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Cape May Contingent Tries to Change Conservation Conversation at Commission

While activists sing Kumbaya, Cape May faction ready to rumble

[Update below]

These Cape May boys don’t waste time.

They think they’re on a roll and they’re in a hurry to send a message to the Pinelands Commission loud and clear.

Bob Barr – Gov. Christie’s retaliatory replacement for Commissioner Robert Jackson who opposed the controversial South Jersey Gas Co. pipeline – was sworn in today at the Pinelands Commission.

While Kumbaya was the message of the day from the harsh critics of Barr’s nomination, despite that fact, Barr still managed to start off on the wrong foot.

The wrong foot was the transparent display of political pressure brought to bear on the Commission from fellow Cape May interests Barr is aligned with.

The tactics were so crude that there was little nuance in the message sent: the Cape May delegation is here and we’re going to be heard and get what we want.

Those kind of political stunts may carry the day in Cape May County politics, but they have no relevance to Pinelands Commission deliberations.

Let me be specific.

It is well known that Barr has a close personal relationship with and was a staffer to Cape May Senator Van Drew, his sponsor. Van Drew is leading the fight to get the Commission to reconsider the pipeline vote and approve it. Strike one.

But it is not so well know that Barr served as Treasurer of the Cape May County Democrats and handled political donations from unions and others publicly advocating for the SJG pipeline. Strike two.

What has not been discussed at all, and is of relevance given today’s political show, is proposed legislation sponsored by the Cape May District #1 delegation: Sen Van Drew (S2125) and Assemblyman Andrzejczak (A3257 [2R]):

This bill, as amended, provides that a recreational use meeting the conditions set forth in the bill would be allowed as a low intensity recreational use on lands that are subject to a Pinelands development credit deed restriction and located within an agricultural production area in the pinelands area.

These floor amendments specify that youth soccer would be considered a recreational use that would be allowed as a low intensity recreational use if it meets the conditions set forth in the bill.

Barr is close to those Legislators and Tuckahoe Sod Farm and parents with their soccer playing kids on display as political props who spoke today. Strike three.

The irony is that prior to Barr’s arrival, Executive Director Wittenberg had already caved into the pressure being asserted by the Cape May delegation – through Senator Lesniak and the Senate Economic Development Committee  where the Van Drew bill resides, the Assembly passed their version – and agreed to develop a “pilot program” and provide some flexibility in response to the Tuckahoe Sod Farm soccer dispute that triggered the bill.

So, it was overkill and inappropriate, particularly on Barr’s swearing in day, to have Cape May parents show up with their kids to create the appearance that the Pinelands Commission was taking college soccer scouting and scholarship opportunities away from Cape May kids.

And it was equally gauche for Tuckahoe Sod Farms to appear and testify about how those youth soccer tournaments are such a great marketing tool for their sod.

They pitched shameless emotional and private special interest economic arguments, untethered to the Pinelands Comprehensive Management Plan (CMP) or the public interest.

An older woman from Jackson also appeared and talked about her retirement dreams being taken by a rezoning plan that would reduce her “development rights”.

And, for the coup de grace, perhaps at the invitation of Executive Director Wittenberg, who is savvy and knows how to play the political game with the best of them, Michael Gross, environmental Counsel to the NJ Builders Association – an A Team shark, for sure – made a special guest appearance.

Gross took strong exception to what he viewed as inappropriate personal attacks on staff (meaning his friend Wittenberg).

He also defended the regulatory process and role of South Jersey Gas and Wittenberg/Roth as revealed in the trove of emails, and urged the Commission not to limit communications between staff and regulated applicants.

Between the young kids in their soccer gear, the retiree, the sod farmer, and Mr. Gross, it was an embarrassing display – just short of a circus.

So, if Mr. Barr’s nomination is now going to precipitate a parade of special interests and manipulative political stunts, then we are off on the wrong foot for sure.

I’ll write about the substantive issues discussed at today’s meeting in a subsequent post. I wanted to highlight this set of troubling issues separately.

[Update: 4/11/15 –  What sneaky cowards.

