WolfeNotes.com

Dupont Partial Lake Cleanup Plan Uses Flawed Science to Minimize Problem

Florio Lets Liability Cat Out of the Bag

EPA must stand by Regional Administrator Enck’s commitment and their own science and reject the Dupont proposal.

Dupont has a big mercury problem in Pompton Lakes, NJ (in addition to the cancer cluster and vapor intrusion).

Scientifically and legally, the problem is similar to General Electric’s (GE) problem with dumping toxic and bioaccumulative PCB’s in the Hudson River, where, according to EPA:

From approximately 1947 to 1977, the General Electric Company (GE) discharged as much as 1.3 million pounds of polychlorinated biphenyls (PCBs) from its capacitor manufacturing plants at the Hudson Falls and Fort Edward facilities into the Hudson River.

That GE dumping poisoned 200 miles of the Hudson River, leading EPA to declare that portion of the River a Superfund site and forcing GE to cleanup the river at a cost of over $500 million.

Like GE, for almost 100 years, Dupont used and disposed of mercury compounds at their explosives manufacturing facility.

Like GE, mercury air emissions and mercury dumping on the Dupont site have led to significant off site releases, so that soils and sediments along the the Acid Brook, Pompton Lake, and natural resource and the downriver region are poisoned.

Mercury is highly toxic to humans, fish and wildlife – it bioaccumulates through the food chain. Its effects are magnified by predators up the food chain and persist for many years.

Like in the the Hudson River, because of mercury  pollution, it is unsafe to eat freshwater fish in NJ – and consumption warnings are posted on Pompton Lake (but largely ignored).

Dupont wiped out an entire fishery.

And like Hudson River PCB’s, EPA has extensive national scientific and regulatory experience with mercury in the Great lakes region that is relevant to Dupont Pompton Lakes.

Like GE, Dupont wants to minimize the cost of cleanup and resists EPA cleanup mandates.

I don’t know about GE/Hudson, but in Pompton lakes, EPA Regional Administrator Judith Enck has given the community multiple assurances that EPA will hold Dupont accountable and strictly enforce environmental laws. For example, in an October 14, 2010 reply letter, RA Enck assured me that:

You have my commitment that the Environmental Protection Agency will ensure that Dupont will fulfill its RCRA obligations for this facility.

But Dupont has proposed a partial cleanup plan of just a 26 acre portion of the 250 acre Pompton Lake – no downriver sediment removal is being considered at this time. Dozens of areas of toxic soil contamination on the Dupont site still have not been cleaned up (after 30 years).

The plan is not only for only a small part of the Lake, but it is based on flawed science.

The Dupont plan must be approved by EPA under the Resource Conservation and Recovery Act (RCRA), the most important environmental law you probably never even heard of (and the polluters like it that way).

But now the Dupont plan is in EPA’s lap, which in some ways makes Dupont’s mercury problem EPA’s problem too.

Was Dupont’s plan reviewed and approved by EPA’s national scientific experts on mercury and USFWS scientists? Here’s why we need to know answers to those questions:

I)  Florio Lets the Liability Cat Out of the Bag

The residents of Pompton Lakes want the site designated and cleaned up by EPA under the Superfund program.

Thus far, their primary reasons for wanting Superfund instead of RCRA is that Superfund would bring more federal resources, a higher priority and visibility, and more community involvement in cleanup decisions.

But Jim Florio, Former NJ Governor and original sponsor of the 1980 Superfund law, just let the legal liability cat out of the bag.

The Superfund liability scheme adds another very good reason to use Superfund to compel Dupont to conduct a comprehensive and complete cleanup of the entire site, Pompton Lake, and downriver and compensate the public for huge natural resource and ecological damages they have caused (just like GE in the Hudson).

Florio went out of his way to emphasize that under Superfund, the legal liability scheme is known as “strict, joint, and several”.

Practically, what this legalese essentially means is that:

• Dupont is 100% on the hook for the ENTIRE problem
• EPA does not have to prove negligence  by Dupont
• EPA has enormous power to force Dupont to do a complete cleanup.

This is key because mercury pollution comes from multiple sources: coal power plants, garbage incinerators, and smelters and industrial sources.

Dupont is arguing that they are responsible ONLY for the mercury they allegedly contributed – and only via Acid Brook runoff, NOT THE TOTAL HISTORIC MERCURY AIR EMISSIONS FROM THE DUPONT PLANT AND ALL ON SITE DISPOSAL PRACTICES.

EPA has agreed to this bogus Dupont argument and that is why only a 6 inch deep small 26 acre portion of the 250 acre Lake (the “Acid Brook Delta”) sediments are being dredged.

Dupont could not get away with that under Superfund.

