WolfeNotes.com

Far Easier To File A Lawsuit Than To Enact Statewide Regulatory Protections

Filing Lawsuits And Issuing Press Releases Do Not Constitute Governing

35 YEARS After EPA Risk Assessment, Still No Drinking Water Standard For Dioxane

The Murphy DEP just announced another major lawsuit against chemical manufacturers and they did so in another spun and self congratulatory press release, see:

• AG Platkin, NJDEP, and Division of Consumer Affairs Announce 1,4-Dioxane Contamination Lawsuit

This latest lawsuit again combines traditional Natural Resource Damage (NRD) claims and novel consumer fraud claims. DEP has not faired well in NJ Courts on NRD lawsuits, and the consumer fraud claims add new layers of complexity and legal vulnerability. We tried to highlight flaws in that approach:

• DEP Lacks Authority To Enforce Directive Against Toxic PFOA Polluters Dupont, 3M & Dow

I suspect that AG Grewal issued the lawsuit in part because he realized that the DEP Spill Act Directive was not enforceable. That AG ligation raises even more complex and novel legal issues – blending consumer fraud with environmental laws

The public release of this latest lawsuit comes at a time when DEP is facing strong criticism from the Toms River community for their corporate friendly compromise NRD settlement with chemical industry giant BASF, see:.

• Ten Good Reasons Why The Murphy DEP’s BASF Toms River Superfund Site NRD Deal Is A Corporate Giveaway That Must Be Withdrawn

We previously tried to explain what’s really going on with these lawsuits, see:

• Murphy DEP Lawsuit Exposes Huge Flaws In DEP’s Natural Resource Damage and Toxic Site Cleanup Programs

This time around, the text of the DEP lawsuit and prior DEP public statements in Toms River make our case. No need to take our word for it.

I)  Litigation Failures

At the recent public meeting in Toms River, a DEP manager of the NRD program openly admitted that it takes decades to prosecute these NRD cases (the BASF litigation was filed in 2007) and that DEP runs significant legal risks and therefore settles for pennies on the dollar and without any community involvement.

No need to take my word for those claims, which I have repeatedly made for over 20 years. Just watch it! (NJ Spotlight TV):

• Toms River residents skeptical about plan for Ciba-Geigy site

DEP and the AG have bitten off so much more than they can chew and they are playing a weak legal hand, by their own admission!

• Murphy DEP Says They Were Flying Blind In Negotiating $200 Million Pollution Settlements With Big Oil

The Murphy administration even sought private law firms to ameliorate some of these legal deficits:

• Murphy DEP Refuses To Disclose How Much Hired Gun Law Firms Will Be Paid In Ford Motor Company Ringwood Lawsuit

But, all that will be forgotten in the reporting on this latest round of litigation.

It seems that whatever DEP does generates good press and great headlines, which is really all they are after.

The decade long delays, legal losses, and the ultimate far down the road pennies on the dollar settlements will all occur years after they are long gone. Very likely, the media won’t even report on the progress and – when the results are in – the outcome of these lawsuits.

This is because the issues are complex and press lacks subject matter expertise. They also ignore or lack knowledge of the history and the context – and they never read the actual government documents they report on (but the legal documents make good visual props in the superficial TeeVee coverage).

II)  Regulatory Failures

Here is the context for dioxane in drinking water:

• Ford Ringwood Superfund Debate on Chemical 1,4, Dioxane Illustrates Flaws In Drinking Water Standards (2016)

But contrary to the media TeeVee cheerleading, this latest round of DEP litigation again actually exposes DEP regulatory failures.

Those DEP regulatory failures are presented explicitly, right out in the open in the lawsuit document itself, in paragraphs #39, #40 and #41:

39. A chronology of DEP’s development of Groundwater Quality Standards (“GWQS”) for 1,4-dioxane is as follows:

A.   2008: An Interim Specific Groundwater Quality Criterion (“ISGWQC”) of 3 ppb became effective in February 2008, for which the DEP relied on the EPA (1988) Integrated Risk Information System (“IRIS”) assessment of 1,4-dioxane.

B.   2010: A revised ISGWQC of 0.35 ppb was recommended in 2010 following DEP review of the EPA IRIS (2010) updated cancer slope factor.

