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Arizona DEQ Permit Allows City of Bisbee To Discharge Raw Sewage To Public Streets and Streams

February 28th, 2019 No comments

Arizona DEQ Claims US EPA Has No Jurisdiction Under Federal Clean Water Act

view from the Cafe

view from the Cafe

This is a followup to my 2/19/19 post about the raw sewage discharge in Bisbee, Arizona, see:

John Eyre from Arizona DEQ followed up and left a message on my phone tape.

According to Mr. Eyre, the case was closed.

Mr. Eyre stated that the Arizona DEQ issued a Groundwater Protection Program permit to the City that specifically allows them to discharge raw sewage to the street and local streams.

The City will be filing a “Sanitary Sewer Overflow Report” as required by the GPP permit – that’s all. No enforcement action, no corrective action plan.

Mr. Eyre stated that he interviewed the worker, reviewed the permit and will be making slight permit changes to somehow prevent the City from “leaving so much behind”.

Mr. Eyre stated that “I’m all right with that and management is all right with that”.

Well, I assure you that I am not all right with that.

I strongly doubt that the people of Bisbee are all right with that.

And I doubt that the Cochise County Health Department and the US EPA are all right with that.

We will be following up with all of them – particularly US EPA Region 9 Criminal Investigations Division, who called me today.

I don’t know how widespread this practice is, but allowing ADEQ to hide Clean Water Act violations behind a State groundwater permit should not be tolerated by US EPA.

I suspected something improper was going on when I first spoke to Mr. Eyre from ADEQ.

I found it curious that a groundwater permit engineer was responding to a surface water enforcement case.

Mr. Eyre immediately mentioned that the City had been granted “flexibility” due to unusual geology, aging infrastructure, and historical development.

He said that the City was limited in what they could do by permit requirements to protect and restore historic resources.

When I asked Mr. Eyre if US EPA has signed off on that permit “flexibility”, he replied that EPA had no jurisdiction, because these were not “waters of the US”. He stated that only Arizona DEQ had jurisdiction in the impacted Whitewater Draw.

When I asked about faxing him documents (because Mr. Eyre  requested that I prepare a map and send him the Police Report), Eyre got nervous and told me not to because the fax in his office was in an open location and you never know who might see the documents. He asked for PDF files emailed to him alone. I found that very odd.

Neither Mr. Eyre or ADEQ surface water permit staff answered my questions about “waters of the US’ and why a groundwater permit governed a surface water discharge situation.

Regardless, I find it remarkable that a State environmental regulatory agency could issue and defend a permit that specifically allows discharge of hundreds of gallons of raw sewage to city streets and local streams.

Aside from the Clean Water Act violations, such a practice is a huge health hazard.

More to follow.

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Blaming the Department of Education Is A Diversionary Coverup Of DEP Regulatory Failures On Lead In Drinking Water

February 27th, 2019 No comments

Going down the same road of fake solutions as in the Kiddie Kollege mercury daycare scandal

Does anyone remember this 2006 outrage – the NY Times reported:

Memo Shows Agency Knew of Danger in Child Care Building

The New Jersey Department of Environmental Protection knew in 1994 that a building that later housed a Gloucester County day care center was so dangerous that state inspectors were instructed to use respirators when entering the building, according to an internal memo obtained by The New York Times yesterday.

But the site remained contaminated, and as far as the department knew, unoccupied, until inspectors visited it in April and found that Kiddie Kollege, a day care center serving children as young as 8 months old, was operating in the building. Yet the center, which is in Franklin Township, was allowed to remain open for more than three months, until state environmental investigators determined in late July that the site was still contaminated. …

The internal memo, dated Oct. 12, 1994, said “Level C at a minimum is required for entry into the building,” meaning respirators were required, said Bill Wolfe, a former department employee who is the director of New Jersey Public Employees for Environmental Responsibility, a watchdog group that provided a copy of the memo.

In that case, the focus and legislative and regulatory reform agenda was diverted to the Department of Education’s daycare center certification program, not the total breakdown of DEP regulatory oversight of the toxic site remediation program. Even DEP was forced to admit:(NY Times)

A timeline released by the state’s Department of Environmental Protection describes how a series of missed opportunities and incomplete communications over the past 12 years put children at risk.

This diversion was engineered by powerful corporate polluters, who would be subject to stricter DEP regulatory oversight and huge new financial and legal liabilities for the risks of “vapor intrusion” into buildings.

