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.

sun sets on mercury laced Pompton Lake (1/5/12)

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.

fish consumption warning posted on Pompton Lake

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

Jim Florio, sponsor of 1980 Superfund law, speaks at community rally (1/5/12)

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.

Judith Enck, EPA region 2 Administrator came to NJ to warns residents about risks of eating contaminated fish from waters nearby toxic sites

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.]

Lois Gibbs speaks at community rally (1/5/12)

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.

Rally before EPA RCRA permit hearing (1/5/12)

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

Appalachian Trail - at NY/NJ Border

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:

Greenwood Lake

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!

Unplug, unwind ... and get your kids outdoors!June is Great Outdoors Month, a perfect time to launch kids on a lifetime of appreciation for New Jersey's many natural wonders, such as this stream in Stokes State Forest in the Skylands region. Special programs introducing families to fishing, camping, natural history and much more will be held at state parks, forests and wildlife management areas through the month. Learn more.

[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).

Cooper's hawk - NJ threatened species (NJDEP photo)

[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

Middlesex Preschool - located virtually on top of old landfill

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)

Toxic daycare appears located in an idyllic country setting - but that's an old landfill in the backyard (read on!)

Imagine the anguish of being told your child was exposed to cancer causing industrial chemicals while at daycare. Our kids went to daycare, so I understand a parent’s concerns and fears – but our worst health fear for our kids was contraction of pink eye.

Yet, almost 3 years to the day after the tragic Kiddie Kollege episode where 60 toddlers were poisoned by mercury vapors while at daycare (see  NY Times “After Mercury Pollutes a Day Care Center, Everyone Points Elsewhere”) that’s exactly what another group of New Jersey parents were told last week.

And again, similar to the Kiddie Kollege case, (see NY Times “Memo Shows Agency Knew of Danger in Child Care Building“ ) the DEP knew or should have known and failed to take steps to prevent the problem or adequately warn parents.

So here we are again. We were disgusted but not surprised to learn that yet another toxic daycare center was discovered operating in NJ in Middlesex Boro. This is an intolerable situation – DEP must stop putting our kids at risk and engaging in crisis management, reacting to one scandal after another.

Last week, the local newspaper reported: New tests show elevated chemical vapor levels in Middlesex Borough preschool

MIDDLESEX BOROUGH — A second round of tests has confirmed the presence of elevated vapor levels of two chemicals inside a local church preschool, but not in amounts anywhere near enough to shut the facility, the borough’s environmental engineering firm has reported…. According to Ferguson, the latest air samples showed levels of TCE fumes at 16 micrograms per cubic meter in the preschool room at the church complex and 9.7 micrograms per cubic meter in the youth lounge. The findings for benzene fumes were eight micrograms per cubic meter in the preschool room and 13 micrograms per cubic meter in the youth lounge.

“These levels do not pose an adverse health risk,” said Ferguson. …

Mayor John Fuhrmann, who attended Monday night’s meeting, said he’s satisfied with the way the company is handling the tests, adding that he expects the firm to present a remediation proposal “as soon as possible.” 

Both Fuhrmann and Ferguson noted that the source of the vapors has not been determined, but said the firm is working to find that out.

Trichloroethylene is a common household cleaning solvent, often used as a degreaser, Ferguson said. It is odorless in the amounts found in Sadat’s air samples.

First, I suspected that the local reporter got badly spun, because right off the bat I knew that Mr. Ferguson was factually in error and was therefore misleading parents with his bogus claim that the levels posed no adverse health risk.

Here are some facts: The DEP indoor air level for benzene, a proven human carcinogen, is 2 microgram per cubic meter. The reported levels in this preschool are 13 micrograms, which is more than 6 times or  650% higher than DEP’s indoor air level.

The DEP indoor air level for TCE, a proven human carcinogen, is 3 micrograms per cubic meter. The reported levels are 16 micrograms, which is more than 5 times or at least 533% higher than DEP’s indoor air level. In August tests, the TCE levels were even higher (the reader can confirm this and read the complete DEP Vapor Intrusion Guidance document here).

Yes, these are DEP’s chronic indoor exposure levels, but there is great uncertainty regarding children’s health effects and exposure is completely preventable.

