WolfeNotes.com

[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. ~~~ end update.]

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).

Raritan Bay Slag Superfund Site – children’s playground in background

[Updates below

EPA Region 2 Administrator Judy Enck, Congressman Frank Pallone, and local officials from Old Bridge held a press conference yesterday to discuss the cleanup of the Raritan Bay Slag Superfund site with concerned community members and environmental groups (see this and this and this for info about the site and this for press coverage. and NBC TV).

lead slag dumped on beach, leaches lead

The problems date back to the 1970’s. The beach is contaminated with extremely high levels of lead, as a result of construction of a sea wall and jetty with lead smelter slag waste. The lead has leached out of the slag and contaminated sand, sediment, and fish. Somehow, despite the fact that NJ DEP knew about the problem for years, this illegal waste disposal and construction was allowed to occur. Later, public funds were spent on a park on top of the contamination, so due diligence and site investigation failed. After all this, people were unknowingly exposed to high levels of lead for years, yet nothing was done. Cleanup cost (to taxpayers) is estimated at over $100 million. Someone should be in jail.

According to EPA:

large chunks of slag are everywhere along beach

The Raritan Bay Slag site currently consists of three areas that contain lead slag from blast furnace bottoms, a byproduct of metal smelting, which was used to construct a seawall and a jetty along the southern shore of the Raritan Bay in Old Bridge Township and Sayreville, and areas of Margaret’s Creek in Old Bridge.

The first area is the Laurence Harbor seawall, adjacent to the Old Bridge Waterfront Park in the Laurence Harbor section of Old Bridge Township. The second area consists of the western jetty in Sayreville and extends from the Cheesequake Creek Inlet into Raritan Bay. The third is approximately 50 acres associated with Margaret’s Creek, where elevated lead levels have been identified.

Lead levels on the beach are in the 150,000 – 200,000 ppm range (that’s 15-20%!). The NJ DEP residential soil cleanup standard for lead is 400 ppm, so the beach exceeds safe levels by 500 times. Lead is a potent neuro-toxin that harms the development of children’s brains:(link)

new mom strolls with infant past toxic lead beach. She knew nothing about the lead problems at the beach or in general.

Small children can be exposed by eating lead-based paint chips, chewing on objects painted with lead-based paint, or swallowing house dust or soil that contains lead.

Children are more vulnerable to lead poisoning than adults. A child who swallows large amounts of lead may develop blood anemia, severe stomachache, muscle weakness, and brain damage. If a child swallows smaller amounts of lead, much less severe effects on blood and brain function may occur. Even at much lower levels of exposure, lead can affect a child’s mental and physical growth.

moms strolls past high lead warning sign at Superfund site

Exposure to lead is more dangerous for young and unborn children. Unborn children can be exposed to lead through their mothers. Harmful effects include premature births, smaller babies, decreased mental ability in the infant, learning difficulties, and reduced growth in young children. These effects are more common if the mother or baby was exposed to high levels of lead. Some of these effects may persist beyond childhood.

The Star Ledger wrote a set up story that ran on Tuesday. As is typical, they focus on inconvenience to local beach-goers. They downplayed the  public health risks – and didn’t even mention why lead is a health risk (which is why the beach is a Superfund site). But the Ledger did find time to mention real estate values and blast EPA for cleanup delays. In addition to ignoring the public health and environmental problems at the site, the Ledger coverage also didn’t report on the larger policy issue and how industry lobbyists and republican backers are blocking efforts to restore the funding of the Superfund  program (lack of funds shifts the cleanup burden from polluters to taxpayers).

children play virtually on top of unstabilized lead Superfund site. The Park has not been completely sampled to determine lead levels, yet remains open.

Pallone and EPA officials met with a small group of residents after the press conference and site tour. I missed it to take my own tour but returned an hour later to listen to the finish.

A well informed and angry resident asked EPA why – with all the evidence – they had not taken enforcement and cost recovery actions. As reported in the Courier-News story:

 

The jetty and seawall were made from lead slag from blast furnace bottoms, a byproduct of metal smelting. A letter on file with the state Department of Environmental Protection on National Lead stationery and dated from the 1970s states that a trucking firm was taking lead from a National Lead plant and dumping it at the sites.”‘ (link)

EPA was asked point blank why they were not going after NL Lead and the trucking firm (the same company that built the sea wall).

***EPA lamely replied:  “We don’t get sites cleaned up by going to court”. –

EPA surrendered enforcement *litigation options – just what the polluters like to hear! Failure to sue polluters is inexplicable given the evidence in this case, especially given that Superfund is broke and taxpayers are picking up the cleanup tab.