Instead of addressing those real problems, fake daycare licensing solutions were crafted and DEP failures continued and as a result people were needlessly poisoned for years.

Well, we’re heading down exactly the same road in responding to the lead in drinking water crisis.

NJ Spotlight today reports on the “Lead Roundtable”, see:

Just as we warned, the lead reform agenda has been hijacked and the work of NJ Future and the focus of NJ Spotlight’s coverage demonstrate that.

Blaming the Department of Education is a blatant diversion from DEP regulatory failures.

Lead in drinking water is NOT a DoE responsibility – it is exclusively a DEP responsibility under the NJ State and federal Safe Drinking Water Acts.

DEP has the legal responsibility, the regulatory apparatus, the institutional structure, the programs, the staff, the resources, and the scientific expertise to regulate lead risks. DoE has none of that.

In contrast to this misplaced (intentionally hijacked) NJ focus, in the wake of the Flint Michigan lead scandal, we saw this:

2 Michigan regulators take plea deals in Flint water case

LANSING, Mich. – Two Michigan environmental regulators implicated in the Flint water scandal pleaded no contest to a misdemeanor Wednesday in exchange for more serious charges being dropped, bringing to six the number of officials who have agreed to such deals.

Michael Prysby pleaded no contest to a count of violating Michigan’s Safe Drinking Water Act, and Stephen Busch pleaded no contest to disturbing a public meeting. They had been charged with felonies, but those charges were dropped under the terms of their deals, which also require them to testify against others, as needed.

The misplaced focus of the Spotlight Roundtable and today’s coverage are no accident – that’s exactly the objective of the NJ Future hijackers.

As more evidence of that, here are pointed fact based questions I submitted on February 13 to NJ Spotlight Reporter and Roundtable moderator Jon Hurdle – Mr. Hurdle just confirmed that NONE of them were asked.

Hi Jon – I’d attend and ask these questions, but am currently basking in the Arizona desert and unable to do so.

1. Is “corrosion control” effective?

For many years, US EPA, NJ DEP and the water companies have told us that “corrosion control” is adequately protective for lead and therefore the traditional Safe Drinking Water Act MCL framework and provisions are not appropriate.

So, is corrosion control effective and adequately protective of public health and sensitive receptors?

If yes, then why are we spending millions on removal of lead pipes and fixtures?

If not, then why doesn’t NJ DEP abandon the program and adopt a real MCL and treatment and removal regulatory regime for lead?

2. What do NJ’s “Private Well Testing Act” data collected by DEP tell us about the lead issue?

The NJ legislature passed the Private Well Testing Act – read about the Act and the DEP PWTA program here from DEP website:

https://www.state.nj.us/dep/watersupply/pw_pwta.html

DEP used to issue Reports that resented and analyzed the data. But no more. See:

  • DEP Has Not Reported Residential Drinking Water Well Data for Over 5 Years

http://www.wolfenotes.com/2012/05/dep-has-not-reported-residential-drinking-water-well-data-for-over-5-years/

Prior DEP PWTA Reports found high frequencies and high levels of lead in drinking water, see:

  • NJ DEP Has Know For YEARS that Up to 18% of NJ Homes Have High Lead Levels

http://www.wolfenotes.com/2016/04/nj-dep-has-know-for-years-that-up-to-18-of-nj-homes-have-high-lead-levels/

Why has DEP not acted on that data (i.e. to regulate) or published that data to better warn the public?

What do that data tell us about important technical factors in developing a policy and program, and not just about allocating the money, facts like:

a) mapping the location of homes with high lead levels (an important EJ indicator in considering overburdened communities with cumulative exposure and child blood exceedences. This can be done by census tract, neighborhood, or municipality to maintain confidentiality of specific homes, as mandated by legislature in the PWTA));

b) age of homes (indictor of additional exposures from both lead paint, lead water pipes, and soil exposures from air deposition, old leaded gas emission still bound to soils and contaminated sites);

c) source water chemistry (important to know in whether corrosion control works – just ask the folks in Flint about that!;

3. If we’re spending so much money on lead removal and remediation and are serious about environmental justice and climate change, then why do we continue to allow emissions of significant amounts of bioavailable lead in overburdened NJ cities?

Garbage incinerators still operate in Newark, Camden, and Rahway,among others (in Warren and Gloucester Co.).

Those facilities are significant sources of lead air emissions, which deposit locally and poison kids.

They are located in DEP designated overburden EJ cities.

They also emit greenhouse gases and other air pollutants that cause adverse health effects.

