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NJ DEP Responds To Questions On PFAS Contamination At Delaware River Superfund Site

April 30th, 2021 No comments

In a Vague and Evasive Email, DEP Says No Decisions On PFAS Cleanup Made Yet

Public Raised PFAS Concerns During Superfund Process That Were Ignored By EPA

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I want to do a very quick followup on my prior post on the discovery of “forever chemicals” PFAS in groundwater at the Curtis Specialty Papers Superfund site along the Delaware River and NJ DEP’s issuance of a “CEA” that effectively suspends cleanup requirements. [see basic PFAS information from US EPA]

Frankly, I was surprised by this and asked EPA to respond to some important questions on how that all occurred.

The EPA Community Advisory Group (CAG) coordinator referred my initial questions to NJ DEP for response.

DEP responded via email yesterday, but in a way that didn’t answer some of my questions and raises more questions than it answers. DEP wrote: (emphases mine)

Hello Bill,

EPA asked me to respond to your email since the PFAS CEA was established by DEP.

Classification Exception Areas are established when ground water exceeds the applicable standards.  PFAS was detected above NJ standards at the Curtis site, therefore a CEA and well restriction area were established.  No decisions have been made regarding any remedial action requirements to address PFAS; the establishment of a CEA and WRA occur when contamination exceeding standards has been identified.

A full investigation of surface water and whether PFAS from the Curtis site has been discharged to the Delaware River has not yet been conducted.

Who detected the PFAS? When was it detected? At what levels? How do those levels compare to NJ DEP standards?

I fired off this email, seeking clarification and additional information:

Hi Gwen – thanks for your reply. Pat, please distribute this exchange to the full CAG, they deserve to understand what’s going on.

I have eight clarifying followup questions:

1. I understand the regulatory and scientific bases of a CEA, so I was confused by your statement that:

No decisions have been made regarding any remedial action requirements to address PFAS;”

Under NJ DEP GWQS (NJAC 7:9C-1.6), the CEA effectively waives compliance with GWQS, and thus waives any DEP “remedial action requirements”.

The CEA also “suspends” (i.e. waives) the GWQS designated uses (e.g. potable water supply, ecological use support, etc), per the definition of CEA:

“Classification exception area” means an area within which one or more constituent standards and designated uses are suspended in accordance with N.J.A.C. 7:9C-1.6

Given that the CEA suspends the [chemical] constituent standards and designated uses, how can the Department impose remedial action requirements? There are no violations to remediate.

It was my understanding that there were no remedial action requirements at sites where CEA’s were issued (unless the technical conditions upon which the CEA was established were violated).

Please correct me if I am wrong and cite the basis for your correction and provide a case illustration where DEP has imposed remedial action requirements where a CEA was issued.

2. Was the CEA issued with a public notice and public comment period?

3. Whose final decision is it to impose remedial action requirements at a Superfund site?

My understanding is that it is EPA’s final decision, and that EPA could accept the NJ DEP CEA (no remedial action) as a State ARAR.

Please correct me if I misunderstand.

4. Has EPA agreed to accept the DEP CEA as a State ARAR?

If not, when will and how will this decision be made?

5. When you write that:

“No decisions have been made regarding any remedial action requirements to address PFAS;”

Whose remedial action decisions are you referring to (EPA or DEP)?

6. When you write:

“A full investigation of surface water and whether PFAS from the Curtis site has been discharged to the Delaware River has not yet been conducted.”

What future investigation are you referring to? Who would conduct this investigation? Who would oversee this investigation?

Who would make the decision regarding whether to require this investigation, EPA or DEP?

7. When you use the term “surface water investigation”, would that include sediments and biota?

Would that include assessment of ecological damage and Natural Resource injuries?

My understanding is that neither the  US FWS nor the DEP have conducted an NRD assessment at this site, despite known discharges of regulated hazardous substances (from runoff and groundwater) to the Delaware River. Please correct me if I am wrong.