Children are particularly susceptible to the adverse health effects of cancer causing chemicals because their lungs are still under development; they have high inhalation rates relative to body mass, high lung surface area per body weight, low lung clearance rates, narrow lung airways, and immature immune systems. Children metabolize chemicals differently than adults and are far more vulnerable to chemical exposure than healthy adult males used to calculate most risk assessments.

The “acceptable risk” of a child’s exposure to industrial chemicals while at a daycare is ZERO (0) – “ND” or “non-detect”

Parents can refer to federal toxicological profiles of benzene and TCE here – the common sense bottom line is to minimize exposure:

“Living near gasoline fueling stations or hazardous waste sites may increase exposure to benzene. People are advised not to have their families play near fueling stations, manufacturing plants, or hazardous waste sites.“)

Second, I was baffled as to why a Mayor would be satisfied with this totally unacceptable situation.

Well, it turns out that the source of the problem is the Middlesex Boro landfill and/or underground gasoline storage tanks (UST) 100 feet or so from the day care center. So we now understand why the Mayor would have an incentive to minimize the problem.

Third, I was curious as to why a consultant that is known for the cleanup of hazardous waste sites was suggesting that common household cleaning compounds might be a source of the problem in the pre-school (and not the old landfill and USTs). These volatile organic industrial chemicals have poisoned soil and groundwater at hundreds of sites in New Jersey, including the indoor air of nearby buildings.

Well, in turns out that the consultant works for Middlesex Boro, who owns the liability for the landfill and UST problems, so again we now understand why the consultant’s first loyalty is to his client and why they too have professional and legal liabilty incentives to minimize the problem.

So I took a trip out there. I spoke with the day care center owner, toured the site, spoke with local officials and neighbors, and took some photographs. 

What I saw confirmed my suspicions, so I filed OPRA requests with the Middlesex Boro clerk’s office and the DEP to get the data and smoking guns.

I also will send a letter to DEP Commissioner Mauriello that makes a series of recommendations, the most important being immediate installation of a subslab vapor recovery system at the day care center. If such a system is not installed immediately (less than 2 weeks) then the facility should be closed until a system is installed.(the letter is similar to Memo to DEP: Protect Kids – Enforce the Law

DEP recently oversaw installation of a system at Atlantic Highlands Elementary School, where indoor air levels were significantly lower than in this Middlesex preschool. (see: A Win for the Kids and Parents of Atlantic Highlands

US EPA installed a system in the Franklin Township Elementary School where, again, where levels were significant lower than in Middlesex.(see EPA Final Franklin Elementary School Presentation)

The children of Middlesex Boro deserve at least the same level of protection as that provided by DEP and EPA in other school settings.

More shoes to drop in this story, as we explain what went wrong, why it went wrong, and who is accountable.

Part II – Corzine daycare center reforms failed (Wednesday)

Part III – DEP ignored repeated warnings which led to tragedy (Thursday)

Part IV – What the case files say – (pending OPRA replies)

Part V – The solution installed – subslab vapor mitigation system (pending)

Part VI – Lessons learned and real reform agenda (pending)

groundwater pollution monitoring wells at perimeter of landfill almost in backyards of surrounding homes.

shotgun bearing troops in riot gear disrupt a Thomas Merton Center G 20 peaceful rally & march (9/25/09)

[Update 1 - I was 1 of the 50 who filed complaints w/CPRB - see: Protesters blast police response, Oakland arrests ]

[Update 2 - just learned that this was a National Special Security Event

[Update 3: 10/2/09  watch Democracy Now! segment

[Update 4: 11/1/11 - I just came across this video of the G 20 in Toronto in June 2010. Looks really bad. One police tactic I saw also used in Pittsburgh was when police (in full riot gear) marched in lockstep, aggressively towards protesters, while pounding their shields as they walked. It sickened me. I thought of Nazi Germany and Rome. - end updates]

My kids go to school in Pittsburgh, so on Thursday I headed out to see them and witness and participate in the G 20 Summit protests.

