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!

The DEP and DuPont had been discussing that pollution privately for years. DuPont began drilling monitoring wells on its site to test for groundwater contamination in 1981. The DEP told DuPont in April 1983 to assess the impact on groundwater. In a July 1984 report to the DEP, DuPont said the groundwater was contaminated with lead, selenium and volatile organic compounds. It would later also be shown to contain mercury.

The 1984 report also said that “polluted groundwater may be leaving the site.”

In October 1985, DuPont sent a letter to some nearby residents, saying some groundwater was contaminated beneath the facility. In the letter, plant manager Anthony V. Scancella told residents that DuPont thought the solvents came from operations at the plant mostly during World War I and World War II.

He wrote: “I want to assure you that there is no health concern for you or your family.”

Two months later, Scancella sent residents an update — DuPont had sampled water from nine private wells from homes near the site and five had detectable levels of solvents.

In the reassuring letter, Scancella said DuPont was “instituting a program to clean up this contaminated groundwater.” He concluded: “I want to reemphasize that there is no health concern for you or your family from the low levels of solvents we have detected.”

The levels were not low. A DEP document from the period indicates one residential well showed contamination of nearly 5,600 parts per billion. The EPA’s current maximum contaminant levels for TCE and PCE, two of the solvents in the groundwater, are 5 parts per billion each.

Growing mistrust

 By 1989, DEP officials became impatient with DuPont. In a memo that January, the DEP stated DuPont “has done nothing to halt the spread of off-site contamination.”

“The off-site migration of the contaminated groundwater is a threat to human health,” the DEP said, and “requires the most immediate action.”

A month later, a DEP geologist reported that “at a DuPont-sponsored public meeting, DuPont informed people there was no reason for concern about the groundwater in the area. It appears that the public is possibly being misled about the problem.”

The State of North Carolina’s Science Advisory Board (SAB) has issued a draft risk assessment and recommended “Maximum Allowable Concentration”  (MAC) in groundwater for the toxic chemical pollutant known as PFOA (perfluorooctanoic acid).

Not surprisingly, Dupont, the corporation responsible for poisoning workers and water resources with PFOA, played a major role in the NC SAB’s deliberations.

One could fairly say that Dupont’s hired guns polluted the science (and pressured regulators at EPA).

In fact, the same Dupont consultant who polluted NC science, Dr. Tardiff, previously appeared in NJ to attack NJ DEP science.

Interestingly, NJ’s own Rutgers scientist, Dr. Keith R. Cooper, wrote in the April 19, 2010 scientific journal Food and Chemical Toxicilogy that  Tardiff’s work contained:

“numerous errors, omissions, misrepresentations, and deviations from established risk assessment approaches…”;

The North Carolina SAB recommendations and MAC have relevance for New Jersey, as NJ DEP is now grappling with PFOA pollution, which has spawned a class action lawsuit. North Carolina’s SAB recommendation will impact NJ because: :

1)  North Carolina relied on Dupont’s science to reject NJ’s PFOA risk assessment approach and NJ’s far lower and more protective 0.04 ppb recommended safe drinking water level;

2) Dupont will use the North Carolina SAB recommendations to attack NJ’s science and undermine the development of its own NJ state drinking water “Maximum Contaminant Level” (MCL). Those efforts have stalled since NJ DEP released its PFOA risk assessment; and

3)  We have warned about the influence of regulated entities, such as Dupont, who is a member of NJ’s recently formed Science Advisory Board (SAB). If Dupont is allowed to buy its own science and use that to sway North Carolina’s SAB, you can be sure they will try the same manuever on NJ’s SAB.

See all the releavent documents in links from PEER press release below:

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.”

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.

Raritan Bay estuary, site of proposed wind project behind Bayshore Regional Sewer Authority Plant

[Update: 10/25/09 - Star Ledger - Proposed New DEP Regulations Renew Sniping Among Environmentalists

I support wind power, but will not sit idly by and watch as wind lobbyists dictate DEP policy and permit decisions. And we are not fooled by cynical PR stunts by the Governor to create a false appearance of reform - see Corzine Executive Oder #148.

We have been writing a lot about undue and improper political pressure on DEP (for example, see: Political Pressure on DEP – How The Game is Played where we disclosed exactly how former DEP Commissioner Brad Campbell and State Senator Sweeney (D-Gloucester) are strong arming DEP to issue wind approvals in Delaware Bay).

But the politics have gotten so bad that now even the DEP Commissioner is complaining about it (see this for DEP emails linking wind lobbyists, the Governor's Office, and DEP Commissioner).

Some of this improper pressure recently resulted in criminal indictments of State Assemblymen Van Pelt (R-Ocean) and Smith (D-Hudson) (See: DEP Involved in Corruption Scandal).

Assemblyman Van Pelt was indicted for taking a bribe to use his legislative powers to pressure DEP to issue CAFRA permits. He bragged that DEP "worked for him", that he knew how "to work the channels" at DEP, and  that he had sucessfully pressured DEP to issue prior CAFRA and wetlands permits. (see Van Pelt criminal complaint here).

On its face, the Van Pelt's indictment creates an appearance of impropriety in terms of political influence on the DEP permit process. This requires investigation to get the facts surrounding Van Pelt's influence on DEP, if ONLY to vindicate DEP and restore public confidence in DEP (see Star Ledger: N.J. environmental groups call for investigation of DEP in light of corruption arrests).

Governor Corzine's own EO 148 admits the problem, but Corzine cynically diverts attention to local officials (instead of State officials) and limits solutions to the local level in only a handful of towns:

WHEREAS, because of the nature of the reported conduct on the part of these local officials charged with corruption, and particularly those who choose to remain in office, and in furtherance of this administration’s commitment to ensuring the integrity of all State approval processes, it is appropriate to provide for additional scrutiny of applications for State approvals that involve jurisdictions headed by officials charged in the corruption probe who remain in office; (link to EO 148)

Assemblyman Smith was  indicted for taking a bribe and promising to get DEP approval of a toxic site cleanup (NFA letter) in Jersey City in order to build a daycare center and public housing. The Smith criminal complaint has a wired cooperating witness (CW) saying that Smith called DEP Commissioner Mauriello. The CW's wire then says someone from DEP called Smith back and that- after the callback from DEP - that everything is OK in securing DEP approvals. The Bergen Record reported on leaked DEP emails that show at least 7 DEP staffers were involved in responding to Smith's request, so clearly Smith was able to get the DEP's immediate attention (see Bergen Record: DEP e-mails follow lawmaker's request). And the criminal complaint also reveals a senior DOT official saying that the DOT approvals for the project was a good  "business opportunity" for a colleague in DOT overseeing the approval. (see Smith criminal complaint here)

But there have been a series of other highly visible cases where the political pressure on DEP may not have risen to criminal conduct, but nonetheless were clearly unethical and harmful of human health and the environment. Many of these embarrassing episodes have gotten significant media coverage, such that DEP's integrity is reasonably subject to question by a skeptical public.