While it is true that EPA has less legal leverage under RCRA that Superfund, EPA still could do the right thing by forcing Dupont to scientifically establish how much mercury came from their facility and how much came from other sources.

But Dupont has not done any of that kind of work and EPA therefore has no scientific basis upon which to approve the plan. (and that’s just EPA’s problem #1)

II)  Dupont’s Science is Flawed and Can Not Be Approved BY EPA

EPA has done an enormous amount of scientific work on mercury.

In contrast with this rigorous EPA body of work, Dupont’s various regulatory documents rely on cursory and flawed science and assessment methods.

These flawed Dupont approaches provide the basis for the Dupont partial Acid Brook Delta cleanup plan and ecological assessment.

Dupont’s science and methods are inconsistent with, do not meet the rigorous standards of, and contradict EPA science. [Update: See

• EPA Lake and Reservoir Bioassessment and Biocriteria Technical Guidance
• EPA Region 8 Ecological Risk Characterization
• ASTM Method E1706 ]

As such, EPA can not approve of them by approving a cleanup plan based on them.

The primary EPA scientific sources for mercury, for our purposes are (there are lots others):

• EPA Report to Congress
• EPA Regulatory Impact Analysis of Mercury Air Toxics Standard
• EPA Great lakes Mercury Initiative

(examples of additional studies of scientific and regulatory relevance are the

• NOAA Report to Congress on Mercury Contamination in the Great Lakes
• various US Fish and Wildlife Service bird studies and fish studies and
• the 1996 Biological Opinion of the USFWS NJ Field Office
• NJ DEP’s 2002 proposed “wildlife criteria” SWQS for mercury
• EPA’s letter of support of the NJ DEP proposed SWQS wildlife criteria

Compared with the EPA Recommendations to Congress on ecologically protective mercury fish tissue levels, fish in Pompton lakes contain 2 – 10 TIMES safe levels.

Depending on trophic level of the fish, the EPA finding is 0.077 ppm – 0.346 ppm.

According to DEP, the fish in Pompton Lake average 0.72 ug/g (ppm).

[Update: A May 6, 2008 DEP email to Dupont specifically addressed this issue:

in order to present a balanced comparison, DuPont shall compare the average concentrations of mercury in largemouth bass from Pompton Lake to the regional average of 0.46 ug/g mercury in largemouth bass and/or the statewide average (0.44 ug/g) in the Remedial Investigation Report.

Additionally, Dupont’s ecological risk analysis is flawed, as it relies too heavily on alleged no impacts on the benthic (bottom) macroinvertebrate community structure. Community structure is a poor indicator of bioavailability, bioaccumulation, and ecological risk that I haven’t seen used anywhere else. And even if you were looking at macro invertebrates, you would be doing so to consider food chain bioaccumulation, so you would look at tissue concentration of mercury, not community structure.

[Update: I may have misread the Dupont documents on this point - macro-invertibrate community structure is of relevance, and YOY fish are trophic indicator in food web design - see Mercury Cycling in Stream Ecosystems. 3. Trophic Dynamics and Methylmercury Bioaccumulation - Where Dupont draws misleading conclusion is with this assertion:

However, tissue concentrations measured in the delta in 2005 do not indicate an increased accumulation of mercury by chironomids and YOY fish tissue relative to the tissue data collected during the 1998 ecological investigation. - end update]

[Update 2 - Here is what I meant to say, as provided by DEP's Ecological Evaluation Guidance says about limitations of macro invertebrate sampling:

Some limitations are that they do not identify the contaminant responsible for the observed toxicity, population impacts are not readily translated into contaminant remediation goals, and results are often confounded by variables not related to contaminant toxicity (predation, seasonal differences, physicochemical sediment characteristics, food availability).]

Similarly, Dupont sampled “young of year” (YOY) fish, which minimizes bioaccumulation as young fish haven’t lived long enough to bioaccumulate the mercury in the system.

Here are additional serious flaws in Dupont’s analysis:

1) I didn’t see anything in Dupont’s documents concerning terrestrial mammals

2) There was no data or discussion of the bird sampling – other than a cursory claim of low/no adverse impact on 4 of 5 bird species sampled. What bird species? What tissue (or egg shell) concentrations found? What adverse impacts were considered?

3) There was no discussion of biological mechanisms that convert mercury they propose to leave in the sediments into bioavailable forms.

4) There was no data provided or consideration given to Dupont’s historic use of mercury compounds in manufacture.

5) There was no data or estimate of Dupont’s mercury air emissions and how those emissions deposited locally.

6) There was no dating or chemical analysis of soil or sediment cores that would suggest historic patterns of mercury deposition.