8. One final point and question for EPA:

Will EPA modify and re-open the ROD for public comment?

The public raised concerns about the presence of PFAS during public comment on the ROD, see: (Brian Weeks – in Appendix 5C)):

“Did EPA find any perfluorooctanoic acid (PFOA) or related chemical on the site? As you know, PFOA has been used as coatings on food contact paper, and it is a persistent pollutant with long-lasting environmental and human health concerns. The EPA documents for this site do not state whether PFOA was used in any operations on the site. Ifthey were, I suggest sampling and developing a remediation plan to ensure that this harmful chemical does not remain on the site.”

Here’s how EPA responded to that question: (emphases mine)

“Perfluorooctanoic Acid

Comment #2: A commenter asked whether site operations included use of perfluorooctanoic acid (PFOA) or related chemicals as coatings on food contact paper and, if so, whether they were detected at the site.

EPA Response to Comment #2 : EPA is not aware of any site records that indicate PFOA was used at the site.There are records that certain products used on site contained fluoroaliphatic compounds (fluorochemical copolymers Scotchban FC-807 and Scotchban FC-845), which could be considered chemicals in the same family as PFOA. Scotchban FC-807 is a former 3M product that contained Ammonium di-2-(ethyl-heptadecafluorosulfonamido)ethylphosphate. Scotchban FC-845 is a former 3M product that contained an emulsion copolymer of a fluoro acrylate, 2-ethoxyethyl acrylate, diethylaminoethyl methacrylate methyl chloride salt, glycidyl methacrylate, and octyl mercaptan using as emulsifier an ethoxylated amine salt. As these products were applied as coatings, the likely location for the use of the Scotchban products was the CFA. Soils from the CFA were excavated and disposed off-site during site activities, minimizing the potential for these compounds to continue to be present.”

I look forward to your timely response and please provide links to relevant documents.

Bill Wolfe

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Bureaucratic Bombshell: USEPA Quietly Approved NJ DEP Deregulation of Cleanup Of PFAS Groundwater Pollution At Curtis Specialty Papers Superfund Site In Milford NJ

April 26th, 2021 No comments

Are PFAS In Groundwater Discharging Into Adjacent Delaware River?

EPA Provides “Corrected” Agenda Less Than 1 Hour Prior to Public Meeting

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[Correction: apologies. The prior version of this post had a major error in the title! My brain said “Curtis Specialty” but my fingers mysteriously typed “Crown Vantage”. The error has been corrected.]

I’ve written multiple posts critical of the cleanup of the Curtis Specialty Papers Superfund Site in Milford NJ, along the Congressionally designated “Wild and Scenic” Delaware River for over a decade, see (with many photos of the site):

Many of those criticisms focused on groundwater contamination and potential discharges to the Delaware River and the resultant injuries to natural resources.

Although I haven’t been involved on the site during our 5 year western tour, I remain on the EPA’s “Community Advisory Group” (CAG) email distribution list.

My apologies to readers, especially the folks in Milford, if I missed the discovery of PFAS in groundwater. When was it found? How high are the levels? Is there discharge to the Delaware?

During this 5 year period, the issues related to PFAS have exploded in the grassroots activist community and gotten enormous media coverage. NJ DEP has been portrayed as a leader in strict regulation, especially at NJ Spotlight by reporter Jon Hurdle.

The Burlington County Times even created the false impression that DEP was enforcing PFAS cleanup requirements at McGuire AFB and wanted EPA to enforce them at Curtis Specialty:

[NJ DEP] Pedersen wrote the office again in April, roping PFAS in with several other state-regulated chemicals that he wanted the EPA to prioritize at contaminated sites under federal control. Pedersen even offered an example, saying there is likely PFAS contamination at the Curtis Paper Superfund site in Hunterdon County, and asked the EPA to sample for the chemicals there.

As we now know, exactly the opposite it the case: DEP just waived compliance with groundwater quality standards (see how they did that below).