The latest episode in the saga of politicization of DEP decisions involves a wind project at the BayShore Regional Sewer Authority. The Asbury Park Press wrote about it Saturday (see: State: Wind turbine plan must satisfy DEP rules )but that coverage got it wrong - we do NOT oppose this wind project - and the APP story really missed the most significant aspect of the story that we leaked to them.

In a September 23, 2009 e-mail to Kenny Esser from Governor Jon Corzine’s office, Fred DeSanti, a consultant for the project, asked for “direct intervention at this time from the front office” to stop the state Department of Environmental Protection from imposing “unreasonable and inflexible requirements” that would delay the project and possibly jeopardize the more than $3 million in federal stimulus funds.

DEP Assistant Commisioner Nancy Wittenberg - no tree hugger and a former NJ Builders Association lobbyist - sent an email to DEP Commissioner Mauriello that complained about Esser leaning on her. DEP Commissioner Mauriello echoed her frustration.

The next day, on September 24th, Mauriello sent an e-mail to his top staff complaining about being leaned on by the Governor’s office:

“[The attached] illustrates the pressure that Nancy [sic] is under related to this project, and we have little ability to control it and of course the full story and context does not get represented with these folks, but what else is new.”

So what else is new? Right.

Mauriello’s reply illustrates how bad morale at DEP has become due to constant political dictates from lobbyists and the Governor’s office to compromise environmental protections, suppress or distort science, and relax enforcement  in order to promote economic development.

This has got to stop – DEP independence and integrity must be restored.

Despite the fact that wind power is a laudable and much needed renewable source of energy, the ends do not justify the means. Promotion of wind must not be allowed to compromise the integrity of DEP or protections of natural resources.

To begin to restore DEP integrity and public confidence in the agency, we need and independent investigation to document the causes and extent of the problem. Based on that investigation, a series of corrective action reform measures must be put in place.

One element of that reform effort must be transparency and disclosure requirements about exactly who DEP is meeting with behind closed doors.  Sunshine is the best disinfectant and can counteract the power of special interests by empowering citizen watchdogs and news media (see: This Is Why We Need Transparency at DEP).

Another necessary reform measure is whistleblower protections. DEP staffers witness corrupt practices on a daily basis, but rightfully don’t want to sacrifice their careers disclosing wrongdoing. We need to empower the agency professionals and block the current widespread practice of retaliation for conscientious public disclosures of mismanagement, manipulation of science, and threats to public health and the environment. NJ’s current whistleblower laws do not protect employees who disclose such problems publicly. (see: Star Ledger: End Political Influence on DEP Regulators).

Another must include restrictions on what are legally known as “ex parte” communications to DEP. An ex parte communication is a communication to DEP from any person  about a pending DEP matter that occurs in the absence of other parties to the matter and without public notice and opportunity for all parties to participate in the communication. People often refer to these communications as “one-sided,” “off-the-record,” or private communications between a DEP staffer and any person concerning a matter that is pending or impending before the DEP. According to California regulations:

Rules regarding ex parte communications have their roots in constitutional principles of due process and fundamental fairness. With public agencies, ex parte communications rules also serve an important function in providing transparency. Ex parte communications may contribute to public cynicism that decisions are based more on special access and influence than on the facts, the laws, and the exercise of discretion to promote the public interest.

Ex parte communications are fundamentally offensive in adjudicative proceedings because they involve an opportunity by one party to influence the decision maker outside the presence of opposing parties, thus violating due process requirements. Such communications are not subject to rebuttal or comment by other parties. Ex parte communications can frustrate a lengthy and painstaking adjudicative process because certain decisive facts and arguments would not be reflected in the record or in the decisions. Finally, ex parte contacts may frustrate judicial review since the record would be missing such communications.

Atlantic County Utilities Authority wind project - Atlantic City, NJ

NJ Business and Industry leaders met behind closed doors today at posh Forsgate Country Club to press for more concessions on key environmental regulations to promote economic development.
  

The NJ BIA event, dubbed “Meet the Decision Makers” featured a panel discussion with DEP Commissioner Mark Mauriello, Senate Environment Committee Chairman Bob Smith (D-Middlesex), Assembly Environment Committee Chairman John McKeon (D-Essex), and Senator Kip Bateman (R-Somerset).

This kind of event – just weeks before a Gubernatorial election – is designed to send a clear political message to DEP to back off enforcement and to continue to weaken environmental regulations to promote economic development. It is another example of how powerful lobbyists for special interests are granted preferential high level access and are able to work behind the scenes to influence policy, gut environmental protections, and politicize science. 

At a time when DEP budgets are slashed, work related travel eliminated, and the undue political influence of special interests is the focus of ethics and corruption investigations across the state, this event sends exactly the wrong message.

A September 28, 2009 email by DEP legislative aid John Hazen – who reports to Mauriello – reveals that Senator Smith demanded specific DEP replies to a series of questions to advance the NJBIA agenda.
 

DEP Hazen (R) confers with Senators Smith (L) and Bucco (back facing) before Senate Environment Committee hearing (5/19/08)

Hazen solicited responses to the following questions posed by NJBIA and conveyed to DEP by Smith:

 John Hazen 9/28/2009 11:50 AM >>>

On October 9th NJBIA will be hosting Commissioner Mark Mauriello, Senator Bob Smith, Assemblyman John Mckeon And Senator Kip Bateman For A “Meet The Decision Makers Event”.

 In preparation, Senator Smith’s office has contacted me to see if we can provide him with some background/briefing/info to answer the following questions. Can you please review the following and get back to me with a brief writeup on your respective topics? Thanks. 

 1. What are your goals going forward, not only in the Lame Duck Session, but beyond?

 2. What is the status of the Licensed Site Remediation Professional program?  How many temporary licenses have been issued?  What is the status of the board?

3. What is the status of the Water Quality Management Planning process? Where have you seen problems?  How are you dealing with the conflicts arising from the sewer service area maps the department is using? 

4. What is the status of the Science Advisory Board?  What are the first few issues you see them tackling?

5. If the bond act fails, do you see the need for an immediate stable source of funding for open space and farmland preservation?  If the bond act passes are you still contemplating a water tax?

 6. As companies do a better job at lowering emissions, what are the challenges you see in funding the Title V program?  Is it fair to raise fees on companies that are taking steps to lower emissions and improve the overall air quality of the State?

7. What is the status of the State Water Supply Master Plan?

I managed to crash the event and below report the following discussion that ensued. This can give you a sense of the business community’s concerns.