7) The full extent of mercury deposition and off-site release from the Dupont facility has not be adequately characterized.

There was no valid characterization of “mercury background”.

[According to the USEPA, background refers to constituents that are not influenced by the discharges from a site, and is usually described as naturally occurring or anthropogenic (USEPA, 2002a). U.S. Environmental Protection Agency (USEPA). 2002a. "Role of Background in the CERCLA Cleanup Program." Office of Solid Waste and Emergency Response.

[ According to NJ DEP Ecological Evaluation Guidance:

Background area samples should be collected from an area outside the site’s potential influence and not in locations directly influenced by or in proximity to other obvious sources of contamination.

9) There was no data provided to support apportionment of mercury in the environment as Dupont alleges to minimize their cleanup obligations (i.e. Dupont share and other source share).

10) There was no data or estimate sof total mercury loading;  mechanisms and estimates of methylation; fate/transport modeling; bioaccumulation mechanisms; and human and wildlife exposure and risk assessments from air emissions, contaminated soil, surface water runoff of mercury disposed on site.

I assume that some of this data and analysis were provided in the original ecological assessment submitted to NJ DEP in accordance with State cleanup regulations (and rubber stamped by DEP's broken cleanup program).

[Full disclosure Update: in 1995, a former NJ Governor, with DEP's help, was shown to misrepresent the science on mercury in fish tissue to downplay risks - when I disclosed this scheme, management retaliated and I was forced out of DEP as a whistle-blower. Hit that link for all the documentation.]

However, this is an EPA federal RCRA action that must be EPA approved. Accordingly,  all the documents must be made available to the public during the comment period. That has not been done in this case so EPA can not approve the Dupont plan based on documents and analyses that have not been made publicly available.

III)  EPA is Required to Consult with US Fish and Wildlife Service

RCRA regulations require EPA to consult with federal agencies, including the US Fish and Wildlife Service during the RCRA permit process.

We advised EPA Regional Administrator Enck on November 17, 2011 that RCRA regulations include full federal partner review including, but not limited to, U.S. Fish and Wildlife Service, National Oceanic and Atmospheric Administration, and Agency for Toxic Substance and Disease Registry, pursuant to regulation 40 CFR 124.10(c)(iii).

Certainly such consultation is required BEFORE EPA issues a “tentative approval” and proposes a draft RCRA permit for public comment.

Thus far, it appears that EPA has not complied with these consultation requirements prior to issuing the draft permit.

IV)  Dupont is Required to Comply with Clean Water Act Standards

The federal Clean Water Act applies to Dupont’s water pollution discharges.

The CWA also applies to the RCRA permit process, which must meet CWA requirements.

NJ DEP State surface water quality standards (SWQS) have been approved by EPA and are federally enforceable. They trigger enforceable requirements on pollution discharge that may “cause or contribute to” a violation of a SWQS.

NJ DEP SWQS designate Pompton Lake for recreational use (fishing, swimming,etc), aquatic life protections, and water supply.

The SWQS have policies and narrative and numeric standards that the RCRA permit and Dupont clean up must comply with.

The Dupont proposed cleanup plan provides no discussion or demonstration regarding compliance with the legally applicable and binding provisions of the CWA or NJ SWQS.

Accordingly, EPA can not approve the Dupont proposal as a final RCRA permit in the absence of this compliance demonstration.

EPA must stand by their own science. According to the EPA supported NJ DEP wildlife criteria proposal. According to the DEP SWQS proposal (which USFWS and EPA supported)::

“As part of the 1994 approval of the New Jersey SWQS triennial review process, the USEPA, in collaboration with the USFWS, indicated that the human health based criteria for PCBs were not protective of the threatened and endangered species bald eagle, peregrine falcon, and dwarf wedgemussel. As a result, the Service prepared a Biological Opinion document in 1996 (Biological opinion on the effects of the U.S. Environmental Protection Agency’s approval of the state of New Jersey’s surface water quality standards on the bald eagle, peregrine falcon, and dwarf wedgemussel. U.S. Department of the Interior, Fish & Wildlife Service, New Jersey Field Office, Pleasantville, New Jersey. 1996). The lack of wildlife criteria for DDT and its metabolites, mercury, and PCBs was a concern to the USFWS. DDT and its metabolites, mercury, and PCBs are bioaccumulative pollutants that are persistent in the environment, accumulate in biological tissues, and biomagnify in the food chain. Due to these characteristics, the concentration of these contaminants may increase as they are transferred up through various food chain levels. As a result, adverse impacts to non-aquatic, piscivorous (fish-eating) organisms may arise from low surface water concentrations. The peregrine falcon is not a piscivorous species. However, it feeds on other piscivorous bird species. Therefore, biomagnification may be of even greater concern for the peregrine falcon.