Their bonds have been paid off and the original DEP air permits and BPU & DEP approved “Service Agreements” have expired.

They were granted expensive “above market” subsidized electric energy contracts as “incentives” under federal. law (PURPA) and State policy adopted in the 1980’s to address “the solid waste crisis”.

They undermine efforts to increase recycling and reduce waste generation.

Why don’t we just shut them down?

Please pose these questions at your forum

When will the legislature and the media start to focus on the same regulatory flaws and corruption that occurred in Flint Michigan?

When will they ask: What did DEP know, when did they know it, and what did they do with that knowledge?

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Untangling A Rats Nest Of Gov. Whitman’s Egregious Lies

February 26th, 2019 No comments

Whitman Lies Go Unchallenged and Become False History

I was just doing some research on former Assemblywoman Maureen Ogden’s (R-Essex) 1994 “Household Hazardous Waste Management Act” proposed legislation (A973) – which I helped draft while a DEP professional – and came across this rats nest of egregious lies submitted by former Gov. Christie Whitman to the US Senate Environment Committee in response to our testimony criticizing her environmental record in NJ. (transcript)

Governor Whitman raised the statewide total waste stream recycling goal from 60 percent to 65 percent. All 21 of our counties now operate permanent or periodic systems for the collection and proper disposal of household hazardous waste. DEP has advanced “Universal Waste” management to collect fluorescent bulbs, thermostats, switches, consumer electronics and other products which contain heavy metals, including mercury. We continue to implement our “Toxic Packaging Reduction Act” and “Dry Cell Battery Management Act” to reduce toxics in packaging and collect batteries which contain mercury and other heavy metals. Finally, New Jersey has the most stringent standards in the country for mercury emissions control at the five energy recovery incinerators which operate in the State and we have nearly c mpleted our second assessment of mercury in the environment through a Mercury Task Force stakeholder process.

So lets interrogate the history and take those egregiously false claims one by one:

1. “Governor Whitman raised the statewide total waste stream recycling goal from 60 percent to 65 percent.”

No she didn’t. The is false – the facts:

The Florio DEP, based on recommendations by the Florio created Emergency Solid Waste Assessment Task Force, proposed increasing  aggressive recycling rates and mandating County Household Hazardous Waste Management programs. The Task Force’s recommendations were for a total waste stream recycling rate that exceeded 65%, although DEP initially adopted a 60% in the initial Solid Waste Plan Update. That minimum 60% rate was based upon a material specific technical analysis. DEP held counties accountable to that 60% rate as a minimum.  (see below), and sought higher rates based on county waste streams and proposed management plans. Whitman’s alleged increase from a 60% rate to a 65% rate changed absolutely nothing.

Whitman installed Assemblyman Robert Shinn as DEP Commissioner. Shinn opposed the Florio DEP Solid Waste Plan and sponsored a Concurrent Resolution to kill the Plan. Shinn was pro-incineration and opposed to DEP State mandates to Counties.

For Whitman to attempt to take credit for increasing recycling goals that originated in a State solid waste plan her own DEP Commissioner sought to kill is incredible chutzpa.

Whitman’s DEP Commissioner Bob Shinn, a former Republican legislator and his Republican colleagues, opposed the Florio DEP policies and Solid Waste Plan (see this). Shinn was the sponsor of the Assembly version of the same Resolution to strike down the Florio Solid Waste Plan.

The Florio DEP proposed and adopted amendments to the NJ Solid Waste Management Plan to implement these recommendations. The NY Times reported:

New Jersey officials should set a goal to recycle 60 percent of the state’s garbage by 1995, a task force commissioned by Gov. Jim Florio recommended today. [a state mandated rate, from the prior 25% voluntary rate].

The recycling goal would be the most ambitious in the nation, and would reduce New Jersey’s need to build incinerators to burn garbage, said the preliminary report of the Emergency Solid Waste Assessment Task Force.

Governor Florio said his task force would try to ”reverse the approach that we’ve had in the state for the last 10 or 15 years, which is to build incinerators first.” He said they should be ”a last resort, not the first resort.”

The Whitman DEP Commissioner,Robert C. Shinn, OPPOSED these Florio policies in his capacity as Chairman of the Assembly Solid Waste Committee and later as Whitman’s DEP Commissioner.

The NY Times:

The good news in the report on recycling, which was released on July 6, has led to a new round of debate on whether the state needs to proceed with the 17 incinerators proposed around the state. Environmentalists say that the report bolsters their contention that incineration is unnecessary, since New Jersey residents are proving that a vast majority of the products that now end up in the waste stream can be recycled.