Because the G 20 Summit provides a world stage, I was there to warm of “climate destruction ahead” and to advocate for a substantive global warming agenda for the upcoming December Copenhagen Climate Conference negotiations. But there are other major pressing economic policy  issues related to the need to regulate global finance in light of economic collapse, as well as to re-conceptualize global “free trade” and economic development frameworks to protect labor and promote economic and social justice.

riot gear clad troops push through crowd at a peaceful permitted G 20 protest rally

I was appalled by what I saw – and I’m obviously not talking about my kids. It sure looked different than the welcoming Pittsburgh I visited, photographed and posted here.

I’ve never been on the wrong end of a shotgun before. Face to face – it is not a good feeling.

Downtown Pittsburgh in military lockdown.

But that’s not nearly all I saw. There were the dogs, Humvee roadblocks, no pedestrian zones, downtown lockdown, fenced off areas, designated protest zone, hundreds (thousands?) of military troops, helicopters, constant overhead military aircraft (F-16’s?), chemical gases, and even – the first time ever deployed in the US – ear splitting sonic crowd control technology.

There were a handful of anarchists –  some prone to violence – among a few thousand pecaceful protesters. Dozens of college students, observers, media, and everyday local people were included in the crowds that police indiscriminately controlled and managed as violent. (listen to this for police state tactics)

Overwhelmingly peaceful people were met by a massive show of militarized police force. Riot gear armored police and military troops significantly outnumbered protestors.

I personally witnessed provocative, intimidating and repressive military tactics I had imagined were limited to third world countries, not the freedom loving USA. I directly experienced this when a group of 15 or so military troops – in full riot gear – marched aggressively and directly through a crowd at the Merton Center Rally. The crowd was attending a peaceful permitted rally before a march.

University of Pittsburgh student has ideas

Small groups of anarchists - do these kids look scary to you?

I talked to several people, all of whom described similar examples of where police and military units initiated violence, precipitated violence, or severely over reacted to minor threats associated with overwhelmingly non-violent protests. After I got home I viewed several YouTube videos of events that confirmed this overreaction – just do the Google and see for yourself. The tear gassing of University of Pittsburgh students looked particularly egregious.

This level of militarized intimidation is un-American and raises serious questions about constitutionally guaranteed rights of dissent and protest – free speech, association, and opportunity to petition government for redress of grievances. These are not mere words to me – I believe strongly in them. I watched videos where the protestors appealed to military units to respect their constitutional rights, only to have the troops ignore them while arbitrarily declaring peaceful protest illegal assembly. The scenes were redolent of a police state.

Protestors were not allowed anywhere near where the G 20 Summit was held, so President Obama and world leaders were totally isolated and could not hear their voices or see their signs.

Iraq Veterans Against the War join peaceful protestors

And – of course – the media focus on police over-reaction and scattered property damage by a handful of anarchists totally obscures any public discussion of the policy agenda before the G 20 and world leaders – important issues are being ignored – watch “G 20 Summit in Pittsburgh Highlights Economic Decline of Former Steel Capital“.

shotgun toting riot control police confronts college student

In this time of  economic collapse, accelerating global warming, and war, citizens engagement and protest needs to be valued and encouraged.

But when police state tactics intimidate protest and dissent and  media diversion squelches informed public discussion of critical issues, our Constitutional values are assaulted and necessary democratic pressure for reform is derailed.

As Frederick Douglass famously said: “Power concedes nothing without a fight – it never has and never will.”

military unit defends port-a-potties from peaceful protestors

canine unit troops and motorcycle cops intimidate peaceful protestors

Pitt students face off against armed troops

Military choppers monitor Pitt students - at least 3 copters continuously hovered over the city

Some police presence was respectful and appropriate - Pa. State Police (R) and City of Pittsburgh officer (L)

THIS is a REAL RIOT - Steeler Fans riot after Superbowl (Penguins Stanley Cup too)

Parents had organized and were working with local school officials, but the polluter was dragging his feet. DEP failed to back local efforts by enforcing State cleanup laws to hold the polluter accountable. As a result, more cleanup delays ensued as the polluter was allowed to flout cleanup requirements. Children were needlessly exposed to toxic chemicals. 

We are pleased to note that the organizing and hard work of a committed group of parents paid off – DEP just announced  a cleanup agreement. Congratulations to those parents and kudos as well to local school officials.