The USEPA developed site-specific wildlife criteria for the Great Lakes based on a number of factors, including the toxicity of various pollutants and their tendency to bioaccumulate and biomagnify. In addition, the USEPA gathered and applied information about piscivorous wildlife endemic to the Great Lakes region in its derivation of water quality criteria. That effort resulted in the promulgation of numeric surface water concentrations designed to be protective of all avian and mammalian wildlife using Great Lakes waters. “

EPA must  now stand by Regional Administrator Enck’s commitment and their own science and reject the Dupont proposal.

1) Dupont’s proposed cleanup of Acid Brook Delta is only partial – we demand that all mercury and all pollutants be completely and permanently cleaned up so that the Lake is fishable and swimmable as mandated by the federal Clean Water Act and NJ Water Pollution Control Act;

2) The original 1992 EPA issued RCRA permit must be enforced and has numerous loopholes that must be closed – all RCRA “SWMU’s” and off site releases which are sources of toxic soil, sediment, vapor, and groundwater contamination must be cleaned up under more aggressive schedules and obligations than those EPA unilaterally imposed in a “compliance schedule modification” on May 4, 2010 without public notice and comment;

3)  Natural resource damages and toxic fish and wildlife impacts of Dupont’s pollution have not been assessed fully and must be assessed and the public fully compensated;

4) EPA must take enforcement action and collect fines such that vapor mitigation systems are immediately installed in all impacted homes.

The plume area may be larger than currently thought, when subsurface infrastructure migration is considered.

This hike is one of the best – see NY/NJ Trail Conference for info:

I set out from the trailhead just west of (above) Greenwood Lake marina.

Perfect day – some ice on rocks in the morning, but it warmed up pretty quickly.

Superb views of Greenwood Lake, and north towards Bear Mountain. Too bad that high ozone haze impeded views somewhat.

Managed to re-sprain my ankle along the AT just about a mile north of the state line (I sprained it a little over a month ago playing soccer with kids next door).

So it was tricky coming down, as I had to “club foot” as I rock hopped along downhill portions of the trail that were flowing streams and/or leaf covered rocks.

After I got back in the car, needed some refreshments, but the Rainbow Inn was closed for the season, so, had to drive home hungry and with a stiff ankle! Check out the show:

DEP NOT using huge regulatory powers to protect public health from known risks

I just posted the below as an Update to my piece yesterday on the DEP’s new dry cleaner grant program, but now realize that the underlying public policy and journalism issues deserve individual attention.

I initially sought to clarify the orginal post based on a conversation that emerged in a discussion of this issue on a national TCE (perc) listserve. The listserve discussion was focused on vapor intrusion of chemicals into about 450 homes in Pompton Lakes NJ from the Dupont site.

We were involved at the outset in Pompton Lakes (see this) and have written extensively about the situation (see this and this). Jim O’Neill of the Bergen Record has written several outstanding killer storries, most recently this: Dupont’s Danger Was Hidden Away.

But then I read the Star Ledger coverage  of DEP’s dry cleaner grant program and my head exploded. So, here’s the story.

A national vapor intrusion expert replied to my post to note that dry cleaned clothes can “off gas” perc in homes, and resemble vapor intrusion. I agreed, and said that perc also can enter homes from nearby industrial air emission sources (e.g. dry cleaners, chemical plants, et al). 

I then tried to explain why the perc indoor vapor intrusion risks and outdoor ambient air risks were related and why I was so disgusted by the DEP press release touting the dry cleaner grant program.

You see, the “new” NJ DEP leadership makes a lot of noise in the press, especially in the Pompton Lakes community, that they are aggressively acting to protect public health. They say that now that they are aware of what’s going on in Pompton Lakes, they have made protecting the community a priority (in contrast to 25 years of prior DEP administration’s, who apparently either didn’t know or care about Dupont PL)

I don’t know how they pull that off, because the current Deputy Commissioner – who some say is really running the DEP due to the Commissioner’s lack of qualifications and experience -was the former head of the “broken” Site Remediation Program, which had “oversight” of Dupont, Pompton Lakes. In fact, her first public appearance as Deputy Commissioner was in Pompton Lakes,  where she was almost tarred and feathered for her comments and arrogant demeanor that gravely insulted residents.   

The key point is that DEP has huge regulatory power to protect public health from serious known risks that they are NOT using. 

The abandonment of the dry cleaner perc phase our rule is just one example of that.