C.   2018: DEP adopted a GWQS of 0.4 ppb for 1,4-dioxane. The earlier ISGWQS value of 0.35 ppb was rounded to one significant figure, as specified in the DEP GWQS regulations.

40. Of an estimated State population of 8.9 million, about 3 million people rely on groundwater from public water supply wells and private domestic potable wells. The DEP GWQS for 1,4-dioxane ensures that a standard based on current scientific information is in place to protect, maintain, and restore groundwater quality. The GWQS also establish minimum standards for the remediation of contaminated groundwater.

Let me try to explain why that text in P. #39 illustrates DEP regulatory failures and P. #40 is highly misleading.

First of all, the 2008 DEP Interim Specific Groundwater Quality Criterion (“ISGWQC”) relied on 20 year old 1988 EPA risk assessment.

Not only was this EPA risk assessment out of date at the time DEP relied on it, DEP failed to follow the recommendations of its own risk assessment scientists and adopt more current science and more protective NJ State specific DEP risk assessment procedures.

DEP had clear legal authority and staff scientific expertise to do so and they didn’t.

Second, back in 2014, we wrote to expose and explain the regulatory flaws and limitations of the sham of a Interim Specific Groundwater Quality Criterion (“ISGWQC”), see:

• Is DEP Faking It on Proposed New Draft Interim Groundwater Standard for PFNA?

Third, it took 10 years for DEP to finally adopt the 2008 (2010 updated) ISGWQC as an actual groundwater quality standard (GWQS) in 2018.

Recall that EPA adopted a IRIS risk assessment way back in 1988. But there is not only long delay involved. While a GWQS does apply to the cleanup of groundwater at toxic sites, it is NOT a drinking water standard. Which takes us to the misleading aspects of Paragraph #40.

During this 30 year period, DEP knew – but never warned the public or adopted regulatory protections – that millions of NJ residents were exposed to unsafe drinking water. 

Repeat: 30 years after the 1988 EPA IRIS risk assessment, NJ DEP still had not put protective standards in place and they failed to warn the public about these known risks.

Immediately following the paragraph #39 chronology of a GWQS, the DEP accurately states that about 3 million people rely on groundwater as water supply and that a GWQS applies to the cleanup of groundwater.

The clear implication here is that their drinking water is protected by the GWQS. But that is totally false and highly misleading. A GWQS is NOT a drinking water standard and it does not protect drinking water or require treatment of drinking water to remove the chemical.

Not until we get to paragraph #41 is the drinking water issue made clear:

41. On September 24, 2021, the New Jersey Drinking Water Quality Institute recommended to the DEP Commissioner an MCL of 0.33 ppb for 1,4-dioxane after review of its basis, which adopts and follows the EPA’s cancer risk assessment for 1,4-dioxane.  DEP Commissioner Shawn LaTourette accepted this recommendation on December 16, 2021. Following this, DEP began initiating the stakeholder and rulemaking process, which remains ongoing as of the date of this filing. Once this rulemaking process is complete, New Jersey will have an enforceable drinking water standard for 1,4-dioxane.

Did you get that?

DEP still has no drinking water standard in place, 35 YEARS after the initial EPA 1988 IRIS risk assessment.

But the reality is even worse. Far worse.

Way back in 2010, because of the extensive delays, scientific unknowns, scientific uncertainties, and scientific and regulatory complexities of conducting chemical specific risk assessments and chemical specific drinking water standards. Here is DEP’s 2010 policy paper:

• Investigations Related to a “Treatment-Based” Regulatory Approach to Address Unregulated Contaminants in Drinking Water

DEP and DWQI scientists recommended that DEP adopt a “treatment based approach” to require that water companies install currently available treatment  to remove these unregulated chemicals. see:

• New DEP Report Shows Advanced Treatment Removes Toxic Chemicals from Drinking Water

We even filed a petition for rulemaking in 2010 to force DEP to implement these recommendations. DEP denied the petition.

We warned about DEP’s legal procedural failures:

So, in doing some followup research on this legal issue, I found a related decision by NJ Appellate Division that struck down DEP’s  2014 “Interim Specific Groundwater Quality Standard” (ISGWQS) for “forever chemicals” PFNA.