I’ve criticized much of that coverage as cheerleading, while ignoring relevant regulatory issues.

So, I was surprised to just now receive an unusual email from EPA Superfund CAG coordinator Pat Seppi providing a “corrected” meeting agenda, sent less than 1 hour before the CAG meeting tonight.

The corrected agenda included this bureaucratic bombshell as “site progress since January 2021″:

PFAS IN GROUNDWATER – CEA/WRA for PFAS approved April 14, 2021

What? How they hell did that happen with no community opposition and media coverage?

I doubt that many people in the community understand what this bureaucratic jargon means – or that it was fully and properly explained to them by EPA and NJ DEP at a formal public meeting and reported by the media – so let me take a quick stab at explanation.

But first, let me provide some background and context.

I) EPA ignored public criticism, including on PFAS risks

First of all, the EPA takes the position that the community supports the EPA’ cleanup, see ROD at page 22:

Community Acceptance

Comments received during the public comment period indicate that the public generally supports the selected remedy. Oral comments were recorded from attendees at the public meeting held on May 28, 2015. Written comments were received during the public comment period (May 19 to June 29, 2015) from 11 commenters. The Responsiveness Summary addresses all comments received during the public comment period (see Appendix 5).

So called “public support” was politically orchestrated by short-sighted local officials, who sought redevelopment and property tax ratables.

Second, EPA ignored not only all my criticism, but this man’s specific comment as well (Brian Weeks – buried in Appendix 5C)):

4) Did EPA find any perfluorooctanoic acid (PFOA) or related chemical on the site? As you know, PFOA has been used as coatings on food contact paper, and it is a persistent pollutant with long-lasting environmental and human health concerns. The EPA documents for this site do not state whether PFOA was used in any operations on the site. Ifthey were, I suggest sampling and developing a remediation plan to ensure that this harmful chemical does not remain on the site.

Here’s how EPA responded to that with evasions:

Perfluorooctanoic Acid

Comment #2: A commenter asked whether site operations included use of perfluorooctanoic acid (PFOA) or related chemicals as coatings on food contact paper and, if so, whether they were detected at the site.

EPA Response to Comment #2: EPA is not aware of any site records that indicate PFOA was used at the site.There are records that certain products used on site contained fluoroaliphatic compounds (fluorochemical copolymers Scotchban FC-807 and Scotchban FC-845), which could be considered chemicals in the same family as PFOA. Scotchban FC-807 is a former 3M product that contained Ammonium di-2-(ethyl-heptadecafluorosulfonamido)ethylphosphate. Scotchban FC-845 is a former 3M product that contained an emulsion copolymer of a fluoro acrylate, 2-ethoxyethyl acrylate, diethylaminoethyl methacrylate methyl chloride salt, glycidyl methacrylate, and octyl mercaptan using as emulsifier an ethoxylated amine salt. As these products were applied as coatings, the likely location for the use of the Scotchban products was the CFA. Soils from the CFA were excavated and disposed off-site during site activities, minimizing the potential for these compounds to continue to be present.

Well, I guess those chemicals are present!

II)  What IS a CEA and WRA?

A CEA stands for “classification exception area”.

A WRA stands for “Well restriction area”. A CEA are WRA are issued by the NJ DEP.

These are known as “institutional controls” – they do NOT cleanup the site, but leave contamination in place and warn people not to use groundwater as water supply. No wonder NJ DEP’ CEA webpage hasn’t been updated for over a decade. DEP doesn’t want the public to understand massive loopholes in NJ cleanup laws and DEP cleanup regulations than benefit corporate polluters.

Apparently, DEP quietly issued a CEA and WRA and EPA signed off on the State’s actions under the federal Superfund law. No self serving press releases about all that! Was there a public hearing about it? Nope.

Both decisions are terrible.