Overall, I was disappointed but not surprised by the lack of vision or leadership on the environment.

former Governor Jim Florio was in attendance

I was appalled by how willing both DEP Commissioner Mauriello and legislators were to accommodate business demands.  I was shocked by Senator Smith’s remarks about stealing property, property rights, and an all out attack on new DEP Water Quality Management Planning rules. And I was embarrassed by the juvenile bashing and personal attacks on colleagues Dave Pringle and Jeff Tittel.

Following short introductory statements by the panelists, a question (Q) and answer (A) session took Place. Here is a summary.

1. Licensed Site Professionals (LSP) (this new program got the most discussion. NJBIA distributed a fact sheet to members. Here are EPA audits and our take on SRP and LSP)

What is the status? How many license applications?

A: (Mauriello) Irene Kropp has done a wonderful job in developing an entire new program. Nothing being done in the dark behind closed doors – open and transparent process, listening to stakeholders and advisory groups. Looking forward to looking the skeptics in the eye when the program is working.  About 90 applications submitted, 35 approved. Seeking guidance from the Governor’s Office on LSP Board appointments. Program takes effect Nov. 3, 2009 “D Day”. Good news for the environment and really good news for the regulated community.

2. What is the status of proposed rules to delist Cooper’s Hawk as a threatened species? A $40 million project is being held up. Additional projects worth hundreds of millions of dollars are being held up. Economy can’t afford that. DEP drafted rules years ago, but has not proposed. When will DEP propose these rules?

A: (Maurielo) I am familiar with your project. Thanks for the fax describing it. DEP draft rules undergoing legal review. Very close to proposal – expect proposal in next few months. In the meantime, what can the DEP do to expedite your project? Perhaps you should apply for other permits – we will issue.

3. What is status of Science Advisory Board (SAB)? (see this for background on SAB)

A: (Mauriello) The SAB was modeled on EPA SAB. Don’t know if you read blogs [Note: clearly a reference to this post], but our critics are wrong – lots of scientific talent in NJ. I’ve made it clear that SAB will not review standards or drive policy.   160 scientists nominated or self nominated. Despite what blogs say, I had only my first meeting last week with DEP scientists to discuss SAB. Haven’t reviewed names of candidates. (Despite what the blogs say). Looking for diversity and balance. 

4. What is the status of the Report mandated by the Global Warming Response Act and development of regulations to implement the Global Warming Response Act (GWRA)?

A: (Mauriello) GWRA a bold law, but real work needs to be done. DEP implementing RGGI (20% portion of $60 million revenue) on forest and marsh sequestration. 300 application for funding under review. Staff are reviewing comments on the draft report. We just proposed new CAFRA rules to promote solar and wind. Final Report upcoming. No real regulatory focus, more incentives. 

5. What is the status of the Water Supply Master Plan? Why doesn’t NJ go back to US Supreme Court on DRBC allocations, which are unfair to NJ?

A: (misunderstood the question, spent 5 minutes outlining USACOE flood data and reservoir storage; flood hazard regulations; and stream upgrades).

Q: Followup: You misunderstood my question – I am concerned about WSMP science and  models that determine safe yields and 1983 DRBC agreement. Current plan uses 25 year old data.

(there was a later follow-up question on WSMP)

A: (Mauriello) Draft final WSM plan is close. Delayed because DEP waited for new USGS data/model. Plan will identify new population projection growth based surplus/deficit areas, as well as what we need to do to transfer water to deficit areas. “We don’t tell people how to manage water – purveyors have lots of expertise. We try to provide tools for management.”

6. Would you support an extension of the Permit Extension Act, which expires in June 2010? Is such a bill likely to move in lame duck?

A: Smith: Yes

McKeon: Yes

Bateman: Yes

Tavit Najarian, consultant, asks about TMDLs and DEP's proposed new phosphorus water quality standards

7.  The Clean Water Act “Total Maximum Daily Load” (TMDL) program lacks a sound scientific basis. DEP just revised the basis for the phosphorus standard from a numeric to a narrative basis. Why? How will this change impact TMDL’s already finished and under development?

A: (Mauriello – did not answer the questions). I agree that TMDL is inefficient and ineffective basis for setting permit discharge limits.  I am looking at the entire TMDL program. DEP spends a lot of time and money developing TMDLs, and then litigating them in court. DEP must then face administrative appeals of permits when the TMDLs are used and incorporated in discharge permits.  The TMDL program will be the first issue I charge the SAB to look into.  I am sure that my science staff will hear about that in less than an hour (laughter).

8. What can DEP and legislators do to stop job loss and loss of production (e.g. recent Sunoco refinery closure)?

A: Smith “We shouldn’t be the problem”

A: McKeon –that’s a complex question involving taxes and labor and the needs of a densely populated state of 9 million people. It will always be more expensive to live in NJ. We can work to expedite permits, but will not “look the other way” and compromise environmental protections which is “short sighted and will poison the future of the state and make it an economic wasteland”.

9. Solar panels are considered “impervious surface” which discourages installation. Why? We need guidance from DEP of new definition of impervious cover to stimulate solar on the ground.

 A: (Mauriello) DEP doesn’t have statewide jurisdiction over IC – in CAFRA and Highlands yes. MLUL has inconsistent definitions too.  Governor Corzine has directed me to make accommodations for renewable energy.

A: (Smith)  – you need a bill to define IC. I will be introducing a bill soon to do that.

10. How can DEP promote sequestration of carbon in forests on private lands?

A: (Smith) – support S713 “Forest stewardship plans” as opposed to “Forest Management Plans”

11. Politics

a) Endorsements – What’s up with environmental groups endorsements? None backed Governor. Can we expect more surprises from them? (lot’s of laughter and jokes about Jeff Tittel and Dave Pringle)

A: Smith: “Anyone here in love with Jeff Tittel, please stand up”

“Live by the sword, be prepared to die by the sword”

A: Bateman: Give Dave Pringle credit.

A: McKeon: DEP has been reasonable on regulations, which is why the environmental groups don’t support the governor.  If Corzine wins, the groups that didn’t endorse will lose influence and credibility.  This will harm the environment because environmental groups will be perceived as “paper tigers” unable to influence voters and the public.  This makes it harder to pass pro-environmental legislation or DEP initiatives. A set back for the environment.

