite what Mr. Fallon writes – and he must know this  history – DEP’s failure is not limited to Garfield and it persisted for decades. It is unconscionable for Fallon to ignore all this, and basically give DEP credit for acknowledging their error.

After years of being ignored, marginalized, or told to just sit down and shut up, finally, one DEP employee had the courage and integrity to blow the whistle, almost 10 years ago now.

And Zoe Kelman’s warnings were directly relevant to the Garfield chromium site.

One key Kelman warning that is directly relevant to Garfield was this – risks from toxic chromium migration into building basements:

The 1998 criteria do not protect groundwater and surface water from chromium contamination. The leaching of chromium from soils into groundwater is a natural resource injury in and of itself. But it can also create a public health hazard; groundwater is a vector for the transport of hexavalent chromium and the contamination of additional soils and structures. Leachate evaporation at interfaces results in localized accumulations of highly enriched solid-phase hexavalent chromium on soil, building or other surfaces. The final report of the workgroup ignores the issue altogether; it proposes no soil standard to protect against leaching to groundwater.

Had PEER and Ms. Kelman’s warnings been taken seriously and given media attention by outlets like the Bergen Record, then perhaps unsafe exposures to chromium would have been averted 10 years sooner.

Maybe if EPA were paying attention, they would have taken the PEER November 5, 2005 letter petition requesting federal intervention seriously. We demanded:

  • V) Request for USEPA intervention

Based upon documented unacceptable risks and a longstanding and continuing pattern of failure by the NJDEP, we request that EPA:

  • assume federal jurisdiction and control of the remedial process at certain chromium sites pursuant to CERCLA, RCRA, and the Clean Water Act;
  • conduct necessary and appropriate CERCLA emergency removal actions to control chromium exposures;
  • notify and warn the public of these unacceptable risks and provide assistance in community response to chromium remediation;
  • refer the matter to EPA and Department of Justice for appropriate criminal and civil enforcement action;
  • refer NJDEP’s handling of the chromium matter to the EPA Inspector General for investigation;
  • request that the Agency for Toxic Substances and Disease Registry conduct a community health study and impact assessment of chromium contamination; and
  • conduct site assessments and initiate the NPL listing process for certain chromium sites.

Amazingly, we have been vindicated. Virtually each and every one of these specific demands ultimately happened, but far too late.

After ignoring our 2005 warnings, EPA, Scott Fallon, and the rest of the NJ media had an opportunity to redeem themselves when I rehashed all this back in 2010, with this repeat warning post:

But now, they prefer to prance around and portray themselves as some kind of aggressive investigative watchdogs, writing crap like Fallon’s piece today, which whitewashed the fact that they  – just like DEP –  ignored huge health risks to residents and abdicated their responsibility for many years.

And in the meantime, heroic whistleblower’s careers have been destroyed as State officials retaliated for their honest and accurate warnings to the public.

And those state officials have not been held accountable – in a court of law or the court of public opinion.

And many other frustrated professionals, disgusted by political intervention in DEP science and regulatory decisions, are dissuaded from blowing the whistle, when they see the brave work of one of their colleagues ignored and their career destroyed.

Believe me, when the media and EPA ignore whistleblowers, that is exactly what the powerful corporations and political hacks that run DEP want.

And in the meantime, people are needlessly exposed to risks and the quality of their health and the environment are compromised.

This, dear readers, is the price of petulance and ego of a third rate reporter and his editors.

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Christie’s Controversial Pinelands Commission Nominee is Back Before Judiciary Committee

February 23rd, 2015 No comments

Bob Barr to Appear for the Third Time 

Brendan Byrne (Princeton, 3/3/13)

Former Governor Brendan Byrne – champion of the Pinelands, signed the Pinelands Protection Act in 1979  (Princeton, 3/3/13)

The Pinelands deserve a Commissioner who would be a champion and advocate for the Pinelands, not just show up and vote as he’s told. ~~~ Carleton Montgomery, Executive Director,  Pinelands Preservation Alliance

NJ Senate Judiciary Committee Chairman Scutari posted Governor Christie’s nominee to the Pinelands Commission for consideration tomorrow (Tuesday, 2/23/15, at noon, hearing room 4, Legislative Annex).

It is Bob Barr’s third round of Committee consideration.

Last time he was posted for consideration, on Jan. 26, in an embarrassing moment, Chairman Scutari abruptly announced the he would not be considered.

Barr’s champion, Senator Van Drew, tried to provide an excuse that it was related to the weather, but a Committee member told me that they lacked the votes to approve him

We’ve been over this ground several times now in prior posts, so will just bullet our reasons for opposing Mr. Barr’s nomination:

1) Lack of Leadership, qualifications, or interest in the Pinelands or preservation issues

We agree with Carleton Montgomery’s quote above – the Pinelands deserve leadership, and Bob Barr is not a leader on Pinelands or regional land use planning or conservation issues. I’ve seen nothing is his life experience or education that even suggests an interest in the Pinelands.