At the time, I warned that DEP’s proposal was illegal and violated the NJ APA:

“it is NOT adopted as a formal regulation in accordance with formal rule making procedures. This procedural defect raises issues of whether the ISGWQS can be enforced and it invites litigation by the chemical companies that DEP may try to apply it to.”

Of course, the chemical industry immediately sued DEP and won.

And of course, none of this got reported by the cheerleading media or criticized by environmental groups, but the corporate lawyers obviously know all about it.

Because DEP has failed to implement the recommendations of their own scientists, NJ residents are exposed to over 500 unregulated chemicals that DEP knows are present in NJ drinking water.

All that failure is right out in the open in DEP’s own legal filing. We don’t even have to make the argument.

We’ve written about these failure many times for decades and repeatedly reached out to NJ reporters to tell them about this and urge that they write about it.

I almost guarantee – for the specific reasons I set forth above – that the press will not do so (again).

What you don’t know is literally killing you and your children.

It was painful to watch Cornell lose 2-1 to Boston University in the regional final.

Cornell was a completely different team than the one that shut out and beat Denver.

They played a poor game: the defense gave up the puck several times in their own end, including the one that led to first goal and both defensemen made poor decisions that led to the second.

They gave up a half ice breakaway on an error.

There were at least 20 unforced errors and many bad judgments.

The breakouts were not well timed. There was sloppy and scattered positional play.

Cornell was conservative and tentative in first period (the typical Mike Shafer coached effort).

There was poor passing all game long, pucks repeatedly bounced off Cornell sticks, and Cornell lost many challenges on the boards and in the corners an failed to clear the zone.

There was no forecheck at all and little offensive zone possession.

Cornell gave away way too much ice and failed to put a body on #20, a slightly built but slick stick-handling freshman defenseman. The only way to defend against that it to take the body. Cornell didn’t do that.

There were undisciplined penalties.

Goaltender Ian Shane played another superb game.

Cornell scored with 28 seconds left by shooting the puck and crashing the net, something they didn’t do all game.

Amazingly, Cornell had a point blank (10 – 12 feet) open net shot from the slot with 5 seconds left and the shot went well wide.

BU played a good game, blocked many shots, and had strong goaltending.

But it’s one thing when you lose to a better team and play your best game. It’s completely another thing when you don’t play well and lose a game you might have won.

This one will leave a bitter taste in many mouths.

DEP Logging Plan Only The Beginning – A Model For Fake Climate & Wildfire Solutions

Pinelands Commission Caves To Military Priorities Over Pinelands Forest Preservation

Military And DEP Funded So Called “Preservation” Groups Lack The Integrity To Fight

For anyone who cares about preserving the Pinelands, the map above should scare the hell out of you.

The DEP considers huge portions of the Pinelands – a designated World Biosphere Reserve due to its unique ecology – as a “Military Influence Area”.

The US military’s objectives – particularly in managing wildfires that impede its military training mission – appear to over-ride all other considerations, including the Pinelands Comprehensive Management Plan (CMP) and its protections of forests and the plants and animals that live there.

The US military has unlimited funds and political power to advance that mission.

The recent experience with a military “REPI” Program funded DEP “Wildfire” and “Carbon Defense” and “Habitat” “Forestry” plan should absolutely terrify you. The negative implications are stunning in scope and severity in terms of the integrity of the Pinelands region.

That experience – as my 5 part series has demonstrated – reveals deeply troubling facts:

1) The Pinelands Commission can not stand up to the military and DEP to enforce the CMP and block extremely damaging military funded DEP “forestry” plans.

2) The so called “conservation” groups (i.e. NJCF, Sierra Club) and “preservation” (PPA) groups that are supposed to watch out for the Pinelands and rally the public to defend and preserve the Pinelands are corrupted by military and DEP funding and/or lack the spine to oppose the military and DEP.

In fact, they all SUPPORTED this REPI DEP “forestry” plan.

3) The DEP is totally captured and corrupted by their funding sources, in this case the military. They literally will do anything for money to fund their programs and well paid staff.

In fact, in the DoD REPI grant application documents, DEP defined the eligible military funded land area as 1.3 MILLION ACRES, a land area larger than the entire Pinelands.