Irene Kropp, DEP Assistant Commissioner for Site Remediation testifies before the Senate Environment Committee. Kropp was forced to defend DEP after several high profile botched cleanups.

Three years after DEP first learned of the problems at the school, DEP Assistant  Commissioner Irene Kropp finally announced the following:

The DEP case manager attended a meeting at 1:00 PM with the Atlantic Highlands School Superintendent, his attorney and his consultant along with the potentially responsible party (PRP), his attorney and his consultant.   The case manager called just minutes ago to advise me of the following:

The outstanding issues between the parties have been resolved;

The Atlantic Highlands School Board will formally approve the installation of the DEP-approved sub-slab vapor mitigation system at tomorrow’s Board meeting;

The PRP’s consultant will begin installing the system on September 21, with an anticipated completion date of October 16;

The system will be installed on a room-by-room basis while school is in session, however, the rooms undergoing installation will be closed for the entire school day;

The cafeteria/kitchen installation will take place between October 9 through 12, while the school is scheduled to be closed;

In light of these developments, we will not be preparing a formal response to Mr. Wolfe’s inquiry.

Please contact Assistant Director Ken Kloo, at 2-1251, if you have specific questions or need additional information.

Irene Kropp
Assistant Commissioner
Site Remediation Program
NJDEP

In a followup post, we will explain the larger context and target what caused the breakdowns  - more analysis to follow after we read the fine print of the cleanup documents.

Children attending Atlantic Highlands Elementary School are being exposed to toxic chemicals from a contaminated site across the street. Polluted groundwater from the site has migrated under the school building and toxic chemical vapors are seeping into the building. Levels detected in the school exceed DEP’s own safety levels. Science suggests that DEP’s levels may not be tough enough to protect young children.

DEP has known about the problem for over 3 YEARS and failed to enforce cleanup laws by mandating that the polluter install a cost effective and demonstrated technology called a sub slab depressurization system recommended by a national expert who has worked on similar cases across the country.

Amazingly, state officials have failed to learn the lesson of Kiddie Kollege, reported by the New York Times:

Memo Shows Agency Knew of Danger in Child Care Building

By TINA KELLEY

Published: September 1, 2006

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

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

The legislature quickly reponded to this tragedy by passing a law to protect children in day care centers and schools (read it here). The law directed the DEP to require complete cleanups at these sites, and mandated that the state Department of Health and Senior Services adopt indoor air standards to protect children, based on children’s higher sensitivity to chemicals.  Governor Corzine signed the bill into law in January 2007 and issued a press release that said:

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.” (full release here)

The Department of Health has failed to comply with the Kiddie Kollege law and adopt mandated indoor air standards, which were required to be promulgated by July 2008, 18 months after the law’s passage. Equally amazing is that the DHSS also has been aware of the situation in Atlantic Highlands and has advised – literally – to open the windows and prepare to abandon the school (read the DHSS 9/30/08 recommendations here)

continue to ventilate the areas that were monitored to reduce the levels of  volatile compounds identified; 

develop and implement a contingency plan to limit occupancy if conditions within the building change and levels increase in the sampled areas

Local school officials and a group of parents have been working for months on a solution. But they need the power of state law and DEP enforcement to back them up.

Yesterday, I wrote DEP commissioner Mark Mauriello the following letter – let’s hope this gets resolved immediately. We will keep you posted.

Dear Commissioner:

For many months, the Department has known that children in the Atlantic Highlands elementary school (AHES) are being exposed to unsafe indoor toxic air pollutants that exceed DEP’s vapor intrusion (VI) guidance levels. 

As you know, the Department’s VI guidance levels for indoor air exposure are not based on children’s health risks, pharmacokinetics, and metabolism, as required by P.L. 2007, c.1 (AKA, the “Kiddie Kollege” law, which mandated that DHSS adopt such standards by July 2008), and therefore may not be adequately protective.

The AHES indoor air levels exceed levels that have triggered active indoor vapor mitigation systems in other NJ schools, such as the EPA Pohatcong Valley Superfund site in Franklin Township. The AHES levels also exceed those found in DEP’s oversight of vapor intrusion into homes from Dupont’s Pompton Lakes site (note health based screening level for TCE is 1 ug/m3), where active vapor recovery systems have been installed. They exceed protective science based risk levels by 30 to 3,000 times for TCE. The AHES subslab levels also exceed DEP VI groundwater and soil gas screening criteria.