But this was Whitman DEP Commissioner Shinn’s position at the time: (NY Times)

Proponents of incineration, however, say it is safe and efficient since emissions are strictly monitored to make sure they are environmentally sound and that it reduces the volume of the solid waste that must be placed in landfills by as much as 75 percent.

The Counties implemented HHWM programs as a result of DEP mandates and reasons to the State Solid Waste Management Plan (see footnote #6):

Mercer County has endorsed the state-mandated goals to recycle 50% of its
municipal solid waste stream and 60% of the total waste stream. The County has adopted a source reduction strategy that includes capping per capita waste generation by 1995, reducing total waste generation by 2000, conducting waste audits, a household hazardous waste collection and education program, and a per container rate fee structure program.6

The Florio Taskforce recommended greater than the 60% recycling rate that was included in the DEP 1994 Plan Update. The Florio DEP considered the 60% recycling rate as a minimum, and urged counties to go beyond that:

Screen Shot 2019-02-26 at 9.10.39 PM

After opposing this, the Whitman DEP simply followed the Florio DEP lead.

2. “All 21 of our counties now operate permanent or periodic systems for the collection and proper disposal of household hazardous waste.”

These County HHWM programs were established and funded based on policies of the Florio DEP, particularly toxics source and use reduction initiatives like the Dry Cell Battery Management Act and the Toxic Packaging Reduction Act. Those were legislative initiatives sponsored by Democrats and opposed by Shinn and Republicans.

Whitman’s DEP Commissioner Shinn supported them as county programs a legislator in Burlington County, but opposed them on a statewide basis as mandates by DEP and sought to kill the DEP HHWM program.

Florio’s Mercury Task Force also recommended these programs as ways to reduce toxic incinerator lead and mercury emissions. Upon assuming DEP Commissioner, Shinn effectively disbanded the Mercury Task Force and sabotaged its recommendations.

3. “DEP has advanced “Universal Waste” management to collect fluorescent bulbs, thermostats, switches, consumer electronics and other products which contain heavy metals, including mercury.

The “Universal Waste” framework was a federal EPA policy designed to provide regulatory relief and allow low cost management solutions to high volume industrial wastes as an alternative to more stringent and costly federal RCRA hazardous waste management regulations.

NJ DEP reacted to this federal EPA regulatory relief initiative to try to do damage control and limit its scope in NJ.

In contrast to this EPA federal rollback, the more stringent NJ based program to “collect fluorescent bulbs, thermostats, switches, consumer electronics and other products which contain heavy metals, including mercury” was created based on the Florio Solid Waste Assessment Taskforce and Mercury Emissions Task Force recommendations and State laws Florio pushed, i.e the Toxic Packaging Reduction Act and Dry Cell Battery Management Act.

Whitman had absolutely nothing to do with any of that.

To the contrary, Whitman’s DEP Commissioner Robert C. Shinn OPPOSED these policies and laws as a NJ Legislator and Chairman of the Assembly Solid Waste Committee.

4. “We continue to implement our “Toxic Packaging Reduction Act” and “Dry Cell Battery Management Act” to reduce toxics in packaging and collect batteries which contain mercury and other heavy metals.”

These laws were initiated by the Florio Administration and Democratic legislature and OPPOSED by Whitman’s DEP Commissioner Robert Shinn, a former Republican Assemblymen form Burlington County.

I was hugely involved in developing and drafting both bills s DEP’s Solid Waste Legislative liaison.

5. “New Jersey has the most stringent standards in the country for mercury emissions control at the five energy recovery incinerators which operate in the State.”

These mercury air pollution control emission standards were developed by the Florio DEP, based upon recommendations of the Florio Solid Waste Assessment Task Force and Mercury Emissions Taskforce created by Florio’s Executive Orders. The Florio Mercury Task Force recommended:.

Remove mercury from products and phase out sales of mercury-containing products for which there are reasonably available alternatives. In order to accomplish this, New Jersey should:

Adopt legislation that reflects the provisions of the Mercury Education and Reduction

Model Act prepared by the Northeast Waste Management Officials’ Association (NEWMOA), as part of the New England Governors’ Mercury Action Plan. This plan addresses mercury-containing products, such as thermometers, thermostats, switches (including those in motor vehicles and appliances), and fluorescent lights, and limits the sale of mercury to approved purposes.