4) This particular military REPI DEP “forestry” plan was sold to the Pinelands Commission and the public under obviously false pretexts and rationales, while it’s true purpose was hidden.

Yet the NJ media, like the cowards in the conservation groups, refused to tell the public the truth; refused to skeptically interrogate DEP spin and lies; and refused to print the facts, even when they were given those facts in writing in government documents and could see them in the forest with their own eyes (e.g. the DEP lies that all the cut trees were 2 inches or less in diameter and the DEP lies about maintaining the existing canopy cover).

5) The DEP manufactured a deeply cynical and false justification of this military REPI logging project as advancing climate goals via a “carbon defense” strategy. The essence of that strategy is the absurd contradiction that recalls the Vietnam War’s “we must burn the village to save the village”.

This DEP “carbon defense” lie says that we must log the forest to prevent wildfire from releasing even more carbon than the logging creates.

This lie must not become the model for forest management for climate carbon sequestration and storage.

It is even MORE dangerous and destructive than the “young forest” sham DEP uses to log forests under the pretext of forest health or the creation of habitat for endangered species.

6) DEP also used manufactured fear of wildfire to promote this scam. Again, no one will call that out.

No one even mentioned the fact that – by the military’s own statements – the military accidentally starts a wildfire “once every 10 – 14 days”!

7) The public was kept in the dark and completely shut out of this entire process. The public was blatantly lied to and misled by all institutions involved: the military, the DEP, the Pinelands Commission, the conservation groups and the media.

This means that the military and military objectives are shaping and even actually dictating the management of our public lands – not the Pinelands CMP, or DEP program plans and regulations, or public preferences – and the military is doing this with absolutely no resistance, transparency, or public participation. That alone is terrifying and totally unacceptable.

With all these destructive dynamics illustrated by the recent REPI DEP Pinelands logging fiasco – and the unlimited money, political power, and complete institutional failures (i.e. by the Pinelands Commission, the DEP, the conservation groups and the media) to stand up to the military – the Pinelands forests and ecology are highly at risk.

Word.

[Update: 3/25/23 – It was painful to watch Cornell lose 2-1 to Boston University in the regional final. Completely different team than the one that beat Denver. They played a poor game: defense gave up the puck many times in their own end, including the one that led to first goal and both defensemen made poor decisions that led to the second. Gave up a half ice breakaway on an error. At least 20 unforced errors. Many bad judgments. Not well timed breakouts. Scattered positional play. Tentative in first period. Poor passing. Lost challenges on the boards and in the corners. No forecheck at all and little offensive zone possession.They gave away way too much ice and failed to put a body on #20, a slightly built but slick stick-handling freshman defenseman.  Undisciplined penalties. Cornell scored with 28 seconds left by shooting the puck and crashing the net, something they didn’t do all game. Amazingly, they had an open net shot with 5 seconds left and the shot went 5 feet wide. ~~~ end]

After watching a lackluster performance in the ECAC semi-final 1-0 OT loss to Harvard, I was pleasantly surprised that Cornell even got an NCAA tournament bid.

Given that their NCAA first round regional opponent was defending national champion Denver, frankly, I was just hoping that they were competitive and didn’t get blown out.

(there’s some history with Cornell and Denver – and my HS hockey coach played at Denver with Keith Magnuson).

After an absolutely flawless game – and I mean flawless by every player! – the Big Red dominated and won in a 2-0 shutout.

They looked like a completely different team – not the conservative defensive oriented Mike Schafer coached team I’ve been frustrated by for almost 40 years.

They dominated the first period. They took chances and took the play to Denver. Forwards went in deep, forechecked hard, established control in the offensive zone, and the defensemen pinched. The forwards back checked relentlessly and were never caught out of position.

Cornell won at least 90% of challenges along the boards and in the corners, and were bigger, stronger, and faster than Denver.

The defensemen showed poise in clearing the puck, controlling the corners and behind the net, and moving it out of the zone. The breakouts were almost perfect with flawless passing and they never once gave up the puck.

And they got great goaltending from sophomore Ian Shane:

Ironically, the only dimension of Cornell’s game that was not firing on all cylinders was the power play, the 4th best on the country.

Saturday’s regional final will be a classic against rival Boston University.

Here we are after the game in the desert outside Bouse, Arizona! That Cornell Big Red hat I’m wearing is 40 years old!

