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DEP Scientists Quietly Classify Groundwater Conditions as “Extremely Dry”

Where Are DEP Mandatory Water Use Restrictions & Conservation Measures?

[Update #2 – Imagine that, the groundwater conditions just happen to be improving, and DEP’s latest Aug 5 assessment goes out of tis way to show arrows pointing that out (something I don’t recall ever seeing)

I think I’ll file OPRA’s to get the underlying data and analysis supporting these assessments – Isn’t my skepticism of these “coincidental” improvements an indicator of DEP’s loss of scientific credibility? That’s what happens when you fudge the data analysis. end update#2]

Update: most recent July 29 DEP assessment – more regions of the state with severe dry stream flow and groundwater conditions – southwestern NJ “improves” somewhat. I would love to see the technical explanation for that – I suspect manipulation in response to the original post.  New assessments should be posted on Monday August 6.  end update]

DEP scientists recently classified groundwater conditions in southwestern NJ as “extremely dry” the equivalent of a drought “emergency” for areas reliant on groundwater (see green area in map above for impacted area).

I have some question for DEP based on that science – 8 specific questions.

1. Are residents in Mercer, Burlington, Camden, Cumberland, Gloucester and Salem Counties aware of that serious problem?

2. Why is drought status “normal” if groundwater conditions are “extremely dry”? (and rainfall and stream flow are well below normal too).

3. Have mandatory water use restrictions and water conservation measures been imposed for businesses and homes that use groundwater? If not, why not?

Or will people find out only after wells start to run dry?

4. Has DEP completely abdicated its responsibilities to plan for water supplies and to take the lead in drought management, as mandated by the NJ Water Supply Management Act? That law mandates:

The department shall prepare and adopt the New Jersey Statewide Water Supply Plan, which plan shall be revised and updated at least once every five years.

[Note: If case DEP forgot or needs guidance, see this:

NJSA 58:lA-2. Legislative findings and declarations.

The Legislature finds and declares that the water resources of the State are public assets ofthe State held in trust for its citizens and are essential to the health, safety, economic welfare, recreational and aesthetic enjoyment, and general welfare, of the people of New Jersey; that ownership ofthese assets is in the State as trustee ofthe people; that because some areas within the State do not have enough water to meet their current needs and provide an adequate margin of safety, the water resources of the State and any water brought into the State must be planned for and managed as a common resource from which the requirements ofthe several regions and localities in the State shall be met; that the present regulatory system for these water resources is ineffective and counterproductive; that it is necessary to insure that within each basin there exist adequate water supplies to accommodate present and future needs; that to ensure an adequate supply and quality of water for citizens of the State, both present and future, and to protect the natural environment of the waterways of the State, it is necessary that the State, through its Department of Environmental Protection, have the power to manage the water supply by adopting a uniform water diversion permit system and fee schedule, a monitoring, inspection and enforcement program, a program to study and manage the State’s water resources and plan for emergencies and future water needs, and regulations to manage the waters of the State during water supply and water quality emergencies. 

5. Or has DEP privatized those responsibilities and functions, allowing private water companies to take charge, as in the recent Monmouth County disaster and water emergency caused by a major pipeline break?

6. Or has DEP delegated those responsibilities to local and county government – or outsourced them to corporate dominated private “sustainability” cover groups –  as they did in the Monmouth emergency? (see DEP website for the highly unusual reliance on County government and private water company). Does DEP think posting a county press release on the DEP website satisfies their responsibility under the Act?

July 1, 2012	State of Emergency Still in Effect in Monmouth County; Strict water conservation measures remain in effect; Boil water advisory reduced to 4 towns; all outdoor use banned (Monmouth County Press Release)
June 30, 2012	State of Emergency Still in Effect for Monmouth County; Strict Water Conservation Measures Remain Saturday; Boil Water Advisory Reduced to 22 Towns; All Outdoor Use Banned (Monmouth County Press Release)
June 29, 2012	State of Emergency Declared in Monmouth County; Strict Water Conservation Measures Put in Place; All Outdoor Use Banned; Boil Water Advisory Expands to Entire County (Monmouth County Press Release)

7. Where is the long overdue update to the Statewide Water Supply Master Plan? Why has DEP scrubbed its website regarding the prior plan? (which used to have these links:

WATER SUPPLY PLANNING
New Jersey Statewide Water Supply Plan (Pdf Format) Planning document for water supply	August 1996
New Jersey Statewide Water Supply Plan Appendices (Pdf  Format) Planning document for water supply	August 1996
New Jersey Statewide Water Supply Plan Executive Summary (Pdf Format) Planning document for water supply	August 1996
New Jersey Statewide Water Supply Plan Map

That Plan would address these critical issues.