Develop effective outreach and education on the importance of removing mercury from products. County household hazardous waste programs should play a key role in this effort.

These recommendations and implementing legislation and DEP plans and regulations were OPPOSED by Whitman’s DEP Commissioner Robert C. Shinn in his capacity as a Republican Legislator and Chairman of the Assembly Solid Waste Committee. Shinn was a pro incinerator legislator who supported County primacy, as was Whitman. Shinn later abandoned these policies as Whitman;s DEP Commissioner.

Furthermore, and even worse, Gov. Whitman was involved in a scheme to block implementation of these recommendations and mercury standards and their expansion to coal fired power plants.

Whitman and Shinn disbanded the Florio Mercury Emissions Taskforce and actively suppressed science on high levels of mercury in statewide  freshwater fish. For publicly disclosing this scheme, I was related and forced out of DEP as a whistleblower.

6. “… we have nearly completed our second assessment of mercury in the environment through a Mercury Task Force stakeholder process.”

Total lie. See sworn testimony below, but let me first explain.

Whitman’s DEP Commissioner Shinn disbanded Gov. Florio’s Mercury Taskforce, failed to followup on their work, and suppressed science on mercury risks to public health.

Whitman and Shinn failed to continue the work of the Florio DEP on mercury controls, including the need to issue public health advisories on fish consumption and impose new emission standards on coal fired power plants, which were later imposed by the McGreevey DEP.

Here is sworn deposition testimony of 9/21/94 by DEP Assistant Commissioner Sinding exactly on the issue:

Screen Shot 2019-02-27 at 10.24.31 AM (1)

Screen Shot 2019-02-27 at 10.25.32 AM

Screen Shot 2019-02-27 at 10.25.10 AM

All this is history and exposes the LIES of Christie Whitman.

End Note – these egregious lies were drafted by Whitman aid John Spinello, I suspect with the help of Shinn’s Deputy Gary Sondermeyer. Sadly, both these hacks are still actively involved in NJ policy circles.

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NJ Gov. Murphy DEP Weakening State Toxic Cleanup Regulations

February 26th, 2019 No comments

DEP Will Now Allow Volatile Organic Chemicals To Permanently Pollute Groundwater

McCabe Reversed Decades Old DEP Prohibition On “Caps” Over Volatile Chemicals

Major Victory For Corporate Polluters Who Will Save Billions In Cleanup Costs 

It is easy for DEP Commissioner McCabe to criticize Trump EPA rollbacks.

But to do so while your own DEP is rolling back historical protections is shameful and inexcusable hypocrisy.

I knew the deal was in last May, when Gov. Murphy’s new (still acting at the time) DEP Commissioner Catherine McCabe joined Trump EPA Administrator Pruitt to praise his new Superfund policy, see:

Gov. Murphy’s DEP Commissioner Joined Trump EPA Head Pruitt Press Spin, Just Days After Congressional Hearings On Pruitt Scandals

… What was she thinking?

McCabe is dead wrong not only on the optics, but on the policy as well.Wonder if she’s read the Pruitt EPA Superfund Task Force Report?

I wonder if McCabe understands that NJ’s now cleanup law she touts as a model for Superfund, was privatized under the Corzine Administration and Lisa Jackson’s leadership?

So, it was no surprise to learn that McCabe’s DEP just reversed a decades old DEP toxic site cleanup policy that prohibited the use of so called “caps” over soil and groundwater contaminated with toxic volatile organic chemicals (so called VOC’s).

In spite of highly touted pending legislation to protect NJ residents from Trump EPA regulatory rollbacks, the radical new DEP policy was quietly developed behind closed doors with huge influence by corporate polluters and their paid consultants:

Take a look at the industry dominated groups that wrote them. I counted 71 representatives of regulated industry or paid industry consultants – and not one public member, environmental group member, local government representative, or independent scientific or academic expert.

That Sham Stakeholder process is still part of the Murphy Administration’s DEP and still part of the DEP website (see this link for documents). Note that it is prominently displayed on the DEP website, just under the photo of Commissioner McCabe.

In fact, the McCabe DEP has expressly supported that Sham – the DEP website states (my emphasis):

Site Remediation Program Stakeholder Process

Acting Commissioner McCabe and Assistant Commissioner Pedersen believe that working with a broad range of stakeholders is essential to continuing the growth and success of the Licensed Site Remediation Professional (LSRP) program. To this end, the Department continues to implement an extensive stakeholder process to address general program issues, rules, and guidance. 