The Commission was asked point blank questions about Tuckahoe Sod Farm during the public hearing and  refused to answer. The issue was not on the meeting agenda.

But, after an Executive Session discussion, according to the Press of Atlantic City, the Commission voted to direct Wittenberg:

After a closed session meeting, the commission came back into public session and voted to empower Executive Director Nancy Wittenberg to finish negotiations and enter into an agreement with Tuckahoe Turf Farms. Only Commissioner D’Arcy Rohan Green, of Bay Head in Ocean County, whom Christie has also tried to replace, voted against it.

Good for Rohan Greene –

The Commission must learn that compromise never satisfies the developers – they only view it as a sign of weakness and come back for more.  ~ end update]

Prior DWQI Recommendations To Regulate Toxic Chemicals are Down the Memory Hole

New Risk Review Process Allows Industry to “Manufacture Doubt”

We don’t forget Commissioner Martin’s smear of DEP’s science

“Who controls the past controls the future: Who controls the present controls the past”

As a scientist and an academic toxicologist, Rutgers professor Keith Cooper, PhD, Gov. Christie’s newly installed Chairman of the NJ Drinking Water Quality Institute (DWQI), certainly must be familiar with the compelling arguments of Professor David Michaels’ book “Doubt is their product – How Industry’s Assault on Science  Threatens Your Health”  and with Harvard Professor’s Naomi Oreskes’ work “Merchants of doubt – How a handful of scientists obscured the truth – from tobacco smoke to global warming“.

Both recent books amply document how corporate “scientists” have blocked, delayed, and weakened government’s attempts to regulate the public health and environmental risk of their products.

So, I was not surprised when Cooper presented a new DWQI review process and severely narrowed the scope of public comment at yesterday’s meeting of the DWQI.

(I asked a question at the outset of the public comment period and was told directly by Cooper that public comments were to be limited to the 3 technical papers presented. By definition, that excluded hugely significant issues – as discussed below).

Nor was I surprised that later, when I testified during the public comment period, that Dr. Cooper interrupted, objected to, and then basically told me to sit down and shut up when I began speaking about how his new risk assessment review process invited and exacerbated exactly the corrupt industry strategies and scientific abuses documented by Professors Michaels and Oreskes.

With Hal Bozarth, head of the NJ Chemistry Council sitting in the front row, of course Dr. Cooper did not want to talk about the fact that the chemical industry, including NJ based Dupont, is waging a war on his science and the work of the DWQI.

Of course he didn’t want to talk about “manufacturing uncertainty”.

Of course with reporters copiously taking notes and recording the proceedings, Dr. Cooper did not want to talk about the fact that powerful players like Dupont have major influence on the Christie DEP’s Science Advisory Board and huge conflicts of interest.

Similarly, for the same reasons that his predecessor – Rutgers professor Mark Robson who resigned in frustration – of course Dr. Cooper doesn’t want to talk about the fact that the DWQI made a series of recommendations to DEP to develop drinking water “Maximum Contaminant Levels (MCLs).

Specifically, Cooper did not let me talk or ask questions about the status of the prior DWQI MCL recommendations for perchlorate (2005), Radon- 222 (2009) and 13 hazardous chemicals (2009) –  including tri-chloropropane found in Moorestown’s drinking water – all of which have been ignored by the Christie DEP.

And of course Chairman Cooper does not want to talk about the fact that DEP has documented over 500 chemicals in NJ drinking water, which was discussed at the September 2010 meeting, the one before DEP Commissioner Martin blocked the DWQI from meeting for 4 years (from the minutes of that meeting):

B. Wolfe wished to follow up on the May 7 presentation (posted on the NJDEP website June 28) of a “white paper” on unregulated contaminants. Research conducted by NJDEP found over 500 unregulated drinking water contaminants among the supplies tested, most of which had no toxicological data. Wolfe stated that it is not feasible to deal with this number of unregulated contaminants one at a time, when a technically and economically feasible approach of grouping contaminants by treatment approach is available. 