A CEA basically waives compliance with NJ DEP’s “groundwater quality standards”, typically for decades, allowing pollution to remain in the groundwater and not be cleaned up. Often, groundwater pollution under a CEA migrates off site and impacts sensitive natural resources.

A CEA lets the polluter off the hook for major cleanup costs and threatens the long run health of the Delaware River.

These are the kinds of DEP decisions you get from a former lawyer for corporate toxic polluters (Mr. LaTourette).

Why has this received no media attention of public opposition?

Did the new Biden or Trump EPA Region II Administrator sign off on this? Will someone ask Frank Pallone?

The public meeting is tonight in Milford – so again, EPA is dodging my criticism.

So, I fired off this email to Pat Seppi of EPA and copied the CAG distribution and a copy to Jon Hurdle of NJ Spotlight, Tracy Carluchio of DRN, and Jeff Tittel of Sierra Club:

Hi Pat – I note that the agenda states that:

“CEA/WRA for PFAS approved April 14 , 2021″

Am I correct that this means that NJ DEP granted a CEA (classification exception area) for PFAS?

Can you provide the technical background on this?

The community should understand that a CEA waives compliance with the NJ DEP groundwater quality standards – those standards are established to protect public health and the environment. Typically, a CEA waives compliance for decades.

Have PFAS been discharged to the Delaware River?

Was that analyzed in the prior remedial action documents, including the Natural Resource Damage assessments?

Apologies for having been out of the loop on this for awhile – I’ve been out west.

Bill Wolfe

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A Simple Earth Day – Dispatch From FDR’s “Little White House”, Warm Springs, Georgia

April 22nd, 2021 No comments

Headwaters Of The Green New Deal

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We celebrate our Earth Day with a sense of quiet contentment – and sombre reflection after a tour of FDR’s “Little White House” in Warm Springs, Georgia.

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How fitting a day for the Green New Deal bus to be amid the history of the original New Deal, particularly in light of the recent political events in Georgia and the reintroduction of the Green New Deal Resolution by AOC and Friends.

After heading out of the southern Arizona desert upon the onset of the first 100 degree day and heading across magnificent southern Utah, as we were headed east and coming across the midwest, we got hammered with a week of cold, high winds, snow and rain.

In looking for a way out of this miserable weather, I set upon my own “southern strategy” – and thought Warm Springs Georgia would be a great place to visit.

We arrived in town late afternoon yesterday, and because FDR’s site was about to close, after getting help from a ranger about where I could park for the night (he suggested the Baptist Church parking lot), we headed downtown. First stop: Mac’s BBQ. The pulled pork was out of this world! We’re heading back for dinner today.

Most of the local shops were still closed, not yet open for the season.

First thing this morning, we went back to FDR’s place for the day.

As you enter, you pass through the museum. The architecture reminds of Frank Loyd Wright.

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I was disappointed with the displays (infotainment), as there was not much on the New Deal and key programs, particularly like the Civilian Conservation Corps (CCC). But the inclusion and depiction of rural electrification was interesting. That could be because the site is owned and run by the State of Georgia – not federal National Park Service. FDR deeded the place to the State of Georgia. There were similar style and omissions at the crappy gift shop, but I did buy books on the Georgia CCC and FDR’s Famous Speeches.

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But The Little White House itself – and the landscape – are simply magnificent.

The scale, craftsmanship, and simplicity of the furnishings at once gave a sense of intimacy and yet a creepy almost voyeuristic feel of intrusion into a very private space. (FDR died there on April 12, 1945). (and sorry, I forgot to reset my outdoor white balance and the colors are so terrible!)

Visitors enter through the side door, into the kitchen:

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The muted light, rich wood paneling, and simply crafted artifacts stimulate an incredibly moving and somber mood and sense of contentment.

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I was told by the host – a black woman – that the wood that built the place was harvested locally.

On the way out, I mentioned how much I enjoyed the simplicity and dignity to the lady at the museum desk. She replied that FDR knew he was among poor people and intentionally kept it simple because he didn’t want to lord it over or create any impression that he thought he was better than the locals.