2) Pending South Jersey Gas pipeline – balance on the Commission

Gov. Christie supports the  South Jersey Gas Co. (SJG) pipeline. Barr is Christie’s nominee.

SJG legally appealed the Commission’s decision not to approve the MOA. That case currently is pending before the Appellate Division. The Court could remand the case back to the Commission for further consideration at any time.

Given the prior 7-7 deadlock, Barr’s appointment could determine the fate of the pipeline should the court remand or if SJG renegotiates a new MOA or pursues a waiver of strict compliance. The Senate and the Gov. should not be intervening in this matter until the case is resolved with finality.

Therefore, there is no way to avoid the obvious appearance that Barr is being installed to implement Gov. Christie’s policy.

This appearance compromises the independence of the Senate’s advise and consent role.

3) Close relationship with Senator Van Drew, who is championing Commission reconsideration of pipeline vote

Senator Van Drew strongly suppers the SJG pipeline, and is leading the charge to force the Commission to reconsider its prior vote not to approve it. Van Drew has publicly stated that Senate President Sweeney supports his work.

Barr has close political ties to Van Drew. creating as similar appearance problem.

Additionally, there is an appearance that Senator Sweeney could be twisting arms to support Barr, at best a very weak candidate, even without the SJG pipeline baggage.

This appearance compromises the Chairman and the Committee’s independence and casts a negative  light on Senate Democrats, who have long supported strong Pinelands protections.

4) Role as Treasurer of Cape May County Democratic Party – appearance of lack of independence and bias

Barr served as Treasurer to the Cape May County Democratic party.

In that capacity, according to ELEC records I have reviewed, he received funds and processed significant contributions, including biennial contributions of $37,000 from the IBEW, a union that strongly supports the pipeline and repowering of the BL England plant.

The fact that Barr is aware of the IBEW support of the pipeline and that he obviously is aware of their significant financial support for Cape May County Democrats, creates and appearance that he would not be independent and objective in his role as a Commissioner.

Former Governor Jim Florio. Governor Florio (who served in Congress from 1975 – 1990) shared his national perspective, noting that the Carter Administration and many in Congress – just like today – were concerned about the Nixon Administration’s energy policy, impacts of off shore drilling, and plans to run pipelines across the Pines to refineries along the Delaware River. This prompted Congress in 1978 to create the nation’s first National Reserve in the Pinelands. (Princeton, 3/3/13)

Former Governor Jim Florio. Governor Florio (who served in Congress from 1975 – 1990) shared his national perspective, noting that the Carter Administration and many in Congress – just like today – were concerned about the Nixon Administration’s energy policy, impacts of off shore drilling, and plans to run pipelines across the Pines to refineries along the Delaware River. This prompted Congress in 1978 to create the nation’s first National Reserve in the Pinelands. (Princeton, 3/3/13)

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NY Times Exposes Sham Climate Denial Science, Conflicts of Interest, and Misconduct

February 22nd, 2015 No comments

Corporate Cash Buys Denialist “Science”

Christie DEP Science Advisory Board Has Gross Corporate Conflicts of Interest

Report on Regulation of Chemicals Written By Dupont and United Water Corporate Hacks

We do a lot of work on issues of scientific integrity and how corporations “manufacture doubt” to undermine public health and environmental regulation, so we are obviously pleased that the New York Times put those issues in play today.

The New York Times published a story today on the corruption of science by industry money, see: Deeper Ties to Corporate Cash for Doubtful Climate Researcher

For years, politicians wanting to block legislation on climate change have bolstered their arguments by pointing to the work of a handful of scientists who claim that greenhouse gases pose little risk to humanity.

One of the names they invoke most often is Wei-Hock Soon, known as Willie, a scientist at the Harvard-Smithsonian Center for Astrophysics who claims that variations in the sun’s energy can largely explain recent global warming. He has often appeared on conservative news programs, testified before Congress and in state capitals, and starred at conferences of people who deny the risks of global warming.

But newly released documents show the extent to which Dr. Soon’s work has been tied to funding he received from corporate interests.

He has accepted more than $1.2 million in money from the fossil-fuel industry over the last decade while failing to disclose that conflict of interest in most of his scientific papers. At least 11 papers he has published since 2008 omitted such a disclosure, and in at least eight of those cases, he appears to have violated ethical guidelines of the journals that published his work.

That is blatant conflict of interest and gross scientific misconduct. Dr. Soon is sure to be soon gone from the Smithsonian.

The egregious nature of the conflict of interest documented by the NY Times reminds me of equally blatant conflicts right here in NJ that we have tried to expose, see:  NEW JERSEY HANDS DRINKING WATER SAFEGUARDS TO DUPONT

We could just have easily headlined that Report “NEW JERSEY HANDS DRINKING WATER SAFEGUARDS OFF TO UNITED WATER”.

Those efforts have been ignored by the NJ press corps, who seem to have more important things to write about, like the latest Christie scandal.