8. Where is the press corps, especially as we experience extreme weather record heat waves and drought conditions? Who will tell the people?

[Note: here are DEP powers and responsibilities:

Dupont Partial Lake Cleanup Plan Uses Flawed Science to Minimize Problem

Florio Lets Liability Cat Out of the Bag

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

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

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

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

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

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

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

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

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

Dupont wiped out an entire fishery.

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

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

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

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

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

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

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

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

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

I)  Florio Lets the Liability Cat Out of the Bag

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

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

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

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

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

Practically, what this legalese essentially means is that:

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

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

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

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

Dupont could not get away with that under Superfund.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here are additional serious flaws in Dupont’s analysis:

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

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

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

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

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

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

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

8) There was no valid characterization of “mercury background”.

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

[ According to NJ DEP Ecological Evaluation Guidance:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Senate Environment Committee will meet tomorrow (Monday 6/20/11) to hear the Senate version of a bill to reverse Governor Christie’s plans to withdraw from RGGI (see:  S 2946)

The Senate hearing provides another opportunity for Legislators to show that they are serious about global warming, and not just playing political games.

It is simply astounding that Republicans voted “No” on party lines last week in the Assembly Environment Committee vote on A4108.

Obviously, Assemblywoman Coyle’s well heeled and highly educated Somerset County constituents know global warming is real and demand real solution, not political games.

And we’re sure that they are willing to pay far more than 28 cents per month on their electric bill (the current RGGI charge) to be part of the solution to the world’s climate change crisis.

It also gives Republicans another chance to move beyond pure unprincipled partisan loyalty to Governor Christie, and show that they see global warming as more than a political football.

So we will be closely watching how Republican members Beck and Bateman vote.

And I’m not convinced yet the Democratic Chairman Bob Smith is serious in reforming the RGGI program – ironic in that Senate President Sweeney was the sponsor of the original RGGI legislation that Governor Christie has abandoned (for RGGI’s legislative history, see this and this and this and this).

So, here are 9 specific amendments that should be considered and will serve as a test of whether this Committee is serious:

Dear Chairman Smith:

Please accept this email testimony on S2946. I am providing suggested amendments in advance of the hearing, so that there is sufficient time for consideration and for OLS to draft amendments.

While I opposed RGGI from the outset, given the failure of national global warming legislation and the fact that RGGI states’ recently wrote to EPA to support using RGGI to satisfy compliance with forthcoming EPA New Source Performance Standards for greenhouse gas emissions for existing sources under Section 111(d) of the Clean Air Act, I support the objectives of the bill to assure that NJ remains involved in RGGI.

[Note: EPA projects that the upcoming new Clean Air Act “New Source Performance Standards” (NSPS) regulations on greenhouse gas emissions from existing coal power plants will reduce current emission by at least 10%. But RGGI would allow those emissions to increase by 10 – 30%. So if EPA adopts the state recommendations and allows RGGI to satisfy NSPS compliance, we are talking about 20 – 40% increase in emissions from coal power plants. That is HUGE. I doubt most NJ legislators are even aware of how EPA and State actions are related.]

However, passing a bill to merely retain RGGI in its current form would be an empty gesture. RGGI must be reformed in light of 6 years experience and the forthcoming new EPA NSPS rules.

Therefore, I strongly urge you to adopt amendments to clarify and strengthen RGGI’s original objectives.

Given the Governor’s withdrawal statement and DEP’s testimony before Chairman Chivukula’s Committee, it is a virtual certainty that the Governor will veto this bill.

Therefore, it is even more important that you pass a bill that eliminates political considerations and strictly adheres to sound policy and science.

As you know, the RGGI caps are far above current electric sector emissions. When the original RGGI MOU was signed in 2005, NJ’s RGGI caps were 10% above then current emissions.

DEP testified to Chairman Chivukula’s Cmte. last week that the cap is 30% above current emissions.

The Governor has used this fact to claim – correctly – that RGGI is ineffective in terms of changing behavior of energy producers and consumers. PSEG themselves described the affect of RGGI as “negligible” (see page 59) 

Environmentalists (i.e. NRDC and Environment NJ) testified that RGGI originally was designed to undergo an internal performance review scheduled for 2012. The expectation all along is that the generous caps would be renegotiated and lowered.