That kind of humility, simplicity, craftsmanship, and dignity permeates the place. Just like his politics and New Deal programs, his compound shows a deep respect for nature and the common people.

[Update: To illustrate that point, I’m just now reading FDR’s first “Fireside chat”, on Sunday evening March 12, 1933, on the banking crisis and his “bank holiday” (which I was not aware followed bank closures by many states). Here’s the brilliant conclusion of a brilliant speech (emphases mine):

After all there is an element in the readjustment of our financial system more important than currency, more important than gold, and that is the confidence of the people. Confidence and courage are the essentials of success in carrying out our plan. You people must have faith; you must not be stampeded by rumors or guesses. Let us unite in banishing fear. We have provided the machinery to restore our financial system; it is up to you to support and make it work.  ~~~ end update]

FDR the man is perfectly reflected in his landscape design, architecture, and interior decoration, perhaps more so than other FDR estates I’ve visited, including FDR’s home and Presidential Library in Hyde Park, NY on the Hudson River and FDR’s Campobello summer place in Canada (scroll down for photos).

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An Orwellian Earth Day

April 20th, 2021 No comments

NJ Democrats Push Forest Logging Bills On Earth Day

Source: NJ DEP Wetlands Forestry BMP Manual (1995)

Source: NJ DEP Wetlands Forestry BMP Manual (1995)

As if the nomination of a former corporate lawyer as DEP Commissioner weren’t enough of an insult and Orwellian nightmare – amid an accelerating collapse – tomorrow (Earth Day) the NJ Senate Environment Committee will hear a package of bills to promote logging. Even the bill descriptions are Orwellian:

  • S2001 – Forest stewardship program-establishes for State-owned lands
  • S3547 – Forest stewardship, pinelands,
  • S3548 – Prescribed burns-set min. acreage goal & schedule in pinelands area & Statewide
  • S3549 – Forest stewardship plan-required for lands acquired
  • S3550 – Forest stewardship plans-provide that municipal approval is not required

Senate Environment Committee Chairman Bob Smith has been pushing this ill advised legislation for over a decade. He is responding to the sham and misleading self interested lobbying of the NJ Audubon Society, the NJ Farm Bureau, the forest products industry, and professional forestry consultants. NJ Audubon reveals that truth:

The invitation from committee chair, Senator Bob Smith, requests technical information on the value of forest management plans on publicly-owned lands in the state.  Information from hearing experts will inform members about science-based practices and sound policies to protect NJ’s valuable resources, forests.

The NJ Farm Bureau makes their economic interests very clear:

Landowners with mostly forested properties now will have ways to tap some of the equity in their land while retaining the farm. A forest easement purchase program allowed by policy in the RMP is included in the new land conservation rules being considered by the Highlands Council. Farm Bureau with the Department of Agriculture will make sure that the Council removes any obstacles to timely implementation of such a program in which the landowner can continue to follow a Woodland Management or Forest Stewardship plan to continue Farmland Assessment.

Remarkably, even Gov. Christie – no friend of NJ’s forests, the Highlands, or public lands – vetoed the Forest Stewardship bill the Democratic legislature passed back in 2012.

So, I fired off this note:

Dear Chairman Smith and members of the Senate Environment Committee:

I write to strongly oppose the package of bills regarding “forest stewardship”.

I will confine this note to a few brief points, as the bills are up for discussion only (and I am on the road today), and reserve my right to revise and extend these comments with more detailed and substantive testimony.

1. Climate Emergency – Carbon sequestration

The bills, the proposed DEP’s draft “Forest Action Plan”, and current Forest Stewardship planning and field practices not only fail to consider and promote maximum carbon sequestration, but they would promote active management practices that significantly reduce current forest carbon sequestration and the prospective capacity to sequester additional carbon.