(for DEP documents and PEER petition to DEP, see: Filter the chemical soup in NJ’s drinking water).

Of course, Dr. Cooper doesn’t want to talk publicly about any of that.

That’s why its all been swept down the memory hole.

You see, the DWQI has a brand new review process.

After years of criticism, Cooper is desperately trying to “rebuild the reputation of the DWQI” and focus on that as the “new and improved” DWQI scientific review process.

By inference, that means that all the prior work of the DWQI and all the prior recommendations were somehow defective and therefore no longer valid.

The only people who think that the NJ DWQI have a poor scientific reputation are Dupont, the Chemistry Council and their tool DEP Commissioner Bob Martin (that’s what “customer service” and regulator relief” is!)

And that is exactly the false narrative that DEP Commissioner and his customer friends in the chemical industry want, because it becomes the excuse for letting them off the hook for meeting many MCL’s previously recommended by the DWQI.

[* That lie that prior DWQI was shoddy also provides an excuse for DEP Commissioner Martin’s directive that blocked the DWQI from meeting for 4 years.]

Under the pretext of more rigorous “sound science” (Dr. Cooper actually used that industry slogan), the shiny new process provides plenty of opportunity for the chemical industry to “manufacture doubt” to block, delay, and weaken any DWQI recommendations and DEP regulatory standards. And because it is so shiny and new and improved, that means that all the old DWQI Reports and recommendations are flawed and outdated and shoddy science (Bob Martin accused DEP scientists of shoddy science during his first weeks in Office –

Commissioner Martin testified to the legislature that DEP DWQI science was:

“shoddy, poor, not organized, and anecdotal” and that “there was little data and science to back it up”.

That “rebuild the reputation of the DWQI” is a devastating false narrative, of course.

For those that follow the details, that narrative is destroyed not only by the actual history, but by the fact that even yesterday’s presentation explicitly stated that the prior risk assessment methodology of the DWQI remains unchanged – the only things that have changed are how the DWQI Reports present the data.

All of which takes us to the day job of our Hero, Winston Smith.

Smith worked in the Ministry of Truth.

His job was to flush inconvenient facts “down the memory hole”.

As Orwell wrote: 

In the walls of the cubicle there were three orifices. To the right of the speakwrite, a small pneumatic tube for written messages, to the left, a larger one for newspapers; and in the side wall, within easy reach of Winston’s arm, a large oblong slit protected by a wire grating. This last was for the disposal of waste paper. Similar slits existed in thousands or tens of thousands throughout the building, not only in every room but at short intervals in every corridor. For some reason they were nicknamed memory holes. When one knew that any document was due for destruction, or even when one saw a scrap of waste paper lying about, it was an automatic action to lift the flap of the nearest memory hole and drop it in, whereupon it would be whirled away on a current of warm air to the enormous furnaces which were hidden somewhere in the recesses of the building.

Orwell, like Dr. Cooper, fully understood the implications of history and the need to eliminate inconvenient historical facts:

If the Party could thrust its hand into the past and say of this or that event, IT NEVER HAPPENED–that, surely, was more terrifying than mere torture and death?

So, just what became of all the prior works and recommendations of the DWQI, now that Dr. Cooper has put in place his new industry friendly review process?

Orwell knows:

What happened in the unseen labyrinth to which the pneumatic tubes led, he did not know in detail, but he did know in general terms. As soon as all the corrections which happened to be necessary in any particular number of ‘The Times’ had been assembled and collated, that number would be reprinted, the original copy destroyed, and the corrected copy placed on the files in its stead. This process of continuous alteration was applied not only to newspapers, but to books, periodicals, pamphlets, posters, leaflets, films, sound-tracks, cartoons, photographs–to every kind of literature or documentation which might conceivably hold any political or ideological significance. Day by day and almost minute by minute the past was brought up to date. In this way every prediction made by the Party could be shown by documentary evidence to have been correct, nor was any item of news, or any expression of opinion, which conflicted with the needs of the moment, ever allowed to remain on record. All history was a palimpsest, scraped clean and reinscribed exactly as often as was necessary. In no case would it have been possible, once the deed was done, to prove that any falsification had taken place. The largest section of the Records Department, far larger than the one on which Winston worked, consisted simply of persons whose duty it was to track down and collect all copies of books, newspapers, and other documents which had been superseded and were due for destruction. A number of ‘The Times’ which might, because of changes in political alignment, or mistaken prophecies uttered by Big Brother, have been rewritten a dozen times still stood on the files bearing its original date, and no other copy existed to contradict it. Books, also, were recalled and rewritten again and again, and were invariably reissued without any admission that any alteration had been made. Even the written instructions which Winston received, and which he invariably got rid of as soon as he had dealt with them, never stated or implied that an act of forgery was to be committed: always the reference was to slips, errors, misprints, or misquotations which it was necessary to put right in the interests of accuracy.