However, given the Administration’s opposition to RGGI, it would be foolish to think – even if the bill were to pass and NJ remain a part of RGGI – that the caps would be lowered via the RGGI administrative negotiating process among State Governors.

Outside intervention and legislative policy direction are required.

With that in mind, I recommend the following amendments.

1. Legislatively reduce the RGGI cap in statute to current 2010 emissions, or the most recent actual emissions monitoring data. This would lock in any emissions reductions that have been achieved and assure that emissions do not increase.

2. Eliminate the discretionary use of “up to 100%” of revenues derived form RGGI auctions and mandate that 100% be used for the legislatively specified purposes. This would be consistent with your announced intent to Constitutionally dedicate the RGGI proceeds.

3. Delete reference to and required consistency with “the terms of the Memorandum of Understanding signed by NJ and other states on December 20, 2005.” This would be consistent with legislatiely establishing policy and lowering the NJ emission allowances (cap).

4. Insert the year “2008” to clarify that the Corzine Energy Master Plan goals and principles are to be considered, not the proposed changes by Governor Christie.

5. Delete the subsidies, exemptions and loopholes of the original RGGI legislation provides to a cogeneration facility, combined heat and power, and any other “on-site generation facility”.

6. Mandate that all RGGI records shall be public records and subject to the Open Public Records Act.

7. Mandate that DEP adopt the January 20, 2009 proposed greenhouse gas emissions monitoring and reporting rule that was killed by Governor Christie’s Executive Order moratorium (see: http://www.nj.gov/dep/rules/proposals/012009a.pdf

This will provide actual NJ data to base decisions on, not projections based on federal emissions factors and fuel use estimates.

8. Eliminate the $7 per ton relief valve. If we are going to have a market based trading scheme, prices should be determined by supply and demand and the market.

9. Eliminate the $2 per ton price cap for certain emission sources.Market assumptions require a level playing field between all sources.

Let me know if you’d like these proposed amendments formatted to the provisions of the current bill. I’d be glad to go over this with OLS staff.

Thank you for your favorable consideration.

Bill Wolfe, Director

NJ PEER

We continue the 2010 year in review today, starting with a brief discussion about the ways the environmental rollback has been publicly justified by slogans used by Governor Christie, his DEP Commissioner Bob Martin, and the Red Tape Czar, Lt. Governor Guadagno.

The little media coverage there has been has mostly uncritically embraced and parroted these slogans, media thereby abdicating their role as truthtellers in favor of stenography.

So let’s start by briefly describing the Christie slogans, explore their deeper meaning, and expose the policies they mask and the special interests they benefit.

Slogans are intended to shut down thought. Slogans are a very different form of rhetoric than the traditional practice of spin.

Spin at least remains tethered to underlying reality: spin seeks to interpret reality and persuade through rational argument. But slogans are not grounded in interpretation of reality or a form of persuasion.

Slogans are empty – they displace the substance of reality, and fill it with a myth that appeals to irrational motives or fears. Slogans are designed not to seek truth or persuade, but to hide the truth and manipulate thought and emotion by creating a false perception of reality.

Slogans are made necessary because of the strong public support for protecting public health and the environment.

Obviously, a DEP Commissioner is not going to simply say we are going to make it easier and more profitable for developers to rape the landscape and reduce the pollution control cost of oil and chemical companies so they can dump more toxic crap in your air and water while making record corporate profits (all while emulating Dupont, who according to the Associated Press is off shoring US jobs, disinvesting in the US, and massively investing in third world countries:

“Take the example of DuPont, which wowed the world in 1938 with nylon stockings. Known as one of the most innovative American companies of the 20th century, DuPont now sells less than a third of its products in the U.S. In the first nine months of this year, sales to the Asia-Pacific region grew 50 percent, triple the U.S. rate. Its stock is up 47 percent this year.

DuPont’s work force reflects the shift in its growth: In a presentation on emerging markets, the company said its number of employees in the U.S. shrank by 9 percent between January 2005 and October 2009. In the same period, its work force grew 54 percent in the Asia-Pacific countries.

“We are a global player out to succeed in any geography where we participate in,” says Thomas M. Connelly, chief innovation officer at DuPont. “We want our resources close to where our customers are, to tailor products to their needs.”

So instead we have slogans, founded on either false premises or outright lies.