(See this for links to and analysis of DEP’s draft “Forest Action Plan”:

The bills conflict with the science and carbon sequestration policies and targets in DEP’s  Global Warming Response Act 80 X 50 Report (see Chapter 7:

https://www.nj.gov/dep/climatechange/docs/nj-gwra-80×50-report-2020.pdf#page=168

Mature intact forests store far more carbon than “actively managed” and “young forests” promoted by these bills.

Given the climate emergency, the goals of the GWRA, and the sequestration targets set by DEP, these flaws alone should be sufficient to convince legislators to abandon the current version and fundamental “active management” approach of these bill.

2. Conflicts With the Highlands and Pinelands Acts

A fundamental assumption in the Highlands conservation strategy was that fragmenting forests and opening the canopy were to be avoided because they created a host of negative effects and dynamics, perhaps most important was because disturbance increased edge effects, destroyed interior forest habitat, created erosion, impaired water quality, and increased sunlight on the forest floor fueled a proliferation of invasive species.

The bills conflict with this strategy.

3. Lack of Effective Regulatory Oversight

There are huge gaps in NJ laws and DEP regulations regarding practices that may fit the definition of “forest  stewardship”. The DEP’s Forestry Wetlands BMP Manual is over 26 years old – adopted before the passage of the Highlands Act and DEP’s C1 waters 300 foot buffer programs – and, among other things, allows just 25 foot buffers and logging on steep slopes, stream buffers, and vernal pools. For details and links, please see:

I would add that the prescribed burn provisions of these laws would exacerbate NJ’s chronic air quality problems, particularly with respect to fine particulate pollution, a significant health threat and regulatory compliance issue that is completely ignored, see:

4. Forests Are Public Lands – “Active Management” Impairs Public Uses

5. The bills would pre-empt local government, the most democratic institution in NJ

6. The premises and scientific rationale for “active management” are dubious and challenged by credible independent science

a) Prescribed burns do not reduce wildfire risks. Those risks are a function of climate, drought, temperature, relative humidity and wind.

b) “Active Management” to create “young forest” habitat is illusory and destroys other habitat and conservation values.

Flawed Conservation Rationale

We are left scratching our head, because the bills are at odds with the fundamental conservation strategy that led to the passage of the Highlands Act.

The prime conservation imperative in passage on the Highlands Act was preservation of the existing large tracts of contiguous forest, maximization of forest canopy cover, and prevention of fragmentation.

Those regional management objectives were initially espoused by the US Forest Service:

  • The Highlands serve as a major migratory flyway for many neotropical bird species, many of which populations are in decline. Of particular concern to ornithologists are the 70 to 75 species of interior nesting neotropical migrants such as the red-eyed vireo, American redstart, Kentucky warbler, and eastern pewee. These species require large undisturbed forest patches.
  • Fragmentation and alteration of habitat continue to pose the greatest threat to the biological communities in the Highlands. The rapid expansion of urbanization encroaches on and fragments habitat, destroys individuals as well as populations, and potentially threatens the continued existence of many biological communities. Degradation of habitat by direct destruction or indirectly through pollution, erosion, introduction of invasive species, or fragmentation threatens the existence of species, diminishes natural communities, and reduces genetic variability.  ~~~ NJ/NJ Highlands Regional Study (US Forest Service, 2002)

Active management  to create “young forests” would destroy habitat for interior forest species and other conservation and water resource values provided by intact mature forests.

c) NJ Forests are diverse – they are not “single age class” or “middle aged” as claimed by proponents of this legislation. See US FWS studies cited above. DEP’s own forest planning documents and data also refute these claims.

7. NJ DEP economic research proves that preserved forests provide far more “ecological services” and economic value that “actively managed” forests subject to “treatments” (i.e. logging)

DEP’s own Report on “Natural Capital”, which found that forests have far more economic and ecological value as forest, than as for logging or timber:

The Corzine DEP produced a report:   Valuing New Jersey’s Natural Capital: An Assessment of the Economic Value of the State’s Natural Resources. That report found that forests have far more economic value as forest than harvested as commercial logging. DEP needs to dust off that report and apply it to future management policies.