A plume has migrated under the school building from a site across the street that is the suspected source of the problem. Groundwater standards and soil cleanup criteria are exceeded as well. While indoor air has been monitored, the Department approved remedial action at the site is not designed to reduce indoor air levels or protect children’s health.

Indoor air exceedences are for multiple parameters, but cumulative risks to children have not been quantified or considered as a basis for taking action to prevent needless ongoing toxic exposures of children while at school.

For several months now, an organized group of parents has chosen to work quietly and cooperatively with the DEP case manger and local schools officials  – they were led to believe that a sub-slab depressurization system would be installed BEFORE the start of this school year.

Unfortunately, DEP has not enforced cleanup laws and mandated that this system be installed.

As a result, parents are considering drastic action, including mounting an aggressive public campaign focused on the Department’s failure to protect their children and enforce cleanup laws (something, frankly, I’ve urged them to do many months ago. But they have chosen to work with the Department. But their patience is exhausted and they are feeling betrayed.)

 I am giving you this heads up in hopes of preventing a train wreck and to try to secure what should be a fairly simple and cost effective remedy installed immediately.

Please direct your staff to issue a Spill Act Directive to the Responsible Party (with a compliance schedule and stipulated penalties). The Directive should order the revision of the remedial action workplan for the site to mandate that a sub-slab depressurization system needed to protect the health of children at AHES is installed immediately. In the event that the RP does not timely comply, the Department should be prepared to take emergency action and install the system.

 Thank you.

 

Bill Wolfe, Director

NJ PEER (Public Employees for Environmental Responsibility)

That banned post illustrates the reasons that I blog and some of what I hope to accomplish. I try to combine serious ideas, visual images, and analysis to call out the bullshit I see in government, politics, and media every day.

I will focus primarily on environmental issues, not only because I love the natural world, but because the same forces that are destroying the environment also are responsible for our current accelerating economic and political collapse.  Hopefully, I will remain too controversial for the Star Ledger. And perhaps someday we all will recall that I.F. Stone famously said, “all governments lie“. Yet our media institutions have lost touch with that fundamental truth and not only fail to hold government accountable, but often accept government spin at face value, which then becomes the dominant narrative (conventional wisdom, or propaganda) .

But, lets not blame government per se. Scratch the surface of  most government lies and you find a cover for corporate power and economic interests. As political scientist Sheldon Wolin wrote in “Democracy Incorporated: Managed Democracy and the Specter of Inverted Totalitarianism” (excellent review here), our democratic institutions have been hijacked by corporate interests and our Republic transformed to a global empire. And there is little indication that the Obama “change”  is anything more than rhetoric. According to a Wolin interview in Chris Hedges’s new book “Empire of Illusion: The End of Literacy and the Triumph of Spectacle” (Hedges interview here):

The basic systems are going to stay in place; they are too powerful to be challenged.” Wolin to me when I asked him about the Obama administration. ”This is shown by the financial bailout. It does not bother with the structure at all. I don’t think Obama can take on the kid of military establishment we have developed.  This is not to say that I do not admire him. …I think he is well meaning, but he inherits a system of constraints that make it very difficult to take on these major power configurations. I do not think he has the appetite for it in any ideological sense. The corporate structure is not going to be challenged. There has not been a word from him that would suggest an attempt to rethink the American imperium.” 

So, this is the frame of reference I will try to apply to the more circumscribed world of NJ environmental issues and politics. Let me know what you think – one of my aims is to spur dialogue.

Thrifty Individual Reducing Carbon FootPrint

“In our time, political speech and writing are largely the defense of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism., question-begging and sheer cloudy vagueness. Defenseless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them.”
George Orwell, “Politics and the English Language,” 1946
http://www.mtholyoke.edu/acad/intrel/orwell46.htm

Bill Wolfe Vacationing close to home – camping in public parks

(warning – graphic images on the flip)

“The Detainee Photographic Records Protection Act of 2009″
http://gawker.com/5285064/yahoo-nukes-mans-photos-over-obama-comments

Pond at Washington Crossing State Park is unhealthy and in need of restoration

Last week, I wrote about destruction of Ken Lockwood Gorge by DEP (here) - so, my head again exploded to read about another mad development scheme yesterday.