 

Legislation To Eliminate Current $50 Million Liability Cap Stalled In NJ Senate

Christie Vetoed Legislation That Would Have Increased Cap to $1 Billion

Cap Lets Corporate Polluters Off The Hook In The Event of A Huge Spill

[Update: the Assembly version – A4258 – passed the Assembly 71-0 on May 154, 2015. No media coverage. The bill needs to be expanded for all spills/releases, not just off shore drilling.]

The Christie Administration’s $225 million sweetheart deal with Exxon – settling for less than 3 cents on the dollar of a $8.9 billion natural resource damage claim – has rightly spawned huge public outrage and scathingly critical editorials.

Today, Senate Democratic leader Senator Lesniak will hold a press conference with NY/NJ Baykeeper to kick off a public campaign to convince Superior Court Judge Hogan to reject the corrupt deal.

Senator Sweeney, in the wake of a Star Ledger report that Exxon will benefit from tax loopholes, has expressed outrage and proposed new legislation to eliminate any similar state tax breaks. The Star Ledger editorialized on that today.

Perhaps while Sweeney and Lesniak are at it, they can get Senator Smith’s bill S2172 moving and expand it to more than just drilling platforms?

That bill would eliminate the current $50 million cap on spill liability, but only for spills from off shore drilling platforms.

There could be a pipeline rupture, a tanker or railcar crash, or a huge spill at Exxon Bayway refinery that could cause $10 billion in damages to Raritan Bay and even the Jersey shore.

In that kind of accident, under current NJ law, Exxon’s cleanup liability would be capped at $50 million.

Did you know that?

As I wrote, a bill to eliminate that $50 million cap has stalled for years in the Senate, blocked by Budget Committee Chairman Sarlo, and presumably lacks Sweeney’s support:

Although you would not know about it by reading the NJ media, last Monday (6/16/14) the Senate Environment Committee heard testimony on and released an important bill to eliminate the current $50 million liability cap on pollution discharges from off shore drilling platforms that enter NJ waters, see, S2172 (Smith, D-Middlesex).

The bill is limited in scope to drilling platforms and is a significantly scaled back version of a bill (S2108) originally introduced in the wake of the Gulf of Mexico oil well blowout. That bill would have applied to far more hazardous activities. It was heard in July 2010 and I wrote about it here:

• Gulf Blowout Prompts NJ Lawmakers to Seek Increase in Polluter Liability to $1 Billion

A far narrower compromise version of that bill passed both houses of the legislature by unanimous votes, but was pocket vetoed by Governor Christie in January 2012. The Governor did not even explain why he effectively vetoed the bill.

Something to consider as legislators express outrage over Governor Christie’s Exxon NRD deal.

DEP Commissioner Martin Makes a Mockery of the Public Comment Process

Fine Print Reveals Further Betrayals of the Public Interest

[Correction and Update below]

DEP just posted their proposed Natural Resource Damage (NRD) Settlement Agreement with Exxon (hit this link to read the document).

DEP also issued a totally inappropriate press release, praising the deal (read DEP press release).