DEP Designed Forestry Plan To Protect The Warren Grove Bombing Range

Military Demanded Secrecy During Pinelands Commission Review

DEP Plan Had Nothing To Do With Pinelands Ecology, Habitat, Or “Carbon Defense”

This is part 5 of a series on the military influence on DEP’s Pinelands logging schemes. (See prior posts:

• Is Military Money And Protection Of Warren Grove US Air Force Range Driving Insane DEP Pinelands Logging Plan? (11/21/22)

• Murphy DEP Concealed Efforts To Secure A $1 Million Pentagon Grant And Flat Out Lied About The Reason For Pinelands Wildfire Logging Plan (2/22/23)

• Military Secrets In The NJ Pinelands: Behind Closed Doors, Military Funding Has Huge Influence On DEP Management Of State Forests (3/17/23)

• DEP Pinelands Forestry Plan Was Based On A Mountain Of Lies (3/18/23)

In this detailed followup post, we show how:

• DEP lied to the Department of Defense by falsely claiming that their wildfire forestry project was “fully permitted”.
• DEP lied to the Pinelands Commission by failing to disclose the military objective and funding of the wildfire forestry project.
• DEP fabricated false justifications for the wildfire forestry project in their application for Pinelands Commission approval.
• DEP lied to the public and the media by failing to disclose the military funding and military objective of the wildfire project and claiming fabricated objectives.

In order to explain the abuse that went on here, I need to provide recent chronology.

The DEP received $1.94 million in a 2020 “REPI” grant from the Department of Defense (DoD). That grant funded the “Greenwood Triangle Forest Fire Mitigation Project” designed to protect Joint Base McGuire and the Warren Grove Bombing Range.

According to a July 20, 2020 letter to DEP from the Office of the Assistant Secretary of Defense:

That DoD letter specifically required DEP to keep this grant funding secret for at least a year:

The DEP kept this information secret.

The DEP applied for a $5.07 million 2021 REPI grant on March 22, 2021. The application was denied by by DoD inMay 2021.

The DEP then sought additional DoD REPI grant funding in calendar year 2022. The DEP sought $5,993,000.

This application included the controversial Pinelands Forestry project.

The DoD deadline for submitting this application was September 12, 2022, so DEP submitted it BEFORE that deadline:

This DEP REPI grant application very clearly seeks funding for:

one new project: Warren Grove Wildfire Management Firebreak

The Warren Grove Wildfire Management Firebreak project was designed and justified by DEP as a plan to protect the Warren Grove Bombing Range.

The scope of work for the DEP 2022 REPI grant application (submitted to DoD prior to the September 12, 2022 deadline) falsely claimed that the forestry project was “fully permitted”:

REPI 2023   Forest Fire Service Projects Scope of Work FYs 2023/2024

Wildfire Mitigation –NJ Forest Fire Service Application project description 

The two (2)  NJ Forest Fire Service firebreak projects include  the Greenwood Triangle project which  is currently under construction utilizing  REPI 2020 funding (Greenwood Triangle) and the proposed  Warren Grove  Wildfire Management  Firebreak project. Both  projects  are fully permitted and ready to complete in 2023.

But the DEP Warren Grove  Wildfire Management  Firebreak project was NOT “fully permitted”.

During this timeframe, the DEP was seeking approval of the what the REPI application called the “Warren Grove  Wildfire Management  Firebreak”.

But the DEP application to the Pinelands Commission did not call the project the “Warren Grove  Wildfire Management  Firebreak” and it did not even mention military funding or the military objectives of protecting the Warren Grove Bombing Range.

In contrast to the DoD REPI grant application, the DEP application to the Pinelands Commission was titled (no mention of Warren Grove):

PROPOSAL FOR SILVICULTURAL ACTIVITY

ON STATE FOREST AND PARK LANDS

NEW JERSEY FOREST SERVICE

The DEP claimed the following activities, none of which mention military objectives:

The project has two main activities, (1) road maintenance/firebreak installation, and (2) silvicultural thinning, and forestry thinning and mowing for wildlife habitat restoration

Get that? The “forestry” was for “wildlife habitat restoration” (not Warren Grove Bombing Range protection).