A; Smith – Disagree with Bateman. Tittel/Pringle opposed LSP.  Gov. did the right thing and took them on. There are 200+ environmental groups that disagree with Tittle/Pringle but can’t speak out due to 501C3 status. There are many other groups that support the Gov. but won’t speak out because they are afraid of Tittel/Pringle.   

b) Anti-business climate – what can be done? DEP has worked extremely well with EDA and Gerold Zarro in Gov. Office. What more can be done?

c) Water Quality Management Planning rules – ant-development, takings and property rights

Smith went off. Big problem with WQMP rules. DEP planning to designate areas as non-sewer service areas based on old flawed maps and without knowledge or consent of land owners. This will shut down development. Big problem for land owners, builders, developers.  In designated NSSA, “you’re dead meat”. “My biggest beef is that this steals property rights – we did it in the Highlands.” This is “unfair to property owners”. “All these land owners whose land is about to be designated NSSA” should be aware. Oh, we’re careful not to trigger a legal taking, but we come close and steal property rights. DEP maps and aerial photo’s are flawed. Site in my district whre a COAH project is designated NSSA. I support Sarlo bill to place 2 year moratorium on implementation of new WQMP rules. Provide notice to property owners and opportunity to challenge DEP designations.  “Sorry if this sounds anti-environmental but I’ve already stolen 500,000 acres in this state” (Highlands?). Some NSSA lands broadly designated by mere “possibility” of T&E habitat. “We’ve taken 60% of the land area of the state in Planning Areas 3,4, and 5. You can’t build anything new there.” “If you own property call you county planning board and find out about NSSA designation”.

Mauriello pushed back effectively, acknowledged working to relax deadlines and be flexible, but new rules required because plans are so old and flawed, and don’t consider water supply, wetlands, and other environmental constraints that would prohibit the issuance of land use permits. Working on more notice to landowners. Working on maps – bog turtle habitat suitability improper in some places. TWA permits grandfathered. “My goal is to pre-empt the need for the Sarlo legislative moratorium bill – DEP is making concessions.” (we wrote about the Sarlo bill here)

d) Lame Duck Priorities – Smith:

            Forest stewardship

            ATV registration

            Greenwood Lake Commission fee authorization

            Restrictions on nitrogen fertilizers – Barnegat Bay eutrophication

            Salwater fishing registration

            Dam restoration

Next Session priorities – Smith

            Focus on Barnegat Bay ecosystem (we wrote about Barnegat Bay here)

            Energy bills – renewables

 

 Alexauken Creek, West Amwell, NJ – healthy Category One stream buffer

The Department of Environmental Protection (DEP) provides enhanced regulatory protections for “exceptional” waters of the State, known as “Category One” or “C1″ streams. No disturbance of soils or vegetation is allowed by “major development” within a 300 foot wide vegetated stream buffer (on each side). Wide vegetated buffers protect water quality, provide plant and wildlife habitat, and reduce flooding risks.

On November 3, 2003 DEP proposed to classify the Alexauken Creek  a C1 stream. No doubt, DEP considered the above stretch of the Alexauken in West Amwell. According to DEP:

Delaware River Basin: Alexauken Creek –   The Department is proposing a Category One antidegradation designation for the entire length of the Alexauken Creek including all named and unnamed tributaries based on “exceptional ecological significance“. Data on the health of the benthic macroinvertebrate community in Alexauken Creek indicate low stress (non-impaired) to the aquatic community with a good diversity of intolerant organisms. The in-stream habitat quality assessment indicates an exceptional (optimal) habitat quality (see Table C). The Alexauken Creek received a good Fish IBI rating with 16 different species identified in the stream” (see @ page 10-11)

The Alexauken C1 proposal was adopted on August 2, 2004. Only the NJ Builders Association opposed it.

So, it’s crazy  that local farmers are allowed to ignore the importance of protected buffers and not only destroy stream vegetation, but graze cattle directly in the stream. This pollutes an important tributary to the Delaware River (upstream of Trenton’s water supply intake). It also increases flooding risks to downstream homes and the City of Lambertville.

cattle grazing in C1 stream and poor land management of buffer. Note how the buffer is clear-cut in the power line right of way

PSEG clearcuts vegetation in stream buffer, exacerbating erosion that ironically now threatens their own powerline

PSEG clear cuts vegetation in steep slopes in the stream buffer. This exacerbates soil erosion caused by grazing and poor farmland management practices:

Downstream of this farm, the flooding is made worse:

Alexauken floods after small rainfall (this is just feet downstream of farm depicted)

A a result, the banks of the Alexauken are severly eroding – compare the below eroded stretch of the stream to the forested buffers in top photo:

stream bank erosion caused by poor land use and poor land management

Here’s what the Alexauken looks like after intense rainfall (location of this photo is just upstream of the cattle shot, across the same farmer’s land):

Alexauken floods farmer's land

Here is the Alexauken, flooding just downstream of this farm – flood waters wash out road and threaten bridge, imposing millions of dollars of costs on taxpayers to replace them:

Alexauken flooding threatens to wash out road and bridge

Here’s where the Alexauken meets the Delaware inLambertville (after a small morning rain) – these tributaries make flooding far worse in Lambertville and Trenton:

Alexauken near D&R Canal and Delaware River just north of Lambertville

If one looks closely at the pictures of the cattle in the stream, one will note the footings of a major power transmission line. Note how the stream bank is eroding, thus jeopardizing the structural integrity of the power transmission line. Does PSEG care about land management threat to it’s power lines?

poorly managed land, grazing cattle in stream cause erosion that threatens power transmission tower

So, if State regulators at DEP don’t give a damn about protecting water quality and reducing flooding risks, maybe the BPU or PSEG will step in. If I recall, a tree fell on a power line in Ohio and that resulted in a blackout in the entire northeast. What would hapen if this transmission tower were to fall? If anyone even mentioned doing such a thing, I’m sure the Homeland Security folks would view it as a “eco-terrorism” concern. Maybe we ought to consider poor land management and soil erosion as a form of domestic terrorism – they are doing far more harm than alleged terrorists.

West Amwell Ordinance prohibits soil disturbance or destruction of vegetation in buffer

Grazing cattle in a C1 stream and PSEG practices of clear cutting vegetation in the protected stream buffer are unacceptable land management practices. We will bring this matter to the attention of all agencies with regulatory jurisdiction and an ability to stop it: DEP; Hunterdon County Soil Conservation District; State Agriculture Department; BPU; and West Amwell Township.

We’ll let you know about what we hear - but don’t hold your breath waiting for enforcement.

Hal Bozarth (L) & Tony Russo (R) lobbyists for chemical industry sign in at DEP today

I got a tip and was able to catch lobbyists for the chemical industry in the act. They met privately today with DEP Commissioner Mark Mauriello. The meeting was to discuss, among other things, appointments to a controversial new DEP Science Advisory Board (SAB).

DEP Commissioner Mark Mauriello

It is precisely these kind of off the record private lobbying meetings between DEP and regulated industry and developers that illustrate the need for more transparency at DEP.  We recently petitioned DEP to force public disclosure of these kinds of private meetings. That petition is currently before Commissioner Mauriello, who must make a decision shortly.

At the federal level, the Obama administration has emphasized greater transparency in government. In response, EPA Administrator  Lisa Jackson posts daily schedules of EPA managers on the EPA website, something Jackson explicitly rejected while NJ DEP Commissioner.