How can 71 industry representatives and zero public, environmental or academic represeantives possibly constitute a “broad range of stakeholders”? Echoes of George Orwell!

The Guidance was recently implemented in January 2019 with no public awareness or involvement, see:

VOC’s are the worst of the worst chemicals. They are highly toxic human carcinogens that are highly mobile in soils and groundwater, allowing them to disperse widely in soils and groundwater to pollute drinking water wells.

They also migrate upward creating “vapor intrusion” and expose people to carcinogens in their homes.

The Dupont Pompton Lakes site is the poster child for these problems caused by VOC’s in soils and groundwater.

Dupont currently has a cleanup plan for the Pompton Lakes site before the DEP. If allowed to go forward, this new DEP Guidance would apply to that proposed cleanup plan and let Dupont off the hook for complete cleanup of all contaminated soils and groundwater.

This would increase cancer risks to the people of Pompton Lakes and save Dupont millions of dollars in cleanup costs.

Amazingly, in the Guidance document, DEP openly admits that they are rolling back an existing prohibition of caps over VOC soil and groundwater and explains why the prior protective prohibition existed. DEP Guidance (@ p.3):

Previously, capping as a remedial option to prevent contaminants from impacting the ground water was not permitted by the Department, although capping has been allowed at sites for other reasons if the remedy for the Impact to Ground Water Pathway did not depend on the presence of the cap. In 2014, the Department released Capping of Inorganic and Semi-volatile Contaminants for the Impact to Ground Water Pathway guidance that allows for capping of inorganic and semi-volatile organic contaminants as a method to specifically address the impact to ground water pathway under certain conditions (www.nj.gov/dep/srp/guidance/rs/). Volatile contaminants were not included in the 2014 guidance because these contaminants may still migrate downwards, even in the absence of infiltrating rainwater when a site is capped, via vapor phase diffusion. This complicating factor regarding the capping of volatiles has now been addressed and capping as a remedy for addressing exceedances of default Impact to Ground Water Soil Screening Levels (IGWSSLs) and/or site-specific Impact to Ground Water Soil Remediation Standards (IGWSRSs) is now permitted under certain conditions for volatile contaminants.

The new DEP Guidance document will impact not only the Dupont Pompton Lakes site, but potentially hundreds of sites across the State. It is actually worse than the Christie DEP rollbacks to groundwater cleanup requirements.

Major corporate polluters have been seeking this specific “regulatory relief” from DEP for decades.

The allowance of “caps” – instead of complete excavation of VOC contaminated soils and treatment of groundwater – will shift risks to drinking water, surface water and the likelihood of residential exposure to vapor intrusion – like the 450 homes in Pompton Lakes.

The radical new DEP rollback policy announced in the Guidance document applies Statewide uniformly to hundreds of sites.  It would have dramatic substantive economic, environmental and public health impacts.

Because of this, it meets the criteria the NJ Supreme Court found require administrative rule-making procedures.

That NJ Supreme Court decision is known as the “Metro-media” decision (hit link for the Court’s opinion).

However, the DEP Guidance rollback was not adopted by DEP pursuant to rule making procedures.

Therefore, because the DEP’s radical new rollback Guidance document meets the Court’s criteria for defining a regulation and triggering rule-making procedures, and because it has not been subject to public notice and comment rule-making procedures, it violates the law and is vulnerable to legal challenge.

Calling the legal eagles! This DEP move can not stand!

It is easy for DEP Commissioner McCabe to criticize Trump EPA rollbacks.

But to do so while your DEP is rolling back historical protections is shameful and inexcusable hypocrisy.

[End Note: for context on “caps”:

In NJ law, capping is an “institutional control” – or a “non-permanent” “passive” remedy (sometime derided as “pave and wave”). Prior NJ law emphasized “permanent remedies”, i.e. complete cleanup of soil and groundwater: excavation of contaminated soils and treatment on groundwater.

Allowing institutional controls in lieu of permanent cleanups was part of the gutting on NJ’s ECRA law in 1993. ECRA was replaced by ISRA, see:

http://www.currenenvironmental.com/njdep-isra-process

Other NJ cleanup laws were further gutted in the 1997 Brownfield law.

The Corzine/Lisa Jackson 2009 privatization was the final nail in the coffin.

The NJ rollbacks were part of a national campaign run by the corporate polluters to reduce cleanup costs and liability .