The worst false premises and outrights lies that Christie has manufactured to mask and support his agenda are that:

• environmental and public health protections are related to the economic recession, unemployment, and State budget crisis (Slogan: “Common sense regulation“);
• that regulations drive companies out of NJ and create barriers to new investment (Slogan: “Red Tape“); and
• that DEP bureaucracy is preventing the private sector from creating jobs and improving NJ’s environment (Slogan: “DEP Transformation“)

These slogans serve a dual purpose.

In addition to being used to mask and justify a rollback agenda, slogans are deployed to redefine problems and pre-empt alternative real solutions by diverting attention from the real underlying causes of serious problems:

• instead of environmentalists going on offense and talking about ways to respond to global warming; cleanup air, water, and land pollution; or preserve remnants of vanishing open space, our collective focus, resources, and advocacy efforts are diverted. We are forced to play defense and defend existing weak and ineffective protections and programs from rollback and attack;
• instead of putting the flawed policies and those responsible for creating problems on the defensive and talking about the greed of Wall Street financial institutions and the failures of lax regulatory oversight, Christie scapegoats DEP and environmental protections (more subtly, but basically the same way he attacked the teachers union); and
• instead of conducting campaigns to shut down coal plants and make a rapid transition to renewable energy, we are consumed responding to straw men arguments are used to change the conversation and frame false choices like the need to reduce energy costs by ending subsidies to renewable energy and eliminating the Societal Benefits Charge.

So the use of slogans provides the business community a twofer: they dodge accountability for creating huge problems AND are provided “regulatory relief”.

Viewing developments through this lens, we present stories from the second quarter of 2010:

April

• Not Much to Say (4/7/10) 
• Life’s a Beach, and then … (4/8/10) 
• Report: Glaciers Disappearing From Glacier National Park (4/9/10)
• The Role of Economics At DEP (4/11/10) 
• Dems Give Christie A Pass On Environmental Cuts and Rollbacks (4/12/10) 
• DEP Commissioner Martin Uses State Police To Eject Environmentalist From Public Meeting (4/13/10)
• Clean Air Council Ignores Elephant in the Room (4/14/10) 
• Tax Day Essay: “On Civil Disobedience” (4/15/10) 
• “Onerous Regulations” Had Nothing to Do with This Plant Closure (4/16/10)
• Landing In Atlantic City (4/16/10) 
• Christie’s Earth Week Preview (4/19/10)
• Earth Week: Day 1: “Red Tape Rollback” (4/20/10) 
• Earth Week Day 2: Back Door Man (4/21/10) 
• Earth Week Day 3: Clean Communities Covers Urban Policy Failure (4/22/10) 
• Earth Week Day 4: Making the Shore (Look) Safe for Private Beach Clubs (4/23/10) 
• Christie’s Earth Week in Review (4/24/10) 
• “Immoral Failure To Act” To Protect Mothers and Infants (4/25/10) 
• Will Senate Draw a Line on Christie rollbacks? DEP Budget Up Tomorrow (4/26/10) 
• Emails Show DEP Commissioner Martin Lied About EPA Perchlorate Standard (4/26/10) 
• Senate Dems Blast Christie Global Warming Cuts and DEP’s Abandonment of Perchlorate Drinking Water Standard (4/27/10)
• More Corporate Cannibalism (4/28/10) 
• The Cartoon Made Martin Do It! (4/30/10)

May

• A Note To DEP Readers (5/3/10) 
• EPA Caves on Coal Ash Regulation (5/4/10)
• Drinking Water Risks Rise, While DEP Ignores Science (5/5/10)
• DEP Trial Testimony Admits Corruption Widespread (5/6/10) 
• Whitman Lobbying for BP (5/6/10) 
• Christie Has Unleashed the Dogs of Pollution (5/6/10) 
• The Obfuscation Proclamation of 2010 (5/6/10) 
• BP Got NEPA Exemption for Gulf drilling (5/6/10) 
• Obama WH Over-Ruled EPA Scientists On Coal Ash Regulations (5/8/10) 
• Drinking Water Institute Urged to Defend Science and Refute Martin Attack (5/8/10) 
• Mother’s Day Note – The Plants Are in Charge (5/9/10) 
• Political Influence at DEP Now Something to Brag About (5/10/10) 
• Bully Bob Martin Now Attacks BPU and Rutgers on Energy Master Plan (5/11/10) 
• They Want to Shoot Bears? (5/11/10) 
• DEP Commissioner Martin Called to Testify Tomorrow (5/12/10) 
• Dupont and Polluters’ Consultants Named to DEP Science Board (5/14/10) 
• Dems Say Oversight Not the Purpose of Martin Kabuki (5/15/10) 
• Environmental Standards Undergoing Internal DEP Review – Red Flag Rollback Threat (5/18/10)
• Cancer Risks in Garfield Homes More than 2,000 Times Allowable Risk (5/20/10) 
• DEP Caves to Trucking Lobby (5/21/10) 
• Trenton Protest Against Christie Budget (5/22/10) 
• Lessons of Gulf Oil Spill Lost On Martin (5/25/10) 
• A “Big Map” for Toxic Site Cleanup? (5/27/10)
• State of the Shore (5/27/10)