Here is how DEP described the “intent” of the project:

V. Project Intent:

The range of forest density within both forest types of the proposed project presents significant wildfire fuel hazards, in addition to exceeding the threshold at which southern pine beetle (SPB) attack becomes a major risk. These issues have real potential consequences as major releases of carbon to the atmosphere through wildfire and mass mortality events. The proposed activities will address the dense volatile forest fuels and provide carbon defense for the future in an area plagued with historic wildfires, as well as create habitat more conducive for a variety of plant and wildlife species. In addition, these activities will provide significant protection of Atlantic white-cedar resources within the immediate (Bartlett’s Branch) and surrounding areas.

No mention of the Warren Grove bombing range.

The DEP application claimed the project was designed to promote a climate “carbon defense” policy:

The proposed project will significantly reduce the forest carbon pools throughout the site overall due to the removal of forest overstory. In particular, the flux in carbon before and after each of the treatments will change primarily from live aboveground carbon (removal of trees) to the dead wood pool (increase in slash, tops, etc.) due to harvesting activities. In addition, removed carbon may be utilized and stored by long-term forest products, stored within landfills, converted to energy, or may be left on site to be recycled back to the system depending on the implementation contractor and method of harvesting used to carry out the treatments. However, despite some carbon pool losses, this project will provide significant carbon defense to the surrounding forest through avoided emissions by reducing the risk of a rapid release of carbon to the atmosphere through catastrophic wildfire, including multiple Atlantic white-cedar stands and restored sites located along Bartlett’s Branch which contain significant carbon stores. This project will also allow for a break-up of the fuel ladder and will reduce the risk or likelihood of wildfire spread. Added benefits include making these stands more resilient under pressure from climate stressors such as drought or insect pest activity.

These project activities, intents, and objectives conflict with the DoD REPI grant application.

On February 4, 2022, DEP Commissioner LaTourette sent a highly unusual letter to the Pinelands Commission, demanding rapid approval and threatening a lawsuit if they failed to do so. LaTourette’s letter described the project, but made no mention of REPI application, military objectives, or military funding.

The public comment period on the DEP Pinelands application closed on September 9, 2022.

At this time, the DEP was still maintaining the secret demanded by DoD and had not publicly disclosed the REPI application for the same project they were seeking Pinelands approval for. Accordingly, the public could not comment on the real intents and objectives of the forestry project.

Despite not knowing anything about all this due to misconduct and obstruction by the Pinelands Commission staff, I tried to submit comments as soon as I learned of the project. But my comments were submitted too late: (Counselor Stacy Roth email, 10/11/22)

Consequently, we are unable to add your October 9, 2022 comments to the record for this matter. You are welcome to call into the Commission meeting on October 14th to discuss your concerns. Any such discussion will have to occur after the Commission has rendered a decision on the application. 

The Pinelands Commission voted to approved the DEP wildfire plan on October 14, 2022:

Dear Mr. Sacco:

Enclosed is a copy of the Resolution adopted by the Pinelands Commission at its meeting on October 14, 2022.

The Commission approved 1,304 acres of forestry and the creation of approximately 13 miles of forest fire fuel break within the above referenced road rights-of-way and on the above refenced (sic) parcel subject to the conditions recommended by the Acting Executive Director.

The DEP submitted the REPI grant application prior to the September 12, 2022 deadline and LONG before the Pinelands Commission and public review of and approval of the project on October 14, 2022.

The DoD again required that this project REPI funding be kept secret, until January 27, 2023:

Conclusions

Based on a detailed review of the documents and chronology, it is obvious that the DEP provided inconsistent and conflicting justifications for the project: one in the DoD REPI grant application and one in the Pinelands application.

The DEP falsely claimed to DoD that the project was “fully permitted”, but the REPI grant application submission deadline was Sept. 12 and the Pinelands Commission did not approve until Oct. 14. DEP also misled the Pinelands Commission, the public and the press about the objectives of the project.

The DEP kept this all secret and asked the DoD for permission to publicly announce the REPI grant on in a February 5, 2023 email – long AFTER Pinelands Commission approval:

 More to follow.

[End Note: On top of all the deception and bad forestry policy, this Pentagon DoD program is run by a private contractor, Booz Allen Hamilton.]