In addition to the sham Pompton Lakes claims, DEP engages in PR stunts like the $5 million dry cleaner grant program – aside from getting the situation backwards by saying that polluting dry cleaners make “sacrifices” (instead of recognizing the fact that people’s health is sacrificed for the profits of polluters), DEP even have the chutzpah to note this:

 ”Priorities for the grant money are dry cleaners located in residential settings, such as apartment buildings or mixed commercial and residential strip malls, and those located within 50 feet of day care centers.”

While DEP may consider proximity and residential/day care location risk in the dry cleaner grant program, the larger reality is:

1) DEP has no statewide vapor intrusion (VI) program. What DEP does on VI risks is site specific and privatized. The pace and extent of any VI investigation and remedy is under the control of polluters, not based on public health. DEP is well aware of scores of volatile organic contaminant groundwater plumes under occupied buildings that cause VI risks, yet does nothing to warn or protect the people in those buildings ;

2) DEP is well aware of the fact that the DHSS school and day care center VI risk standards are based on a 1 in 10,000 risk level. Instead of adopting protective regulations using a  more conservative  risk standard for this extremely sensitive sub-population (i.e. children), current NJ school and day care standards are 100 times WEAKER than other DEP soil, water, and VI standards, which are based on 1 in a million risk level (which is derived by risk assessments that assume a healthy adult male exposure, not a developing child’s as mandted by law!); (i.e. for easy confirmation, see page 40-43 of DHSS  rule adoption document - which flat out contradicts the “Kiddie Kollege” law, which mandates adoption of children’s health based state-wide DHSS standards, not site specific judgements); and

3) DEP does not have air quality standards or enforceable permit regulations to address exactly the kind of risky and unacceptable situation they describe in their press release, e.g. when an industrial emission source is located very close to homes or schools, DEP does not consider those health risks in setting permit emission limits on that source!!!

DEP knows all this irresponsible abdication, yet they get away with writing Orwellian press releases – which amounts to lying to the public – and no one calls them on it! - reporters instead stenographhically praise DEP for it!

[Update 2: 6/13/10 - Star Ledger ran a good story:  Environmentalists say shutdown of N.J. oyster beds could have detrimental effects  about the shellfish monitoring and enforcemnent problems at DEP - in my view, Commissioner Martin again showed poor judgement (similar to Gulf Spill Reponse Team and Exelon Spill Act Directive press releases) and acted in a way to mask major problems at DEP and creating a miselading appearance that he is agressively protecting public health]  

[Update 1: 6/8/10 – is DEP press office reading WolfeNotes? Check this  out: COMMISSIONER AIMS TO PROTECT PUBLIC HEALTH AND SHELLFISH INDUSTRY
While I am all for getting outdoors with the kids, what DEP fails to tell the public – and in the process misleads the public – is that wading in NJ streams like that depicted in the photo would result in a high probability of being exposed to unsafe bacteria that could make kids sick.

While streams in Stokes State Forest are clean, most NJ streams are highly polluted.

In fact, according to DEP’s own data, only 19% of NJ streams, lakes, and rivers attained the DEP’s own recreational use standards, which are designed to protect public health. Attainment of those standards is measured by the presence of bacterial indicators of pathogens, like e. coli bacteria (see page 44, DEP Water Quality Assessment Report).

Attainment of the recreational use standards in the inland freshwater streams is actually far less than 19% because of relativley high rates of recreational use attainment in ocean waters.

Photography by a government agency should inform the public and depict truth – unfortunately, the very positive responses elicited by the DEP webpage photo are contradicted by DEP’s own science and data.

DEP should be reporting accurate data on water quality to the public – not withholding that data and presenting highly misleading positive images that contradict a rather negative reality.

That’s called propaganda.

Perhaps if NJ residents knew how polluted our waters are, they might do something about it.

[Update: the Governor's spokesman's comments in the Star Ledger article on the protest reveal a dangerous arrogance. 

The governor’s spokesman, Michael Drewniak, said the protesters are "blinded by their own rhetoric and are on the wrong side of history."

So the Christie administration views itself as "history's actors" ? Those remarks echo the ignorant hubris of the Bush Administration. Recall the killer NY Times Sunday Magazine story "Faith, Certainty and the Presidency of George W. Bush" that nailed the Bush fatal flaw with this famous quote:

The [Bush] aide said that guys like me were ”in what we call the reality-based community,” which he defined as people who ”believe that solutions emerge from your judicious study of discernible reality.” I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ”That’s not the way the world really works anymore,” he continued. ”We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality — judiciously, as you will — we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors . . . and you, all of you, will be left to just study what we do.”

Christie is NJ’s George Bush – creating his own false reality. Ideological. Ignorant. Arrogant – but with a bullying mean streak even frat boy Bush couldn’t match.]