Yesterday, we filed a lawsuit seeking access to exactly these kinds of records that show chemical industry political intervention at DEP. 

The chemical industry is pressuring Mauriello to appoint the following industry scientists to the SAB:

Anne Masse – employed by Dupont 

John Gannon – also w/Dupont at Wilmington, De. plant

Joseph West – Merck Research Laboratories, Rahway NJ

Daniel Caldwell – Stout and Caldwell  Engineers and South Jersey Development Council

Public business done Behind Closed Doors - DEP Commissioner's Suite

DEP is an administrative agency that is required by law to make open and transparent decisions based on law, science, and the public interest, not politics in back room deals with lobbyists for special interests.

Chemical industry political lobbying has no place in the DEP decision-making process, and must be restricted. Current Election Law Enforcement Commission (ELEC) laws already mandate reporting of these kind of lobbying attempts ”to influence government processes“.

But far stronger restrictions are required. Forcing public disclosure is a good first step in that process of minimizing the corrosive effects of special interests on DEP.

Lobbyists should be limited to these buildings:

Statehouse, Trenton, NJ

Legislative Annex, Trenton, NJ

We have been writing about behind the scenes efforts of politically powerful  polluters to exert improper influence on DEP scientists. We have called this the War on Science.

Dupont Chambers Works plant in Deepwater NJ is one of the worlds largest polluters. The plant manufactures PFOA & polluted groundwater with PFOA

Today we focus on the ugly tactics of Dupont.

But, first we put Dupont’s moves in context, and then present the game plan Dupont is following, via review of a superb new book by a scientific expert in the field.

We have documented an extremely troubling recent series of events that illustrate this war:

• DEP’s Chief Nuclear Engineer was demoted and transferred out of the nuclear safety program in retaliation for private remarks he made that questioned the nuclear industry’s influence on the Nuclear Regulatory Commission during the relicensing hearings on the Oyster Creek plant, one of the nation’s oldest and riskiest plants;
• A PFOA health risk assessment paper prepared by DEP scientists was “pulled from submission for publication” under orders from then DEP Commissioner Jackson;
• DEP Commissioner Jackson abolished the Division of Science and Research and used a bogus pretext to create a new external and potentially industry controlled Science Advisory Board. This move destroyed the independence of DEP science and a more than 20 years old effective scientific review process at DEP;
• The former Division of Science and Research Director, a woman with a PhD and 15 years of experience, was transferred to an administrative job in retaliation for defending scientific integrity;
• DEP issued a gag order in retaliation for DEP scientists’ release of a controversial Jersey City chromium health risk assessment. The new risk assessment concluded that chromium is a carcinogen and that current DEP standards are more than 200 times laxer than these new findings indicate are needed to protect public health. The gag order authorized DEP managers to hold completed scientific work in un-releasable draft form for an indefinite period; to restrict public disclosure under OPRA; and for intervention by political and DEP press office by allowing non scientists to conduct prepublication reviews of any controversial scientific reports;
•  We disclosed documents that revealed that DEP scientists had to run a political gauntlet to publish a risk assessment on a chemical that has spread to contaminate drinking water. The controversy concerned perfluorooctanoic acid (PFOA), a toxic chemical manufactured by a NJ giant Dupont, used in nonstick cookware and stain resistant fabrics, such as “Scotchgard”.Those documents showed that DuPont was urgently pressing DEP regulators to lower a potentially multi-billion dollar clean-up liability for polluting groundwater. 
• In a hostile move, lawyers representing DuPont filed several  OPRA requests that personally targeted and intimidated the DEP scientists conducting the PFOA research. 
• Dupont was granted a highly unusual opportunity: on August 7, 2009,Dr. Robert Tardiff of the Sapphire Group, which is advising DuPont, presented his PFOA risk assessment to members of the NJ Drinking Water Quality Institute. That same week, Tardiff privately met behind closed doors with DEP scientists and regulators;
• Facing a lawsuit, DEP was forced to released documents outlining how a health study of air pollution in Camden neighborhoods was re-written to allay industry objections. The released e-mails depict a clubby, closed door climate in which the state regulators seek to assuage industry concerns even while keeping the affected community in the dark; 
• An audit by the U.S. Environmental Protection Agency faulted the quality and consistency of New Jersey science, quality assurance/quality control (QA/QC) and technical programs for cleaning up toxic wastes, preserving wetlands and other key functions.

Scientific tactics in this war are laid out in detail in a wonderful new book by science professor David Michaels titled “Doubt is their Product – How Industry’s Assault on Science Threatens Your Health”. Michaels is a professor at George Washington University, former Assistant Secretary for Environmental Safety and Health at the Department of Energy; and is now candidate for Administrator of the US Occupational Safety and Health Administration (OSHA).  

Michaels exhaustively documents how industry – starting with the tobacco, lead, and asbestos industries, whose tactics were embraced by the chemical industry – has “manufactured doubt” to frustrate regulation, and as a result, killed and poisoned thousands of Americans.  Using outright lies, denial, PR and then shifting to sophisticated “sound science”, industry is literally killing us.

Dr. Tardiff’s August 7, 2009 presentation of to the NJ Drinking Water Quality Institute scientists. Tardiff presented his own PFOA risk assessment to challenge the DEP risk assessment findings.

In my favorite chapter, “The Enronization of Science”, Michaels describes step by step exactly how a “classic uncertainty campaign” is conducted – I’ve seen it all at work here in NJ:

• paid industry scientist attack government regulation and conduct dubious “research” to manufacture doubt and uncertainty in order to delay and forego regulation;
• public relations groups mount PR and media campaigns to spin this science and mislead the American public;
• highly paid legions of lawyers (“the products defense industry”) are called into action to litigate and intervene to frustrate regulation;
• consulting firms, industry front groups, trade associations, and think tanks are formed to promote the industry’s economic interests and create an echo chamber for bogus scientific claims;
• Lobbyists work Congress and the Whitehouse to pressure regulators and thwart regulation

Michaels concludes with an urgent warning and appeal to scientists to wake up to what is going on and speak out to the American public:

“Industry has learned that debating the science is much easier and more effective than debating the policy. Take global warming for example. The vast majority of climate scientists believe that there is adequate evidence of global warming to justify immediate intervention to reduce the human contribution. They understand that waiting for absolute certainty  is far riskier – and potentially far more expensive  – than acting responsibly now to control the causes of climate change. Opponents of action, led by the fossil fuels industry, delayed this policy debate by challenging the science with a classic uncertainty campaign. I need only cite a cynical memo that Republican political consultant Frank Luntz delivered to his clients in early 2003. In “Winning the Global Warming Debate”, Luntz wrote the following:

“Voters believe that there is no consensus   about global warming within the scientific community. Should the public come to believe that the scientific issues are settled, their views about global warming will change accordingly. Therefore, you need to continue to make the lack of scientific certainty a primary issue in the debate…The scientific debate is closing [against us] but not yet closed. There is still a window of opportunity to challenge the science” (emphasis in original)….  […]

Polluters and manufacturers of dangerous products tout “sound science”, but what they are promoting just sounds like science but isn’t. Only the truly naïve (if there are any of these folks left) will be surprised to learn that the sound science movement was the brainchild of Big Tobacco… George Orwell has given us a word fr such rhetoric. The vilification of any research that might threaten corporate interests as “junk science” and the sanctification of its own bought and paid for research as “sound science” is indeed Orwellian….