Commissioner Martin’s role is to review and consider public comment and then make a recommendation to the Court to approve, modify, or reject the proposed Settlement based on public comment (see paragraph #26 emphasis mine):

The Plaintiff will submit this Consent Judgement to the Court for entry … unless, as a result of the [public] notice … the Plaintiff receives information that discloses facts or considerations that indicate to the Plaintiff, in its sole discretion, that the Consent Judgement is inappropriate, improper, or inadequate.

Commissioner Martin’s praise for the deal prejudges and totally compromises the independent role he is supposed to serve under law.

• Substantive Flaws Confirmed

A quick read suggests that the Settlement is even worse than we originally thought, based on news coverage and review of the DEP Consultant’s Report. The news has focused on the financial aspects, i.e. less than 3 cents on the dollar of the $8.9 billion claim. But there is a lot more than that going on regarding hundreds of contaminated sites across NJ.

Here are bullet points on the major flaws –

We will flesh each one out but want to get this quick and dirty review out there immediately for press coverage:

• No Full Restoration or Complete Cleanup of Bayway and Bayonne sites is required

The DEP Consultant’s restoration plan would have required excavation and off-site disposal of at least 9 million tons of highly contaminated sludge, soil, and sediments, followed by restoration of on site wetlands systems to their natural conditions.

The cost was estimated at $2.6 billion.

The settlement eliminated – totally – this on site restoration requirement.

In eliminating the on site restoration requirement, the settlement also failed to mandate that Exxon conduct a “permanent remedy” under the 24 year old 1991 site cleanup ACO’s or establish cleanup deadlines.

See this post for an explanation of the huge differences between DEP NRD restoration and DEP remediation requirements. As long as Exxon can show that a cap eliminates human exposure and is protective of public health, Exxon  can leave millions of tons of toxic sludge and soil on site forever. Exxon is paving and waving all the way to the bank, and for less than 3 cents on the dollar.

• There will be no off-site compensatory restoration

The DEP consultant’s Report documented damages to over 1,600 acres of wetlands.

In addition to the $2.6 billion on-site restoration requirements, DEP claim was based on their consultant’s determination that Exxon should compensate the public for those wetlands via a $6.3 billion off site restoration plan.

That plan and any off site compensatory restoration are completely gone.

• Many additional sites including unknown number of gas stations are off the hook for NRD (See Attachment C above)

At least 16 additional Exxon facilities with pollution are included in the deal, along with an astonishing  860 gas stations!

There are hundreds of millions of additional NRD damages that will not be recovered at these sites.

This is totally unacceptable and must be stopped.

• The agreement extinguishes untold million of dollars of NRD as a result of groundwater injury and vapor intrusion pollution at 860 gas stations (including “any contaminant, media, and/or theory of liability” – see definition of “matters addressed” on page 9).

This extraordinarily broad concession by the State is so egregious that it needs it own bullet.

•  The Reservation of MTBE liability is wiped out 100 fold by benzene, BTEX, groundwater pollution

The agreement reserves the State’s rights under the MTBE lawsuit.

However, MTBE is not nearly as pervasive or harmful as other gas station groundwater and vapor intrusion pollution risks, including from carcinogenic benzene.

There also is no primary drinking water MCL for MTBE, which may have legal implications regarding the extent of actual NRD damages.

• There is no scientific or technical basis for the $225 million deal – its a purely negotiated number

The DEP consultant’s Report provided an extensive documentation and technical justification for the $8.9 billion damage claim, based on federally approved Habitat Equivalence Analysis methodology.

The Christie deal provides no factual or technical basis whatsoever for the $225 million number, which might just as well been picked out of a hat.

This is the epitome of arbitrary and capricious decision-making and a flagrant abuse of enforcement discretion.

• DEP agreed not to require cleanup of Morses Creek until  after the Bayway Refinery closes (paragraph #13)

DEP agreed not to require cleanup of Morses Creek until after the Bayway refinery shuts down.

This shows that the NRD agreement is BROADER in scope than just NRD, and instead of strengthening DEP cleanup requirements on site, the deal weakens them.

The definition of “Morses Creek” excludes adjacent hydrologically linked wetlands and riparian areas. THis will narrow the scope of the cleanup obligations for Morses Creek.