8. All the supporters of the bills have private economic interests and elevate them above competing public interests.

The NJ Farm Bureau and others like NJ Audubon have openly testified that the objectives of the legislation are to re-establish a commercial logging industry in NJ.

Source: “Statewide Forest Assessment” NJDEP – (2010)

Source: “Statewide Forest Assessment” NJDEP – (2010)

I previously exposed this economic motivation to restore an in state commercial logging industry during the controversial debate on proposed “Forest Stewardship” legislation, by quoting the testimony of the NJ Farm Bureau:

“In the early 1980’s, the state stopped participating in timber sales. So the state lands that were managed in timber, up to that point in time, were an important part of  attracting the timber industry to the State. The State owns half or more of the wooded lands, so its been on the back of smaller producers to attract competition to the state. And what they’ve ended up with is the one guy who wants to come and cut in NJ, kind of setting the market price. And so we’ve had a depressed value of our wood products.

We see, by the State re-entering into a managed timbering process, that  more vendors will be attracted  to come into the state and then they’ll pick up those smaller [private] parcels … and we’ll see an economic benefit to our state, for the private forest lands as well as the public lands, because landowners will have more options in how they do those managed cuts. […]

And then its the  ability of the State to recoup those costs through the sale of the timber. … 

With the increased participation by the state we will see increased competition amongst those that harvest these products and better prices  which them improves the overall wood and timber industry in the state.”

It’s obvious that this legislation is about logging NJ forests under cover of various sham ecological and conservation claims.

9. The bills are a component of a national campaign to expand commercial logging, particularly in mature northeastern hardwood forests

10. It is an insult to the legacy of Earth Day that bills that would promote logging of public forests and ignored and exacerbate the climate emergency are considered on Earth Day

Senator Smith has been pushing this ill advised legislation since at least 2012.

It’s time to abandon the entire approach, if only for the climate emergency.

Respectfully,

Bill Wolfe

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NJ Gov. Murphy’s DEP Commissioner Was A Corporate Hired Gun Who Crippled DEP’s Natural Resource Damage Program

April 19th, 2021 No comments

LaTourette Represented Essex Chemical In Key Appellate Court Precedent That Struck Down DEP NRD

NJ Gov. Murphy issued a highly misleading press release in support of his nomination of Shawn Latourette as DEP Commissioner. As I wrote last week:

Gov. Murphy’s press release announcing the nomination misleadingly portrays LaTourette as a public interest champion and fails to mention the fact that he was a corporate lawyer and represented some of NJ’s biggest corporate polluters, including the controversial LNG export facility.

But Mr. Latourette’s record is even worse than I realized.

The facts are that Mr. LaTourette is no public advocate – instead his career illustrates the damage a corporate hired gun can do.

We previously exposed the fact that LaTourette was the lawyer for the controversial Fortress Energy LNG export plant.

But we had not realized that Mr. LaTourette was a lawyer that helped gut the DEP’s Natural Resource Damage (NRD) program – the program he now presides over and has failed to reform – allowing corporate polluters to dodge billions of dollars in NRD liability.

For over 15 years, I’ve followed and have written multiple posts about the DEP’s NRD program.  I exposed why it fails and allows polluters to pay just pennies on the dollar for the destruction of NJ’s natural resources, including critical groundwater drinking water supplies.

I even petitioned the Christie Administration State Comptroller to investigate the DEP’s NRD program, see:

One of the DEP NRD failures I cited in that petition was the Essex Chemical case.

I even wrote about the Essex Chemical case in response to the Appellate Court’s decision, see:

The core issue is DEP’s longtime failure to adopt legally enforceable regulations that value the economic damages to natural resources caused by polluters.