… The scientific enterprise is at a crossroads.  We need to understand what is going on in the name of “sound science” and what the consequences may be – and already have been – for public health.  At its heart, this book is about the way in which product defense consultants have shaped and skewed the scientific literature, manufactured and magnified scientific uncertainty, an influenced policy decisions to the advantage of polluters. (emphases supplied)

In addition to the ugly attacks on DEP scientists by Dupont lawyers mentioned above, Dupont is engaged in a classic uncertainty campaign and war on science that so concerns professor Michaels.  

I attended Dupont consultant Dr. Tardiff’s August 7, 2009 presentation of to the NJ Drinking Water Quality Institute scientists. Tardiff presented his own PFOA risk assessment to challenge the DEP risk assessment findings. Tardiff followed classic “manufacture doubt” tactics by challenging the validity of the animal studies that show that PFOA is a human carcinogen. Yet despite this over the top attack, not one DWQI scientist publicly challenged Tardiff’s misleading and radical conclusions. Clearly, they were intimidated and reluctant to call Tardiff out.

A single one of the above actions would be a problem.

Taken together they are deeply disturbing.

We’ll keep you posted. 

In our next post, we will name names of industry scientists - including Dupont employees – that the chemical industry is pushing to control the new DEP Science Advisory Board.

[Update: Star Ledger covers this story:  N.J. environment group claims DEP denial of records request violated state law ]

We recently warned of a Hostile Takeover of DEP Science – Industry Seeks to Stack Board with Cronies , the latest in an orchestrated War on Science by politically powerful polluters and developers in NJ. The Star Ledger reported on that in a September 20, 2009 story:  Scientists line up to join DEP’s controversial new advisory panel.

Since then, we received additional leaked DEP documents and emails which show that the NJ Chemistry Council (the trade group and lobbyist for NJ’s chemical industries) is seeking to have Dupont and Merck scientists appointed members of a controversial new DEP Science Advisory Board. Similar industry efforts to stack federal Science Advisory Boards during the Bush administration were repudiated by scientists. A Science magazine editorial “Advice without Dissent” hit the nail on the head:

The Bush administration has made some unwise recent moves that undermine the process by which scientists provide advice to the U.S. government. The applicable current law (the Federal Advisory Committee Act), which requires these advisory bodies to “. . . be fairly balanced in terms of the points of view represented and . . . not be inappropriately influenced by the appointing authority or by any special interest,” is more than empty boilerplate….

Instead of grappling with scientific ambiguity and shaping public policy using the best available evidence (the fundamental principle underlying public health and environmental regulation), we can now expect these committees to emphasize the uncertainties of health and environmental risks, supporting the administration’s antiregulatory views. And in those areas where there are deeply held conflicts in values, we can expect only silence. Regulatory paralysis appears to be the goal here, rather than the application of honest balanced science.

In fact, DEP Commissioner Mark Mauriello is meeting with the Chemistry Council this Thursday  to discus SAB appointments. Commissioner Mauriello, in contrast to federal law that mandates balance and prohibits inappropriate influence by special interests,  has virtually unbounded discretion to appoint SAB members.

So, with some of the documents already in hand, I filed an OPRA request to obtain all of them. But in an attempt to keep this chemical industry campaign a covert war, DEP denied the OPRA request.

In response, today, PEER filed a lawsuit against DEP seeking all the documents. We are confident that we will prevail in this lawsuit and that the documents will disclose industry pressure to politicize science at DEP and protect polluters from DEP regulations.

This industry effort must be derailed. Formal industry control over DEP science would have profoundly detrimental impacts on the health of residents and the natural environment.

See below press release for details. 

For Immediate Release:  Monday, September 28, 2009

Contact:  Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337

 Industry Moves to Take Over Jersey Eco-Science Board

DEP Sued to Force Release of Lobbying Messages for Industry-Backed Scientists    

Trenton — Industry wants to pack a new state environmental Science Advisory Board with its own scientists, according to Public Employees for Environmental Responsibility (PEER) which today filed a lawsuit to obtain public records regarding the industry lobbing effort.  Department of Environmental Protection (DEP) Commissioner Mark Mauriello is reportedly making final picks for the 12-member board this week after meeting with the Chemistry Industry Council this Thursday.

 The suit challenges the denial by DEP of an Open Public Records Act (OPRA) request filed by PEER seeking public records related to industry nominees and political lobbying for the Science Advisory Board (SAB) appointments.  The DEP broadly claimed that practically all the requested documents are exempt from OPRA on the grounds that the pending appointments will be treated like candidates for employment, and thus confidential.  Board members, however, are not DEP employees, nor would they be paid.

“DEP cannot make public records secret on the basis of an analogy,” stated New Jersey PEER Director Bill Wolfe who filed the document request.  “Industry has a huge stake in getting friendly scientists on the board that will make the final recommendation on public health regulation.”

In late 2008, former DEP Commissioner Lisa Jackson abolished the Division of Science and Research, based in part on a recommendation of her Permit Efficiency Task Force, chaired by Chris Daggett, now an independent candidate for Governor.  The Science Advisory Board is supposed to substitute for the work formerly done by DEP scientists. 

Thus far, more than 100 nominations have been submitted.  Industry associations have put forward scientists from major manufacturers such as DuPont and Merck as well as from engineers and technical specialists from industry-oriented consultant firms.  This Thursday, October 1^st, Commissioner Mauriello, who chooses the board members, will meet behind closed doors with the Chemistry Industry Council of New Jersey, the primary lobby group representing state-based manufacturers.   

 In recent months, DEP scientific studies have been the subject of intense industry lobbying pressure to amend or suppress, on public health topics ranging from the effects of chemicals, such as PFOAs made by DuPont, to cement dust blowing through Camden neighborhoods.  The Administrative Order creating the SAB specifies a conflict of interest review of board nominees but it is not clear what specific rules will be applied, except that members are not supposed to act on matters in which they have a “financial or personal interest” – terms left undefined.

 “It appears that industry will soon be providing the final edits on all scientific work done at DEP,” added Wolfe.  “Without transparency in the selection process, there will always be the doubt that this board will more concerned with political science than environmental science.”

