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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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)

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)

DEP Commissioner Complains About Political Pressure from the “Front Office”

[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.

[Update: There were about 30 empty seats in the back and there weren't many builder types at the NJBIA event. Chris Christie had a NJ Builders Assc. event the same day. I wonder what Christie promised the Builders? Were those empty seats builders? Or did the entire corporate crowd just migrate from the NJBIA breakfast to the NJBA luncheon?]

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.
 

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.

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

 

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

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).

 

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

 

 

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:

[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