Repeating that flawed land management policy, this time, DEP is planning on destroying forrested portions of historic Washington Crossing State Park

Apparently, DEP wants to build a “30 bed cabin”  in “a deeply forrested” portion of the Park! And this is claimed to be a better alternative to the one vehemently opposed by neighbors!

The park is frequented by lots of day hikers.

 There are plenty of alternatives and far better things to do with DEP money, especially in these times of austere budgets and a huge backlog in maintenance across the state park system.

At Washington Crossing, trails are in very bad shape.

Stream banks are eroding and badly in need of restoration.

A small pond is sedimented and eutrophic. Picnic areas need lots of work.

Historic structures are neglected.

structures are collapsing

The theater is falling apart and could use rehab work as well.

pinnic areas need lots of work

Habitat and forestry work has been neglected for years.

stream backs are eroding due to development surrounding park. More in park development will make current problems worse.

What the hell is going on in DEP? Are the engineer lunatics running the show? They need some adult supervision.

Father and son go fishing, but find destruction instead

Like that proverbial Village in Vietnam that had to be destroyed to be saved, the DEP is destroying one of the few last remaining natural places to provide public access – you can view pictures of the destruction here.

Read the press acounts by Star Ledger here:  

Naturalists dispute state’s idea of improvement

By BRIAN MURRAY

Sunday, August 02, 2009 –  

The South Branch of the Raritan River sparkles on sunny summer mornings, crackling and babbling as it snakes through the towering, tree-covered ridges that define Ken Lockwood Gorge.

The wildlife management area is a 445-acre stretch of natural beauty tucked away in Hunterdon County, and its allure has attracted more than the usual mix of trout anglers whipping their fly rods and hikers searching for a brief afternoon of rustic serenity. Moms pushing strollers, friends walking dogs, picnickers lugging coolers and families pedaling bicycles are more frequent sights along the 2.5 miles of dirt, potholed road that hugs the south-side of the river bank.

Now they have company.

Backhoes, earth-movers and gravel-filled dump trucks are rumbling into the hemlock-lined gorge, along with engineers helping the state Department of Environmental Protection to accommodate throngs of visitors with what they call “improvements.” But some naturalists are calling it the destruction of the very thing people come to enjoy.” [link]

I’ve previously written and posted photo’s of the beauty of Ken Lockwood Gorge here.

But here is the recent story of how I happened upon this outrage.A few weeks back, on a fine July 1 day, my friend Benson Chiles gave me a call – he wanted to check out the fishing at a place called Natirar, a Somerset County park on the South Branch of the Raritan River. Glad to get out on a gorgeous day, I met him there. After a few hours with no luck, I suggested he might do better over at Ken Lockwood Gorge, so we headed over there. I can’t tell you how pissed off we were to see this ugly, poorly designed and needless destruction. A paved road, parking lots, fishing piers, and drainage pipes suited for an interstate highway project in one of the last pristine places in NJ! 

I came back the next day and took pictures which I circulated to my colleagues and the press in an effort to to get word out to try and stop the project. I later found out that DEP defended the project as access and drainage ”improvements”. But, curiously, the October 18, 2006 original project press release by former DEP Commissioner Jackson’ said nothing about any roads or piers – in fact, DEP press release issued at the time falsely claimed the road would become a trail and be closed to traffic - and no mention of pavement or piers. 

But the trail only/road closure plan was scrapped along the way. DEP Deptuy Commissioner Jay Watson has refused to identify who the “public” was that DEP allegedly responded to.

To clear this all up (someone at DEP is misleading the public), I filed an OPRA to find out what’s going on – my file review is tomorrow, 8/19/09. 