Better Choices for NJ held a protest today in Trenton against the several assaults by the Christie Administration on public institutions and public employees, particularly on public education and those most in need. Better Choices’ position:

The FY 2011 budget cuts millions of dollars from critical services that working families rely on. New Jersey’s economic crisis is too severe to rely on cuts alone. We call on our legislators to adopt a balanced approach that includes fair, fiscally responsible revenue solutions to protect vital services and invest in our future. 

Some photo’s – large crowd, estimated at over 30,000, largest in NJ history – and I got some lemonaide! (interview starts at time 2:57).

 

[Update: 11/11/09 Ed Rodgers of NJN TV news did a great story last night, click here, runs from time 8:55 - 11:15 ]

At the recent NJ Business and Industry Association panel discussion, DEP Commissioner Mauriello made a commitment that DEP would soon propose rules to delist the Cooper’s hawk as a State threatened species.

The move would not only eliminate protections for the hawk, but allow development of untold acres of currently protected forested breeding, nesting, and foraging habitat.

Maurillo’s announcement was made in response (and clearly appeared to be a concession) to a specific developer who complained that his $40 million project was blocked by the current threatened listing, which protects critical habitat from development. This developer also claimed that “hundreds of millions of dollars of development” is blocked by the current State threatened species designation. Mauriello replied that he was aware of this specific project, had reviewed the developer’s fax to him, and thanked him for it too (gee, can I have another?). Mauriello even suggested that the developer apply for other DEP permits in the interim, which he would approve.

Mauriello did not say whether biologists at DEP’s Endangered and Non-Game Species Program were clamoring for delisting Cooper’s hawk, or whether the move was made in response to political pressure by developers. I checked all the recent posted minutes of the Endangered & Non-Game Species Advisory Council and could find nothing about delisting, so if Mauriello is doing an end run around ENSAC then it looks like the political deal is in.

Regardless of whether the delisting is scientifically justified, it is obvious that political pressure is impacting DEP priorities. DEP has severe deficits of staff, not only to conduct the biological studies, but to write the regulations. Delisting would seem to be a very poor priority to assign  scarce staff to work on. For example, according to ENSP (1/16/08):

Habitat Regulations

The E/T habitat regulations have not yet been proposed, nor is there a specific schedule for doing

so. The current fiscal status of the State and the need for an additional staff to implement the

regulations is partly responsible for the delay in the proposal. The Commissioner remains

committed to implementing regulations protecting E&T wildlife habitat.

So I pose the question to the experts out there – is this delisting justified? Has the Cooper’s hawk fully recovered? Even if it has recovered, is removal of current protections a wise move?

I do not work on birds and clearly am no woodland raptor expert. Here is the best information I could find on DEP’s website:

Status and Conservation

Until the mid-1930s, many raptor species, including the Cooper’s hawk, were shot in large numbers during migration and on their breeding grounds because of suspected poultry and game bird predation. Regardless, the Cooper’s hawk remained a fairly common breeding species in New Jersey’s forests until the 1950s when habitat loss caused population declines. In addition, the pesticide DDT impaired reproduction and contributed to population declines observed from the 1950s to 1970s. Due to the reduction in the state’s breeding population and the loss of habitat, the Cooper’s hawk was listed as an endangered species in New Jersey in 1974. The New Jersey Natural Heritage Program considers the Cooper’s hawk to be “apparently secure globally,” yet “rare in the State (breeding)” (Office of Natural Lands Management 1998). Concern for this species is evident in nearby states, such as New Hampshire, Rhode Island, and Connecticut, where it is listed as threatened, and Massachusetts and New York, where it is considered a species of Special Concern. The National Audubon Society also included the Cooper’s hawk on its Blue List of Imperiled Species from 1971 to 1982 and in 1986, the final year of the list.

Following the nationwide ban of DDT in 1972 and the reforestation of fallow lands throughout the state, Cooper’s hawk populations began to recover. Cooper’s hawks experienced increases in New Jersey Christmas Bird Counts from 1959 to 1988 and Breeding Bird Surveys from 1980 to 1999 (Sauer et al. 1996, Sauer et al. 2001). Other recent surveys have also shown a substantial increase in the breeding population of Cooper’s hawks in New Jersey. As a result, the status of the Cooper’s hawk was reclassified from endangered to threatened in New Jersey in 1999. The loss of large, contiguous forests remains a threat to this species and warrants the continued protection of Cooper’s hawk nesting habitats (Source NJDEP link).

Wildlife Action Plan (2008)

Recommendations: Identify, protect, maintain, enhance, and restore the remaining large contiguous tracts of forest and forested wetland habitat as identified by the Landscape Project for the longterm viability of forest-dwelling, area-sensitive and interior-nesting wildlife. These include such species or suites as the Cooper’s hawk, red-headed woodpecker, and forestinterior species such as interior forest passerines, cavity nesting birds, and forest-dwelling bats.