Both these concession may violate the Clean Water Act, an issue awe shall take up with EPA.

• DEP agreed to major limitations on seeking off site surface water damages to the Arthur Kill and Raritan Bay and surrendered State control to the federal government (paragraph #8)

DEP agreed to major restrictions on any future surface water NRD claims.

DEP agreed NOT to file NRD claims for surface water pollution of the Arthur Kill and Raritan Bay until the federal government prepares a formal NRD assessment.

DEP also agreed to grant Exxon right to participate in the NRD assessment process above and beyond current or future regulatory requirements.

DEP also agreed to not solely target Exxon for this pollution, regardless if even 99% can be shown to have come from the refinery, and pursue multiple parties for this pollution, again giving away powers they have under current law to proceed individually against Exxon

• Toxic contamination of sediments, fish and wildlife are not even mentioned

I’m sure Exxon will argue that their exclusion from surface water off site impacts means they have no liability for these damages. They have additional arguments under the definition of “matters addressed” and the very broad scope of the agreement in paragraph #9.

Why would DEP leave sediments and fish and wildlife receptors out?

• Exxon  was not required to admit liability or fault in any way for their massive pollution (paragraph #20)

Worse, Exxon got protection – the agreement says  Exxon committed no wrongdoing and admitted no liability for their decades of toxic pollution at these sites.

Incredibly bad move by the State just to protect Exxon.

• DEP agreed to significant new burdens on taking any action to protect public health or the environment at site covered by the agreement (paragraph #16)

Should new concerns at these sites arise, DEP reserved their authority but agreed to limit their future actions at the sites under this agreement  to only “immediate environmental concerns” (IEC) or “imminent and substantial endangerment”.

These are high burdens to meet – why would DEP agree to this?

• The deal is a take it or leave it and can’t be modified by the Court (paragraph #29)

The deal is a package. It can’t be modified without killing the whole thing.

This undermines the public comment process and the ability of the judge to protect the public interests, adn is therefore bad public policy and not in the public interest.

• Exxon retains a veto over any DEP initiated modifications based on public comment (paragraph #34)

Same point as above.

• Exxon retains a unilateral right to veto the deal if the court modifies or does not approve – Exxon walks away with clean hands as if nothing ever happened. DEP can’t use anything in Settlement as evidence (paragraph #38)

Same point as above.

• Basis in police power should eliminate corporate tax loopholes (paragraph #28)

The Star Ledger is reporting today that Exxon may benefit from corporate tax loopholes.

Perhaps the State’s reliance on the police powers as the basis for the deal might eliminate that abuse.

• The State failed to get its huge expert consulting and legal fees compensated (paragraph #14)

Just another insult. Many millions of taxpayer dollars have been invested in this case for consulting and legal fees.

[4/8/15 Correction: I just learned that DEP LOST on the legal issue of counsel fees for lost use of natural resources in the 2009 Superior Court decision]

[Update: 4/7/15 – Tom Johnson at NJ Spotlight has a good story. Wonder how Jim O’Neill at the Record feels now for swallowing the ton of bullshit he did from anonymous Christie sources?

Here’s my comment on Spotlight story:

It is even worse than Mr. Catania thinks.The State not only failed to recover legal and consulting fees in a case a court found liability, the agreement REVERSES the Court’s liability finding and explicitly states that Exxon admits NO LIABILITY and engaged in NO WRONGDOING.As my grandfather used to say: “How do you like ‘dem apples?

The State broadly waived liability for damages from “any contaminant, media, and/or theory of liability”.This broad waiver will harm their ability to recover damages for surface water contamination to Arthur Kill and Raritan Bay.

The State put huge restrictions on any future surface water claim, including waiting for a federal NRD Assessment before proceeding at the State level, thereby surrounding NJ control to the feds.The agreement also fails to define and include damages for fish, birds, shellfish and other wildlife damaged by Exxon, as well as drinking water resounds that are lost to public use due to pollution.

Groundwater pollution from 860 gas stations is not “de minimus” – DEP is insane to make that claim.