To do this, industry lobbyists and lawyers were able to get “risk based” decision-making into Superfund. Caps were allowed to replace “permanent remedies” based on alleged acceptable risks, i.e. control of human exposure instead of removal of the contaminated soil and groundwater.

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Rethink Energy NJ Is Sabotaging The Fossil Moratorium Campaign

February 23rd, 2019 No comments

This is what deep corporate lobbying and propaganda look like

Climate crisis can be solved by markets, technology, consumers & experts

No need for government, regulations, citizens & democratic activism

[Update below]

Intro Note: The writer Jack London, in his classic 1905 book “The Iron Heel”, criticized the concept of “grab sharing”, where selfish unions cut sweet deals with the Oligarchs and sold out their working class brothers and fellow unions. Here’s an excerpt where London describes that:

Screen Shot 2019-06-27 at 4.44.34 PMTom Gilbert and Rethink NJ are engaged in good old fashion selfish “grab sharing”. ~~~ End Intro

Several times, and for a variety of reasons, I have criticized Tom Gilbert and the folks at Rethink Energy NJ.

I’ve questioned their strategy: i.e. a focus and emphasis on FERC, economics, and private property rights, while ignoring DEP, the Clean Water Act regulatory framework, and climate change.

I’ve questioned their lame tactics, reliance on corporate consultants and corporate lawyers, and attempts to marginalized or co-opt real grassroots activists.

I’ve even questioned Tom Gilbert’s competence, style, experience, qualifications, and leadership abilities. (I forgot to add that he’s a liar as well).

And I’ve linked all that to their corporate foundation Funders (Dodge, Chris Daggett) and self serving relationships with what I call NJ’s “Green Mafia” (a network of weak self dealers and opportunists, led by Mike Catania at Duke Foundation, Eric Stiles of NJ Audubon, Tim Dillingham of American Littoral Society, and Ed Potosnak of NJLCV).

Reasonable people can disagree about all that, of course.

But given the latest Rethink/Gilbert escapade, I am sickened by the fact that these are no longer just reasonable disagreements between reasonable people over strategy and tactics.

Let me be very clear: Rethink NJ is not just an ineffective, innocent and misguided group, pursuing flawed tactics and strategy and led by weak leadership and corporate lawyers, consultants, and Foundation funders.

They are active saboteurs of the most important climate campaign in NJ history.

Follow the sequence here:

1. On February 15, 2019, Jeff Tittel of NJ Sierra Club authored an Op-Ed in the Bergen Record on behalf of the “Empower NJ” campaign, see:

As a result of accelerating climate change and the probability of irreversible runaway climate catastrophe, Empower NJ is demanding that NJ Gov. Murphy (D) impose a statewide moratorium on new fossil infrastructure until plans and regulations with teeth are adopted to address climate change and the greenhouse gas emission reduction mandates of the NJ Global Warming Response Act.

Sierra Club is a longstanding leading Statewide group, a founding member of the Empower NJ Coalition, and Tittel often is quoted by and given Op-Ed opportunities in the Bergen Record.

The Bergen Record has covered the huge controversy over a proposed new gas plant and pipelines in the Meadowlands that Tittel focused on.

So, Record readers and the news and editorial sides of the Record are familiar with and invested in the issues discussed in Tittel’s Op-Ed.

These are the typical factors involved in editorial decisions about publishing Op-Ed’s, e.g. what controversial issues to cover and what groups and writers to publish. There was nothing unusual in Tittel’s Op-Ed publication, from the Record’s journalistic perspective.

2. Just 5 days later, on February 20, 2019, Tom Gilbert of Rethink NJ published a topically related but vastly different Op-Ed in the Record, see:

Gilbert and Rethink NJ are not members of the Empower NJ Coalition, are recently founded and not a recognized statewide group, and they are focused almost exclusively on the PennEast pipeline in Hunterdon and Mercer counties.

The PennEast pipeline is outside the north jersey coverage region of the Bergen Record. The Record has not covered the PennEast controversy and never quoted or given Tom Gilbert an Op-Ed opportunity (at least that I am aware of).

So, aside from Tittel’s 5 day prior related Op-Ed, it is highly unusual for the Record to be giving Gilbert an OP-Ed opportunity on a project and controversy that they haven’t even covered and purportedly written by an author and a group completely unfamiliar to Bergen Record readers.

When you consider the fact that the record published an Op-Ed on a related topic just 5 days prior, it is beyond highly unusual editorial practice and evidence of bad faith.

At a minimum, the Gilbert Rethink Op-Ed was an attack on and rebuttal of Tittel’s prior Op-Ed.