Landscape Project – Justification:

The home ranges of Cooper’s hawks’ are highly variable, both geographically and seasonally. Only breeding records of Cooper’s hawks are used in the Landscape Project to value habitat. Home range calculations reported in the literature for Cooper’s hawks during the breeding season range from 65.5 ha to 784 ha. The average being 348 ha, or an area equivalent to having a 1.1 km radius. The ENSP uses a 1.0 km radius to represent the occurrence area boundary for all Cooper’s hawk breeding records used in the Landscape Project. This represents a slightly conservative estimate of the breeding season home ranges of Cooper’s hawks as reported in the literature.

Source: NJDEP: New Jersey’s Landscape Project (Version 3.0 – Highlands – 2008)

http://www.state.nj.us/dep/fgw/ensp/landscape/lp_report_3_0.pdf

Statewide Version 2.0 http://www.state.nj.us/dep/fgw/ensp/wap/pdf/wap_attach_a.pdf

Basis for recent Green Acres land acquisition – 170 acre tract in Kingwood Township along Delaware

“The tract encompasses a portion of a Natural Heritage Priority Site, which delineates important areas for the state’s biodiversity. The site consists of wooded bluffs, dry woods, steep rocky slopes and a small stream within a deep ravine. The tract supports threatened animals including the Cooper’s hawk and barred owl.”

“I shall be telling this with a sigh
Somewhere ages and ages hence:two roads diverged in a wood, and I –
I took the one less traveled by,
And that has made all the difference.”   Robert Frost “The Road Not Taken“ 

The boulders, trails, trees and sky of Sourland Mountain Preserve, East Amwell, NJ

Symbolically illustrating the importance of the issue, the very first piece of legislation Governor Jon Corzine signed in the year 2007, was the so called “Kiddie Kollege”  law (P.L. 2007, Chapter 1.). To much fanfare, in a January 11, 2007 press release, Corzine proclaimed:

GOVERNOR CORZINE SIGNS LEGISLATION TO IMPROVE ENVIRONMENTAL SAFETY AT SCHOOLS AND CHILD CARE CENTERS

 TRENTON - Governor Jon S. Corzine today signed legislation to help ensure that child care and educational facilities are environmentally safe for the children attending them.

“This bill will help identify and remediate educational facilities and child care centers located on environmentally high risk sites,” Governor Corzine said. “This puts New Jersey at the forefront of states nationally in protecting children from environmental contaminants while at child care facilities and schools.”

At the time – and in testimony during legislative review of the bill – we warned both the Governor and Legislators that the entire approach was fatally flawed and would not be effective in protecting children from toxic chemical exposures while at schools and daycare centers across the state. 

Basically, the fatal flaw was to try to address a massive problem in NJ’s toxic site cleanup program with a band aid – the daycare licensing process.

But of course it’s a lot easier politically to sweep the issue under the rug by making it only a day care licensing issue, than it is to take on the powerful chemical industry lobby in New Jersey that is responsible for the problem. Daycare centers don’t have lobbyists or make campaign contributions.

Perhaps even worse, we have learned that the Attorney General’s Office has issued a legal opinion that says that the Kiddie Kollege law DOES NOT APPLY to existing schools. This opinion basically calls the Governor a liar.

The Middlesex preschool case exposes multiple flaws and loopholes in the Kiddie Kollege law:

Oversight of Middlesex Boro Landfill closure, toxic site cleanup, and vapor intrusion are DEP's job.

 

1. The Middlesex Boro pre-school where unsafe indoor levels of benzene and TCE were recently found is located virtually on top of an old landfill. Proper closure and cleanup of the landfill is regulated by and is the responsibility of DEP and has NOTHING to do with day care licensing.

2. The source of the chemical fumes in the preschool are  caused by what is known as “vapor intrusion”; a process where volatile organic chemicals move from a toxic waste site through groundwater and soils and enter a building from below (see this for a good explanation) . Identifying sites and controlling vapor intrusion into buildings is regulated by and is the responsibility of DEP and has NOTHING to do with day care licensing.

3. The source of the chemicals in the pre-school are from a DEP regulated discharge of hazardous substances to soils and groundwater. Cleanup of contaminated sites is regulated by and is the responsibility of DEP and has NOTHING to do with day care licensing.

4. Thousands of children in hundreds of schools across New Jersey are potentially  impacted by vapor intrusion from toxic sites and industrial emission sources. These pollution sources are regulated by DEP and have NOTHING to do with day care licensing.