[***Update: This may get longer than the original post, but please read as this is important. I received a call today from EPA Region 2 to explain that I got the facts and EPA’s position on enforcement and the taxpayer tab wrong. EPA advised me that: 1) Superfund enforcement in this case is cost recovery for the cleanup; 2) EPA is researching and will soon name “potentially responsible parties” (PRP’s) (the first step in the cleanup cost negotiation and settlement process); 3) EPA will do cost recovery; and 4) funding has been authorized for remedial investigation and removal.

I try hard to be accurate. While I appreciate EPA’s efforts to assure the public that the facts and their positions are communicated clearly, I will note the following in response to EPA’s clarification:

1) my post provided a linked to EPA’s own press statement and internet links. EPA’s press statement and program links said nothing about: a) enforcement policy; b) the status of identifying or naming PRPs and RPs; c)  EPA’s cost recovery, treble damages, and natural resource damage restoration & lost public use claims plans for the site; and d) a commitment to a settlement timetable. If EPA wants good information provided to the public, then they need to sharpen their own press releases and web materials instead of relying on correcting bloggers (I am good, but not that good!);

2) I quoted EPA Walter Mudgan accurately, and noted that I had not been in the briefing for the first hour (so I may have missed something). I spoke with Mudgan privately immediately after he made that statement and he did not clarify it;

3)  EPA has multiple statutory enforcement tools. In addition to RCRA and Clean Water Act enforcement authorities that are punishment oriented, as opposed to Superfund remediation oriented (that Region 2 failed to note), EPA has at least 4 Superfund cleanup oriented enforcement options. These options include issuing unilateral Administrative Orders and pursuing litigation. EPA has had sufficient time to complete investigation, name PRP’s ,and issued PRP notification letters. If they were not ready to have done so for the press conference, then EPA should have – in writing – made their intentions explicit regarding their overall cleanup plans, timetables, status and source of funding, and enforcement/settlement principles, including the specific statutory authority they would rely on. click on and See  EPA – Interim CERCLA Settlement Policy

VXII. Targets for Litigation

The Regions should identify particular cases for referral in light of the following factors:
-substantial environmental problems exist:
-the Agency’s case has legal merit;
-the amount of money or cleanup involved is significant;
-good legal precedent is possible (cases should be rejected where the potential for adverse precedent is substantial);
-the evidence is strong, well developed, or capable of development;
-statute of limitations problems exist;
-responsible parties are financially viable.

The goal of the Agency is to bring enforcement action wherever needed to assure private party cleanup or to recover costs. The following types of cases are the highest priorities for referrals:

-107 actions in which all costs have been incurred:
-combined 106/107′ actions in which a significant phase has been completed, additional injunctive relief is needed and identified, and the Fund will not be used:
-106 actions which will not be’ the subject of Fund-financed cleanup.

Referrals for injunctive relief may also be appropriate in cases when it is possibile, that Fund-financed cleanup will be undertaken. Such referrals may be needed where there are potential statute of limitation concerns, or where the site has been identified as enforcement-lead, and prospects for
successful litigation are good.

This would facilitate shaping public and PRP expectations for cleanup and enforcement response. Per EPA policy:

EPA has adopted an “enforcement first” policy for removal and remedial actions at CERCLA sites. This means that when PRPs for a site have been identified, EPA typically will first pursue the PRPs to conduct the site response rather than conduct the cleanup with Superfund money. EPA may seek to obtain PRP participation through settlements, unilateral orders, or litigation. In addition, EPA may take the lead for cleanup activities and seek to recover its costs from PRPs. At 95 percent of non-federal facility Superfund sites where there are known viable, liable parties, the Agency endeavors either to reach a settlement or take an enforcement action before the start of a remedial action.

EPA still hasn’t made their enforcement response actions for the site absolutely clear.

All  that being said, while my original post was factually accurate and EPA could have done a lot better, upon reflection my sense is that I was – at this stage of the cleanup – overly critical of EPA and I may have overstated the taxpayer liability at this site. But, in saying this, I am essentially giving  EPA a lot of trust –  lets hope they can honor that trust.

End update]

Update #2 – 4/18/10 – I gladly stand corrected for below criticism of media for ignoring this story. Asbury Park Press: “Polluter pays” tax sought to fund cleanup of Superfund sites”

Update #1: 4/9/10 – note important clarification above on EPA enforcement policy]

Of course, we rarely  read about or see what’s really important in the press coverage.

proud mom and young son – in background, EPA public health warning sign and Superfund cleanup contractors.

xxxx

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 – end update ]

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.

[Update: We were since advised by DEP Asst. Commissioner Kropp that the cancer risk standard under regulations implementing the law is 1 in 10,000, which is 100 TIMES LESS STRICT THAN DEP REGULATIONS of 1 in a million. Kropp berated me and the entire environmental community for “missing” that. But she knew but supported the bill and never blew the whistle while at DEP. ~~~ end update]

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 contaminated by 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 exclusively 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 DEP “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)