The OPRA lawsuit was filed today on behalf of PEER by Michael Pisauro of the Princeton-based firm of  Frascella & Pisauro, LLC.

 ### 

 Read the PEER lawsuit

 View DEP denial of record release under OPRA

 Review the Science Advisory Board charter

http://www.state.nj.us/dep/sab/

Look at the ongoing war by industry against DEP science

Examine the tactics of DuPont

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

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)

[10/4/09 Update - Brian Murray of the Star Ledger picked up on the pine snake story today: Frustrated developers are hissing back at a snake 

A colleague advised that the NJ Builders Association recently filed a petition for rulemaking urging DEP to delist pine snake and eliminate certain site specific regulatory protections for its habitat. 

This reminded me of the sorry tale of loss of DEP protections for the wood turtle - and countless other species.  Old news. 

Earth Day, 2007 - environmentalist applaud DEP rollbacks

In fact, you might have  just the opposite impression, because the rule proposal that abandoned protections for the wood turtle - and countless other species – was SUPPORTED by environmental groups. It received VERY FAVORABLE press coverage.

This occurred, despite a January 2007 warning letter signed by numerous groups, strongly urging DEP Commissioner NOT to make the regulatory change.

Dear Commissioner Jackson:

In a late December meeting attended by many of our groups, the Department outlined its plan for a new process to guide the designation of Category One waterways. The meeting afforded only a cursory overview of what would represent a very fundamental change to clean water protections in New Jersey, but did provide an outline of the narrow set of water quality indicators that might serve as the basis for deciding future C1 upgrades. We have serious objections to the proposed designation process and fear that its implementation would strip New Jersey of the ability to adequately protect and maintain its high quality waterways. If enacted, this method would reverse tremendous advances in clean water protection in the state, contradict the commitments made by Governor Corzine, and leave New Jersey without the ability to adequately protect and maintain many of its most deserving waterways.

Signed: Jeff Tittel, Sierra Club, NJEF, ANJEC, Environment NJ, et al

Say What? Here’s that sad tale:

 According to DEP:

Wood turtles are semi-aquatic turtles preferring clear, well-oxygenated streams

surrounded by a mosaic of woodlands, scrub-shrub/herbaceous wetlands, and

successional meadows. In New Jersey, the wood turtle is commonly associated with

water-quality sensitive fish such as native brook trout and brown trout. While once

ubiquitous throughout northern New Jersey, most of the viable wood turtle populations

remain in rural portions of Sussex and Warren counties. Degraded water quality,

habitat fragmentation, road mortality, and predation are the primary factors behind its

extirpation from developed portions of the State. Observational evidence from the

Passaic River suggests that siltation of streams, as a result of stormwater discharge

and urbanization of the surrounding land, can lead to a decline in turtle populations.

 In order to protect the wood turtle and its critical habitat – as well as habitat for numerous aquatic or aquatic dependent species – in 2002, DEP strengthened and greatly expanded water quality regulations – known as “Category One” (C1) waters – to implement the ”antidegradation policy” mandated by the federal Clean Water Act. Federal law requires states to adopt antidegradation policies and implementation procedures. 

Anti-degradation policy seeks to assure that exceptional high quality waters are not degraded by pollution. For the first time, using anti-degradation legal tools, DEP gave these exceptional waters real regulatory protections, by providing 300 foot wide stream buffers (on each side), where soil and vegetation may not be disturbed by major development.

Starting in early 2002, DEP began to classify C1 streams and rivers based upon ”exceptional value” ecosystems. DEP also began designating streams and rivers that drained to reservoirs to protect water supply.

Previously, this C1 classification was limited to a few hundred stream miles that supported naturally reproducing trout populations.

Yet, even despite the C1 designation, historically, those streams were unprotected by DEP regulations. 

The result of the new DEP C1 policy was a huge expansion of over 2,000 designated C1 stream miles and – at 75 acres of stream buffer per mile – thousands of acres of riparian land in new protected C1 stream corridors.  

These DEP regulatory moves were strongly opposed by the NJ Builders Association, pro-development industries, and property owners. Builders particularly opposed the new DEP policy of linking water quality and habitat, and using the “exceptional ecological significance” Clean Water Act policy tool to regulate development and land use to protect water quality.

The wood turtle became a poster child in this debate, because thousands of acres of land were classified as wood turtle critical habitat. Therefore, thousands of acres of such land located in stream corridors could be regulated and made off limits for development via DEP designation of C1 waters. 

One key factor in determining “exceptional ecological significance”, was the presence of wood turtle or critical habitat. According to DEP’s new C1 designation methodology:

The stream’s ability to support water-dependent endangered and threatened species, such

as bog turtle, wood turtle, long-tailed salamander and dwarf wedgemussel was a significant

factor in determining whether a stream qualifies as a waterbody of “exceptional ecological

significance”. (link here)

Between 2002-2003, the following exceptional streams were designated C1 protected on the basis of the presence of wood turtles and/or critical habitat – each designation protected lands in stream buffers. These regulatory moves by DEP triggered major battles with the builders because they blocked large development projects:

In November 18, 2002: Assiscunk Creek; Beaver Brook; Flat Brook; Sidney Brook;   South Branch Rockaway Creek; 

In January 6, 2003: Paulins Kill; 

In November 3, 2003: Harihokake Creek; Nishisakawick Creek; Pohatcong Creek; Wickecheoke Creek; Plum Brook;

Under the new pro-economic development Corzine/Jackson DEP, the legal ability of DEP to designate C1 streams on the basis of wood turtle - and numerous other threatened and endangered species – was lost by DEP in a May 21, 2007 rule proposal where DEP revised the C1 designation methodology. The revisions greatly narrowed DEP’s ability to designate C1 waters and eliminated wood turtle as a basis for doing so.

The Lisa Jackson DEP found that a new method was required as a result of “experience” – read the code for “due to strong oppostion by the powerful development community“:

Based upon the experience gained in the review and analysis of waterbodies for potential Category One designation, the Department is proposing to establish new definitions. These new definitions better define the data and criteria utilized to identify waterbodies that qualify for consideration for upgrade to Category One designation. These definitions are data driven and will better serve to identify waters that are truly exceptional. The Department is proposing amendments to the definition of “category one waters” and introducing new definitions for “Exceptional Ecological Significance”, “Exceptional Fisheries Resource(s)”, “Exceptional Water Supply Significance”, and “HUC 14”. (link) 

 

The new DEP C1 designation method limited exceptional ecological value to a short list of specific species – if sa species was not lsited, it was not protected. The list did NOT include wood turtle.