The Middlesex preschool tragedy was predictable, predicted, and entirely preventable. So, for purposes of public education and accountability, let’s walk quickly through the history of all the warnings that were not heeded by the Governor and Legislators, all of whom knew better:

In August 2006, when the Kiddie Kollge daycare tragedy emerged, we warned:

MERCURY-LADEN DAY-CARE CENTER IN NEW JERSEY IS NO ANOMALY

“What is going on in New Jersey is both unbelievable and to be expected from its deliberately anemic toxic cleanup laws. There are likely hundreds more ticking toxic time bombs out there that have been re-developed with DEP’s blessings.”

When DEP failed to respond aggressively to the tragedy, we warned that a coverup would likely ensue:

CALL FOR INSPECTOR GENERAL TO HEAD MERCURY DAY-CARE PROBE — Severe Toxic Problems Acknowledged in 2002 Internal “Vulnerability Assessment

“If we do not want to see this type of debacle recur, it is crucial that the underlying policy, regulatory, and program weaknesses be identified – and that is a job for the Inspector General.”

When we disclosed that DEP was negotiating a voluntary agreement with the polluter of Kiddie Kollege that poisoned 60 toddlers, we warned: 

NEW JERSEY TOXIC CLEANUP PROGRAM EXPOSED AS TOOTHLESS TIGER — State Allows Industry to Control Cleanup Even In Most Egregious Cases

“New Jersey only cleans up contaminated sites with the consent of the polluter – how nuts is that?” If the Kiddie Kollge scandal cannot produce meaningful reform, then heaven help us because we apparently cannot help ourselves.”

When DEP conducted a statewide “assessment” of  4,200 day care centers within 400 feet of a toxic waste site, we warned:

60 MORE NEW JERSEY DAY-CARE CENTERS NAMED ON TOXIC WARNINGS — Hundreds of Homes, Schools and Other Facilities May Also Be Vulnerable

“Why is DEP not also giving warning notices directly to parents, teachers and neighboring residents?”… “What is being found at day-care centers is just the tip of a much bigger chemical pollution problem that New Jersey is not ready to acknowledge,”

When we uncovered documents that showed that DEP was actively covering up the problem, we warned:

NEW JERSEY AGENCY SAT ON SECRET LIST OF 6,000 TOXIC DANGER SITES — Latest Corzine “Kiddie Kollege” Reform Scheme Falls Well Short of Mark

“These documents show that that DEP knew perfectly well that tragedies like Kiddie Kollege were accidents just waiting to happen,… According to testimony delivered by Bill Wolfe, the Corzine plan contains several other major flaws:

The bill skips over existing health risks at more than 700 day care centers which are located on or within 400 feet of contaminated toxic waste sites plus as many as 100 schools located on or near toxic waste sites;

When similar toxic problems were found at schools, we warned:

TOXIC SCHOOL SCANDAL SPOTLIGHTS WEAK NEW JERSEY LAW — Parents Get No Notice of Child’s Exposure in Deregulated State Clean-Up Program

“As we have repeatedly warned, every few months another toxic scandal will erupt and state officials will again try to act as if they do not know how it could happen. The place to start looking for answers is in the mirror.”

When scores of old landfills were shown to be polluting groundwater and emitting poison gases into nearby homes across the state, we warned: 

NEW JERSEY POSTS LIST OF 831 DIRTY DUMPS BUT NO CLEANUP PLAN — More than One in Six Abandoned Dumps Polluting Groundwater

“A number of housing developments have sprung up along the perimeter of the landfills, without proper notification to purchasers or adequate cleanup and closure. In some places, [toxic] gas has migrated into basements and drinking water wells have been contaminated…. In a December 12, 2006 letter, Bill Wolfe asked the Corzine administration to warn potentially impacted residents”

When so the called Kiddie Kollege reform legislation was being considered by the legislature, we warned: 

NEW JERSEY TOXIC DAY CARE REFORM BILL STILL MISSES THE MARK — State Grasping for Quick Fixes to Broken Brownfields Program

“While the intent and some provisions of this ambitious legislation are commendable, the bill fails to address the underlying flaws in NJ toxic site cleanup laws, while the indoor air program may be unworkable,”

When the Kiddie Kollege bill was on Governor Corzine’s desk, we warned and requested a conditional veto::

CORZINE URGED TO CLOSE LOOPHOLES IN TOXIC DAY-CARE BILL — Conditional Veto Could Strike Out Exemptions and Strengthen Safeguards

“This is the moment when Governor Corzine needs to back up his rhetoric of being independent from special interests. If Governor Corzine will not act now to protect children from a lifetime of damage from breathing poisonous vapors, when will he act?”

 (end of story - tomorrow, Part III)