So, in light of the bright light on the issue created by the Gray Lady’s story today, perhaps an intrepid NJ reporter will understand the nature of the issue and feel emboldened by the paper of record to cover the issue right here in their backyard.

Let me lay it out for readers and intrepid journalists alike:

  • The DEP Science Advisory Board recommendation

There are hundreds of synthetic chemicals in our air and water that poison people and ecosystems that are not regulated. They are euphemistically referred to as “contaminants of emerging concern” by regulators.

In fact, the US Geological Survey and NJ DEP have found over 500 of those chemicals in NJ water supplies, see: FILTER THE CHEMICAL SOUP IN NEW JERSEY’S DRINKING WATER

DEP Commissioner Martin asked his hand picked Science Advisory Board to provide recommendations on whether and how to regulate these chemicals. Here’s how the SAB framed Commissioner Martin’s “charge topic” in their Final Report;

Issue

Numerous chemicals, some of which may be a potential risk to human or environmental health, are used every day in New Jersey (NJ) for industrial, commercial and household purposes. Contaminants of Emerging Concern (CEC) are those that present a concern for both hazard and exposure. A number of these chemicals may find their way into the State’s wastewater treatment facilities, receiving waters, aquifers and drinking water treatment facilities and other chemicals may be released to air or deposited in soils. CEC have raised concern around the world, as once released, these products pose a potential threat to biota and the environment. To address this issue specifically in New Jersey, the NJDEP Science Advisory Board (SAB) formed the CEC work group which was asked to investigate this issue.

With that set of issues in mind, here is a key recommendation from the DEP SAB Final Report on Contaminants of Emerging Concern:

It is recommended that the hazard assessment be conducted using a platform called METIS (Metanomics Information System) developed by DuPont. METIS is a chemical informatics platform that provides a screening level view of potential environmental fate and effects, human health concerns, and societal perception concerns.

Did you catch that?

The DEP SAB recommended a chemical hazard assessment method developed by Dupont, a chemical manufacturer that would be subject to the regulations of those chemicals.

But it gets worse.

The SAB Final Report was conveyed to DEP Commissioner Martin from a Rutgers University Professor, on Rutgers letterhead.

The Rutgers transmittal letter emphasized the role of sub-committee Chair John Dyksen, who just so happens to be a corporate official with United Water and of John Gannon, who just so happens to be a corporate official with Dupont.

Dear Commissioner Martin,

It is my pleasure to convey to you a report on Contaminants of Emerging Concern that has been approved by the Science Advisory Board. This report was written by a sub- committee of the Board, chaired by John Dyksen, with significant input from John Gannon. It was my great pleasure to be a part of this subcommittee.

Get that?

The SAB Report was written by two corporate officials, one from Dupont, who also happened to develop the chemical hazard assessment method, the other from a corporation that makes profits off water.

That has got to be a gross conflict of interest, right?

Here are DEP’s SAB Ethics requirements:

Conflict of Interest and Recusal

You must recuse yourself from deliberations on any subject matter in which you have a financial or other personal interest (“conflict of interest”). This means that when an issue or topic for consideration (“charge topic”) is identified by the NJDEP Commissioner to the SAB or Standing Committee, you must refrain from participating in any discussion of that charge topic (or issues that subsequently arise from that charge topic) and must immediately publicly disclose your conflict of interest and recuse yourself from that charge topic.

For purposes of the above restriction, “conflict of interest” means any financial or other interest which conflicts with the service of the individual because it 1) could significantly impair the individual’s objectivity or 2) could create an unfair competitive advantage for any person or organization. “Recusal” means the process by which a person is disqualified, or disqualifies himself or herself from a matter because of a conflict of interest.

With respect to Gannon (Dupont) and Dyksen (United Water) I particularly like this DEP example of a conflict of interest that requires recusal:

  • The SAB/SC member is employed (or self-employed) by an entity that is regulated by NJDEP or an entity that represents clients before NJDEP or the member is employed by an entity that comes before the NJDEP in a lobbying or other capacity and a charge topic is related to the member’s employment.

So, let’s apply that DEP SAB conflict of interest policy:

1. Dupont and United Water are regulated by the DEP.

2. The subject matter of the SAB Final Report involves the need for regulation of chemicals manufactured by Dupont and subject to costly treatment requirements by United Water.

3. It is so obvious that it almost goes without saying that Dupont has huge financial interests in DEP scientific and regulatory decisions about whether and how to regulate currently unregulated chemicals.

4. Dupont gains competitive advantage by advanced insider knowledge of the development of and an ability to influence DEP regulation.

5. A Dupont official has an obvious bias that would significantly impair his objectivity.

There are at least 4 blatant violations of the DEP SAB ethics restrictions on conflicts of interest. 

Similarly, United Water has equally obvious significant economic interests in whether and to what degree DEP regulates currently unregulated chemicals. United Water has similar competitive advantage and bias/impaired objectivity problems.

How is this not a scandal worthy of New York Times coverage?

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