Exceptional Ecological Significance – Endangered or Threatened Species (E&T) 

 

The Department is now proposing that a waterbody with the presence of suitable habitat verified by the Department to support Bog Turtle, Dwarf Wedgemussel, Brook Floater, Triangle Floater, Green Floater, Eastern Pondmussel, or Eastern Lampmussel, with a documented occurrence(s) of at least one of these species verified by the Department are eligible for consideration for Category One antidegradation designation upgrade. To qualify for consideration for Category One status as a waterbody of exceptional ecological significance, requires that the waterbody have suitable habitat verified by the Department to support on of these aquatic dependent E&T species and documented occurrence(s) verified by the Department. These species include several freshwater mussels and Bog Turtle. …

For a detailed description of each species and its habitat see: http://www.nj.gov/dep/fgw/ensphome.htm. 

 

For the wood turtle, the fight for riparian habitat protections is over – DEP unilaterally surrendered.

The only protections remaining are case by case, site specific  mitigation in individual land use permits – a formula for extirpation.

End of story.

A huge shot was fired today in what has been a dirty and expanding covert war on science at DEP - today’s Star Ledger reports:

 Scientists line up to join DEP’s controversial new advisory panel (click for complete story)

Sunday, September 20, 2009

More than 100 scientists have applied to join the Science Advisory Board, a panel being created by the state Department of Environmental Protection to provide expert opinions on several environmental questions. ….

Faced with ongoing budget cuts and staff reductions, [DEP Commissioner] Mauriello contends the advisory board is a natural fit for lean times. …But critics claim the board will be a tool for pro-development and industry forces that want to roll back tough pollution standards and circumvent the DEP’s own scientific staff.

DEP Commissioner, Mark Mauriello

“This thing was created because the science and research people inside the DEP are perceived at top levels as out of control because they did not let politics and the wishes of the administration get in their way of recommending such things as a tougher chromium clean-up standard in Jersey City,” said Bill Wolfe of Public Employees for Environmental Responsibility, or PEER…. 

“For 20 years this has been the goal of business and industry: to dismantle the DEP’s Division of Science and the extensive research they have done to protect the public health and environment from developers and polluters,” said Jeff Tittel of the Sierra Club.

Behind the scenes, powerful chemical and pharmaceutical lobbyists are aggressively pushing for their own industry scientists to take over control of environmental and public health science at DEP.  This move mirrors a discredited tactic of the Bush Administration, to stack EPA and FDA Science Advisory Boards with industry flacks to promote industry’s economic interest over the best science and public health protection. 

There are direct consequences to protections we now enjoy, because independent science is required to establish those protections and to monitor and enforce them. Questions of science and regulatory policy are inextricably linked. Every day, DEP makes decisions based on scientific standards and protocols, from managing fish and wildlife, wetlands and endangered species protections, enforcing air and water pollution permits, to warning residents about contaminated unsafe drinking water. Science and technical issues can not be isolated from policy and implementation of programs legally put in place to protect the public and regulate harmful actions of  industry. Yet, DEP Commissioner Maurielleo misleads the public by pretending that they are:

Mauriello said he tried to defuse such suspicions through the wording of the May directive he issued to create the board. The work of the panel, according to the directive, would be “limited to specific scientific and technical issues” that the commissioner pitches its way, “not policy or regulatory matters.” Mauriello also said the board will report to the DEP’s staff of scientists, who are helping to select its membership.

Mauriello’s May 2009 Order is riddled with loopholes, but does mention the need to limit scientific bias, but falls far short of a absolute ban on conflicts of interest. This failure invites and opens the door to industry control.

Hal Bozarth, Chemistry Council lobbyist is pushing industry flacks.

To provide a sense of just how dirty the covert science war has become, consider the fact that the NJ Chemistry Council is pushing employees of Dupont and Merck pharmaceuticals, some of the largest toxic polluters in NJ. How convenient to have a Dupont employee in control of the scientific health risk assessment of PFOA, a toxic chemical that is manufactured by his employer, Dupont. Risk assessments form the basis of regulations. Control the science and you control the regulations. These industry scientists are NOT independent, they have scientific biases and economic conflicts of interest. They MUST be excluded. Yet again, DEP Commissioner Mauriello misleads the public by saying:

“I respect the fears of the environmentalists,” Mauriello said. “But it can only be a good thing to have an independent group of scientists to look at what we do. The days of thinking we don’t need outside assistance are over.” 

In order to reveal this covert war to the public, I filed an Open Public Records Act (OPRA) request . It was denied by DEP. DEP is protecting the chemical industry, NJ Builders Association and Business and Industry Association who are working behind the scenes. DEP is trying hard to keep the public from even knowing about this important debate. It is not just industry that won’t release the names of individual scientists – DEP won’t even reveal documents that show the existence  behind the scenes industry lobbying! This DEP secrecy is especially troubling, because the industry’s agenda is made clear:    

At least 2 Dupont employed scientists are being considered by DEP Commissioner Mauriello for appointment to the Science Advisory Board

Business and industry advocates have long wanted an advisory panel, although one with more official power to alter regulations. They have endorsed some candidates for the new board but have not released names.

“Too often the New Jersey Department of Environment Protection has set standards which have not been reflective of scientifically, peer-reviewed studies, said Hal Bozarth, executive director of the Chemistry Council of New Jersey. “This has led to the cost of compliance for New Jersey’s manufacturers to become far higher than in other states, Likewise, remediation of sites is far more expensive and often more time-consuming than in other states, while providing little or no extra protection. Therefore, a scientific advisory board comprised of scientific experts will provide many benefits to New Jersey in how it deals with its environmental issues.”  

Former DEP Commissioner Lisa Jackson caved to political pressure and abolshed DEP's Division of Science and Research, and promoted a private Science Advisory Board.

I was pleased to read that the Star Ledger identified former DEP Commisioner Lisa Jackson as the person responsible for this sell out of scientific integrity to political pressure by powerful polluters. According to the Star Ledger: 

Mauriello’s directive came five months after the DEP reorganized its Division of Science, Research and Technology into an Office of Science under a director of policy and planning. That change was put in place by DEP commissioner Lisa Jackson before she left in November to head the federal Environmental Protection Agency.     

Dave Brogan, NJBIA lobbyists, misleads the public about DEP science and regulatory practices

But even though this story has been smoked out in the media, the  industry lobbyists and hacks continue to lie. David Brogan, an NJBIA lobbyist KNOWS that DEP considers a broad array of scientific sources – not just in house DEP scientists – and that DEP routinely conducts external peer review of scientific research sponsored or conducted by DEP. Yet he lies nonetheless:

 “David Brogan of the New Jersey Business and Industry Association said it is time the DEP heard from scientists outside a state laboratory. …

But even in an advisory capacity, the new board will offer “cutting-edge” information that may otherwise not be available to the state or public, said Elizabeth George-Cheniara of the New Jersey Builders Association,

The only thing “cutting edge” these industry flacks will offer is the company line – which of course – “is not otherwise available to the public“!

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.