We will keep you posted.

postscript – ironically, the Ken Lockwood destruction came to my attention at the same time I was re-reading Edward Abbey’s classic essay “INDUSTRIAL TOURISM AND THE NATIONAL PARKS” where he nails exactly what is going on here – just insert state for national:

“There may be some among the readers of this book, like the earnest engineer, who believe without question that any and all forms of construction and development are intrinsic goods, in the national parks as well as anywhere else, who virtually identify quantity with quality and therefore assume that the greater the quantity of traffic, the higher the value received. There are some who frankly and boldly advocate the eradication of the last remnants of wilderness and the complete subjugation of nature to the requirements of — not man — but industry. This is a courageous view, admirable in its simplicity and power, and with the weight of all modern history behind it. It is also quite insane. I cannot attempt to deal with it here….

The Park Service, established by Congress in 1916, was directed not only to administer the parks but also to “provide for the enjoyment of same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” This appropriately ambiguous language, employed long before the onslaught of the automobile, has been understood in various and often opposing ways ever since. The Park Service, like any other big organization, includes factions and factions. The Developers, the dominant faction, place their emphasis on the words “provide for the enjoyment.” The Preservers, a minority but also strong, emphasize the words “leave them unimpaired.” It is apparent, then, that we cannot decide the question of development versus preservation by a simple referral to holy writ or an attempt to guess the intention of the founding fathers; we must make up our own minds and decide for ourselves what the national parks should be and what purpose they should serve.

The first issue that appears when we get into this matter, the most important issue and perhaps the only issue, is the one called accessibility. The Developers insist that the parks must be made fully accessible not only to people but also to their machines, that is, to automobiles, motorboats, etc. The Preservers argue, in principle at least, that wilderness and motors are incompatible and that the former can best be experienced, understood, and enjoyed when the machines are left behind where they belong — on the superhighways and in the parking lots, on the reservoirs and in the marinas.

What does accessibility mean? Is there any spot on earth that men have not proved accessible by the simplest means — feet and legs and heart? Even Mt. McKinley, even Everest, have been surmounted by men on foot. (Some of them, incidentally, rank amateurs, to the horror and indignation of the professional mountaineers.) The interior of the Grand Canyon, a fiercely hot and hostile abyss, is visited each summer by thousands and thousands of tourists of the most banal and unadventurous type, many of them on foot — self-propelled, so to speak — and the others on the backs of mules. Thousands climb each summer to the summit of Mt. Whitney, highest point in the forty-eight United States, while multitudes of others wander on foot or on horseback through the ranges of the Sierras, the Rockies, the Big Smokies, the Cascades and the mountains of New England. Still more hundreds and thousands float or paddle each year down the currents of the Salmon, the Snake, the Allagash, the Yampa, the Green, the Rio Grande, the Ozark, the St. Croix and those portions of the Colorado which have not yet been destroyed by the dam builders. And most significant, these hordes of nonmotorized tourists, hungry for a taste of the difficult, the original, the real, do not consist solely of people young and athletic but also of old folks, fat folks, pale-faced office clerks who don’t know a rucksack from a haversack, and even children. The one thing they all have in common is the refusal to live always like sardines in a can — they are determined to get outside of their motorcars for at least a few weeks each year.

This being the case, why is the Park Service generally so anxious to accommodate that other crowd, the indolent millions born on wheels and suckled on gasoline, who expect and demand paved highways to lead them in comfort, ease and safety into every nook and corner of the national parks? For the answer to that we must consider the character of what I call Industrial Tourism and the quality of the mechanized tourists — the Wheelchair Explorers — who are at once the consumers, the raw material and the victims of Industrial Tourism. …

Accustomed to this sort of relentless pressure since its founding, it is little wonder that the Park Service, through a process of natural selection, has tended to evolve a type of administration which, far from resisting such pressure, has usually been more than willing to accommodate it, even to encourage it. Not from any peculiar moral weakness but simply because such well-adapted administrators are themselves believers in a policy of economic development. “Resource management” is the current term. Old foot trails may he neglected, back-country ranger stations left unmanned, and interpretive and protective services inadequately staffed, but the administrators know from long experience that millions for asphalt can always be found; Congress is always willing to appropriate money for more and bigger paved roads, anywhere — particularly if they form loops. Loop drives are extremely popular with the petroleum industry — they bring the motorist right back to the same gas station from which he started.

read the whole Abbey essay here