June

• Dupont[s Tentacles Extend into North Carolina Science (6/1/10) 
• Did BP Gulf Oil Blowout Cloud Martin’s Vision? How About Exelon’s Rebuke? (6/3/10) 
• DEP Abandons Dry Cleaner Chemical Phase Out – Instead Pays Polluters Not To Pollute (6/4/10)
• Rank Propaganda at DEP (6/5/10) 
• Orwell Lives – Stenographic Praise Displaces Journalism (6/6/10) 
• NJ Parallels to Gulf Disaster – Monday Oversight Hearing (6/11/10) 
• The Day Before Disaster (6/13/10) 
• Symbolism Displaced Substance at Trenton Gulf Oil Blowout Hearing (6/14/10) 
• Police can not “rummage at will” (6/15/10) 
• Martin Doubling Down – Revolving Door Opens For Business Crony Appointment (6/16/10) 
• DEP Caught in Cut & Paste Job on Global Warming Data (6/17/10) 
• Christie Repeating Lax Oversight Errors that Led to Gulf Blowout (6/17/10) 
• All Quiet on the Privatization Front (6/19/10) 
• Obama’s Dr. Strangelove –  BP Tentacles Extend (6/22/10) 
• Deep Confusion About DEP Science Board (6/24/10) 
• Christie Slashes DEP Enforcement and Shifts Burden From Polluters To Taxpayers (6/25/10) 
• You Were Warned – But TOO Late:  You’re Dead! (6/25/10) 
• DEP calls toxic landfill leachate “natural” (6/28/10)

Tomorrow we’ll try to close out the year – and if space and time permit, highlight expectations and priorities for 2011.

Senate Majority Leader Buono Calls Legislation “Assault on Decades of Environmental Protections”  

So Why Are Her Colleagues Rolling Over To Enact Governor Christie’s Agenda?

Democratic legislators jumped on board the Christie Administration’s “Red Tape” environmental rollback wagon yesterday, as 3 more horrible bills were released by legislative committees.

Christie and his corporate backers are shamefully using the economic recession as a pretext to attack and rollback environmental and public health protections, under the guise of slogans:  “common sense regulatory principles” and “streamlining red tape”.

(DEP permits need to be “streamlined” to create jobs? Thousands of projects with DEP approved permits are stalled, which was the logic of the Permit Extension Act – but facts and logic dont matter).

Perhaps worse, corporate Democratic leaders seem intent on outspinning the Governor, cynically calling the rollback  bills part of a “back to work” package.

But in fact, no credible economist – none - links the recession to environmental protections. No one argues that rollbacks will create jobs.

Just the opposite is true:

• the recession and unemployment were caused by the bursting of an unregulated Wall Street greed driven speculative bubble;
• environmental compliance costs are grossly exagerated by industry;
• protections have huge public health benefits; and
• environmental protections create jobs and don’t force relocations of industry.

According to the White House Office of Management and Budget (OMB) thirteenth annual Report to Congress on the benefits and costs of federal regulations:

“The estimated annual benefits of major Federal regulations reviewed by OMB from October 1, 1999, to September 30, 2009, for which agencies estimated and monetized both benefits and costs, are in the aggregate between $128 billion and $616 billion, while the estimated annual costs are in the aggregate between $43 billion and $55 billion.”

Revealing the true policy intent hidden by the “common sense” slogan, Christie’s own Executive Order #2 explicitly calls for “immediate regulatory relief”.

But somehow the media (and some environmental groups) still seem incapable of reporting these facts which contradict and expose the Governor’s spin.

The bills released yesterday were based on Lt. Governor Guadagnos’ business dominated Red Tape Review Group Report. That Report attacked DEP and targeted 12 specific DEP regulations for rollback (see Appendix H).