In the wake of the Christie administration’s corrupt settlement of a DEP proposed $8.9 billion for just $225 million,  the New Jersey Law Journal story documented, as we’ve written, that DEP lost all 3 NRD cases it litigated, going back over a decade to 2004 as a result of this core failure. Those cases include:

  • New Jersey Society of Environmental & Economic Development (SEED) v. Campbell(N.J. Super. Law Div., Mercer County, 2004)
  • N.J. Dept. of Envtl. Prot. v. Exxon Mobil Corp., Docket No. MER-L-2933-02 (N.J. Super. Ct. Law Div. Aug. 24, 2007
  • New Jersey Department of Environmental Protection, et al. v. Essex Chemical Corporation (Appellate Division, 2012)

Mr. Latourette represented Essex Chemical Corporation and his legal advocacy basically killed the DEP’s NRD program – read the Appellate Division decision in that case:

On this basis alone LaTourette should fail to gain Senate confirmation.

The NJ Law Journal story makes this very clear:

But some lawyers and environmental advocates said the state’s failure to adopt a methodology for calculating damages for harm to natural resources through the formal rule-making process—as it committed to do more than a decade ago when it settled another suit—may have weakened its negotiating position and led to a lower settlement in not just the Exxon case but in other natural resource damage suits it has brought. …

Bill Wolfe, the director of nonprofit environmental advocacy group New Jersey Public Employees for Environmental Responsibility, said the issue is one he’s been raising since the SEED case.

Wolfe is not a lawyer but spent 13 years as a policy analyst and planner for the DEP, and was policy director for the Sierra Club’s New Jersey chapter for seven years.

Wolfe said the lack of valuation rules leaves the state vulnerable to challenges on the amount of damages. The state “knows it has a weak legal hand,” making it reluctant to push too hard and more willing to settle, Wolfe said, adding that Exxon’s lawyers are “sharp enough to know this” too. “There’s this wink and a nod going on where the DEP is saying, ‘We won’t squeeze you too hard if you just come to the table and settle,’” Wolfe said, adding that it’s been “a quiet little dance for 10 years,” with the state knowing it can’t get more than pennies on the dollar.

DEP still has not adopted regulations to enforce the NRD program. That failure continues to undermine the State’s legal hand and allow polluters to settle for pennies on the dollar.

Senator Smith established a Legislative TaskForce to develop these standards.  As NJ Spotlight reported:

Another problem with the [NRD] lawsuits is the state lacks any objective standards to monetize damages to New Jersey’s natural resources. Sen. Bob Smith, the chairman of the Senate Environment and Energy Committee, set up a legislative task force of industry experts and environmentalists to try and come up with a framework to establish such standards.

That Senate NRD Standards Taskforce has been abandoned and has done nothing.

If confirmed by the NJ Senate, Mr. LaTourette would preside over the DEP’s NRD program, a program that he essentially killed via his legal work on behalf of corporate polluters.

But LaTourett’s corporate whoring is not limited to Fortress Energy LNG and Essex Chemical NRD. Take a look at his ethics disclosure and recusal forms, which reveal that he represented:

  • Congoleum
  • Dupont
  • FMC
  • Novartis
  • Kinder Morgan
  • Weeks Marine
  • JIS Landfill Superfund Responsible Parties
  • Stag Industrial
  • Universal Preserv-A-Chem
  • Akzo Nobel

Gov. Murphy has got some big pair of balls to fob off this corporate hired gun as some public interest advocate.

Certainly all this deserves coverage prior to LaTourette’s Senate confirmation hearing, especially given Gov. Murphy’s press release claims.

[End Note: The Gov.’s claim was not supported by any facts and I have been unable to document Gov. Murphy’s claims that:

LaTourette began his career partnering with the Erin Brockovich law firm to organize and defend New Jersey communities whose drinking water was contaminated by petrochemicals

I ask readers to shoot me an email if you know where and when and how Mr. LaTourette was doing any of this. ~~~ end]

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