3. Most importantly, Tittel’s Op-Ed stressed 3 things:

  • accelerating climate crisis
  • a need for a moratorium and enforceable regulation to meet science based & legally mandated reductions
  • call for activism with a focus on political pressure on Gov. Murphy

In contrast, Gilbert’s message completely failed to even mention an accelerating climate crisis, or the need for a moratorium and strict regulations to meet the legislative mandates of NJ’s Global Warming Response Act, or for citizens to put political pressure on Gov. Murphy to impose a moratorium, as other Governors have.

Instead, Gilbert, by omission, downplayed the climate urgency, while he praised Gov. Murphy, and promoted markets and technological innovation to provide solutions, instead of government regulation and political activism. (no wonder Rethink just praised Sen. Booker – let’s not forget what Booker has done for PSEG).

Here is Gilbert’s essential message – there is no need for politics and regulation, just trust markets, technology, and experts:

There comes a time when it’s clear that the next phase of technology is a vast improvement over what came before – no matter how useful that outmoded technology once was.

Typewriters worked fine, but PCs are so much better.

Natural gas is about to become the next typewriter. There are now cleaner, safer, more affordable ways to heat, cool, and power New Jersey, like wind and solar, that far surpass what gas has to offer.

Gilbert says “there comes a time“? Is that some kind of lame attempt to echo Mario Savio’s immortal cry:

There is a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can’t take part. You can’t even passively take part! And you’ve got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you’ve got to make it stop! And you’ve got to indicate to the people who run it, to the people who own it — that unless you’re free, the machine will be prevented from working at all!

Of course, Gilbert is no Savio and is full of bullshit. But more importantly, his message is completely compatible with the strategic objectives and corporate profits of PSEG.

4. All of which takes us to the question of bad faith and active sabotage.

The highly unusual timing and editorial decisions by the Bergen Record are strongly suggestive of bad faith, but not determinative, or a smoking gun.

Here is the smoking gun:

Rethink NJ pays for a consulting firm for communication services, including drafting Op-Eds and working behind the scenes to get them published (it is not easy to get an Op-Ed published, and as noted above, Tom Gilbert meets NONE of the traditional qualifying tests for an Op-Ed opportunity).

That consulting firm is Taft Communications.

If you hit the link on “Client List”, you can see Rethink Energy NJ listed as a client.

But if you also look slightly above Rethink, you will see that PSEG is also a Taft client.

At best, that is a conflict of interest.

But, given that: a) I know Tom Gilbert and have questioned his competence – could he even draft an Op-Ed? – and b) the highly unusual Bergen Record editorial publishing decisions, AND c) the Taft linkage, it is not a huge leap to conclude that Taft drafted the Op-Ed, marketed it with national USA Today editors (over the head of the Bergen Record editors who know the local scene) and that Taft’s PSEG’s client interests were “harmonized” with the message of the Op-Ed.

I would even speculate that PSEG – who strongly opposes the moratorium Tittel and Empower NJ are calling for and has longtime relationships and has provided financial support to the Rethink crowd – had a role in either urging Taft or Gilbert to draft the Op-Ed and the USA Today editors to publish it.

It is even possible that PSEG corporate flacks actually drafted the Op-Ed and sent it over the transom to Taft or Gilbert.

That, my friends, is sabotage.

And exactly what deep corporate lobbying and propaganda look like.

[Full disclosure: I worked with NJ Sierra Club from 1995 – 2001, including several of those years with Jeff Tittel. I also was hired by and worked with Tim Dillingham when he was Sierra Director, around 1995]

[Update – 2/24/19 – just came across the piece, from The Nation, which makes a similar point:

While it’s not well-known outside the political class, many consultants who advise campaigns are often working for corporate clients at the same time—and all too frequently, these clients interests’ directly oppose the goals of any progressive coalition.Those working both sides of the street include some of the most senior aides from the Obama administration, and as well as advisers to both the Clinton and Sanders campaigns. From opposing progressive taxation to fighting for deregulation, working for corporate clients means pushing an agenda most progressives would consider a non-starter were it espoused by a political candidate.

And this is exactly what I suspect Taft Communications did in drafting Gilbert’s Op-Ed:

Solutions daring enough to solve the problems we face, like a Green New Deal, aren’t necessarily going to be “business-friendly,” and may not be endorsed by corporate America. Some consultants may—consciously or unconsciously—advise their candidates to take a softer stance on an issue because they can “see it from the business side of things.”

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