The Red Tape Report also called for major changes to the way regulations are developed in order to promote business interests. Changes would allow industry to derail, weaken and delay regulations, and increase political control over the content of regulations.

Again, the Christie Administration’s objective to rollback environmental regulation is clear. The objectives of the Red Tape Report are:

“employing a cost/benefit analysis on rules, justifying exceeding federal standards and refraining from doing so unless a New Jersey-specific policy goal is being pursued, …. working to lessen burdens and compliance costs to businesses.” ( page 33)

The controversial Red Tape bills re-emerged yesterday in obscure hearings before the Senate Budget and Appropriations Committee, and just days before Christmas after languishing for more than 8 months.

When the original package of bills were heard in the Assembly back in March, we wrote:

Less than 48 hours after the first “public” (by invite only) meeting of the “Red Tape Review Group” (for press coverage of that meeting, see NJ red-tape review board gets an earful, led by the new Regulatory Czar established by Governor Christie’s Executive Orders #1 (imposing a moratorium on certain regualtions) and EO#2 ( establishing “common sense” regulatory policies including cost benefit analysis and rollback to federal minimums) and EO #3 ( creating the Red Tape Review Group) today an Assembly Regulatory Oversight Committee rammed through a dangerous bill to gut enforcement of a broad array of DEP public health and environmental protections.

When the second round of bills was heard in Assemblyman Burzichelli’s Committee, later in March,we warned about the sinister influence of  “murderers row”:

Senate Majority Leader Barbara Buono (D-Middlesex) has been a leader in resisting the Christie rollbacks and defending environmental and public health protections.

So let’s consider how the Red Tape debate emerged.

During testimony at public hearings back in March , the Red Tape initiative came under harsh criticism. Later in April, when Senator Buono refused to support the report, we wrote:

…while Senator Buono sat on the so called “bi-partisan” Red Tape Review Group, she recently strongly distanced herself from the Report’s recommendations.

According to the April 19 Star Ledger:

“The [Red Tape] report, released shortly before 11 a.m., says the group had “arrived at a series of unanimous recommendations” but omits Buono’s name from the cover sheet.

Asked about the omission, Buono said she raised concerns after receiving the language of proposed legislation last week but was told the group wanted to present a united report. as “just unanimity at any cost, even if it means being dishonest” she said. “Bipartisanship is very different than strong-arming consensus.”

Fast forwarding to events in Trenton yesterday, it was obvious that the deal was in – industry lobbyists and Christie Administration officials didn’t even have to testify. The Democrats did their work for them.

So here’s what the latest round of bills would do:

S 2013 – would extend the current 5 year sunset rule expiration period to 7 years.

A bad idea. Would any business in a rapidly changing science and technology environment lock itself into a 7 year cycle for innovation? The 5 year expiration is the only thing that forces state agencies to review and improve their rules.

S 2014 – undermines the integrity of current rulemaking process and invites abuse by special interests.

Current law prohibits State agencies from making what are called “substantive changes” between the proposal of a rule for public comment, and the later final adoption of that rule. This prohibition was established by NJ courts, and it is intended to protect due process rights and assure that the public is given a clear notice and a chance to comment on regulations. It also provides incentives to DEP scientists to carefully draft rules, allows DEP scientists to control the substance of rules, and shields them from political pressures.

In contrast, the bill would change 30 years of practice and would allow DEP to engage in “bait and switch”. It would create even more political pressure DEP scientists to conduct wholesale negotiations on the substance of rules.

This would make rulemaking more like the corrupt legislative sausage mill, and a lot less like a science and law based system with integrity operating in the public interest.

Here’s how it would work in 3 simple steps: 1) DEP proposes a strong science based rule; 2) political appointees at DEP allow industry lobbyists to rewrite it; and 3) DEP then adopts the industry rewrite as a final rule. By the time environmental groups and the public later figure it out, the policy decision is a fait accompli.

S 6 – (identical to S 1914 and A 2853) – This bill flat out violates federal law and would make radical changes to current environmental laws:

• creates a private compliance certification process, a gross conflict of interest;
• creates a new cost benefit test, with no safeguards, thereby subverting public health and environmetal protection standards in all laws;
• consolidates unaccountable power in a “permit czar” in the Lt. Governor’s Office
• creates waivers of strict compliance based on vague “hardship”
• codifies Governor Christie’s sham new undefined “common sense” regulatory policy (per Executive Order #2?)

We urge you to contact your legislators to oppose these bills.