Florio Lets Liability Cat Out of the Bag

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

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

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

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

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

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

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

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

fish consumption warning posted on Pompton Lake

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

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

Dupont wiped out an entire fishery.

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

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

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

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

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

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

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

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

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

I)  Florio Lets the Liability Cat Out of the Bag

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

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

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

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

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

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

Practically, what this legalese essentially means is that:

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

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

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

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

Dupont could not get away with that under Superfund.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here are additional serious flaws in Dupont’s analysis:

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

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

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

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

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

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

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

There was no valid characterization of “mercury background”.

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

[ According to NJ DEP Ecological Evaluation Guidance:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pocantico River - North Tarrytown, NY. Site of Washington Irving's classic story:"The Legend of Sleepy Hollow"

[Update: 12/7/11: check out both a remarkable resonance and a remarkable moment. Philip Glass spoke to the OWS at Lincoln Center. There is an echo of themes from the below post. The moral of the below post was about literature, sounds, and our discovery of virtue.The "machine" can "occupy" the "garden", and encroach on intellectual and artistic space (i.e the pastoral ideal). I believe in the need to restore notions of republican virtue and the public interest. Here is what Glass said, the closing lines in the play Satyagrapha: watch the episode:

"When righteousness withers away and evil rules the land, we come into being, age after age, and take visible shape, and move, a man among men, for the protection of good, thrusting back evil and setting virtue on her seat again."

Of Chainsaws and Virtue - My "Sleepy Hollow Moment"

I often have "Sleepy Hollow moments" - and am sure you do too.

What the hell is a "Sleepy Hollow moment" you say?

Bear with me as I explain and we explore the meaning.

I'm sure you'll agree that there's some powerful and important stuff going on here.

The Sleepy Hollow Moment defined

I hate chainsaws.

They are loud, destructive, and dangerous. Operating one absolutely terrifies me.

Following in the footsteps of the axe, chainsaws - by orders of magnitude - have aided the destruction of countless acres of magnificent forests.

Nothing -  save an all terrain vehicle or the blast of a shotgun - can more completely destroy a tranquil walk in the woods.

Chainsaws are an almost perfect symbol of what Leo Marx wrote about in his masterpiece on the technological sublime and the pastoral ideal: The Machine in the Garden - Technology and the Pastoral Ideal.

Marx (no relation to Karl), prefaces that superb book with a quote from Washington Irving's 1820 tale "The Legend of Sleepy Hollow" (I'm an Irving homeboy, from Tarrytown NY, a graduate of Sleepy Hollow High School):

I mention this peaceful spot with all possible laud; for it is in such little retired valleys that population, manners and customs remain fixed; while the great torrent of migration and improvement, which is making such incessant change in other parts of this restless country, sweeps by them unobserved. They are little nooks of still water which border a rapid stream…  (Irving - 1820)

At the outset of the book, Marx distinguishes two very different forms of American pastoralism - the first he calls "popular and sentimental", the second "imaginative and complex".

The sentimental version is nostalgic: "a flight from the city":

An inchoate longing for a more "natural" environment" enters into the contemptuous attitude that many Americans adopt toward urban life (with the result that we neglect our cities and desert them for the suburbs). Whenever people turn away from the hard social and technological realities, this obscure sentiment is likely to be at work. We see it in our politics, in the "localism" invoked to oppose an adequate system of national education, in the power of the farm block in Congress, in the special economic favor shown to "farming" through government subsidies … It manifest itself in our leisure activities, in the piety towards the out-of-doors expressed in the wilderness cult, and in our devotion to camping, hunting, fishing, picnicking, gardening, and so on.

Marx concludes that this sentimental form is:

generated by an urge to withdraw from civilization's growing power and complexity. What is attractive in pastoralism is the felicity represented by an image of a natural landscape, a terrain either unspoiled or, if cultivated, rural. Movement towards such a symbolic landscape also may be understood as a movement away from an "artificial" world … away from sophistication towards simplicity … away from the city towards the country …a vehicle of escape from reality.

Marx then contrasts this sentimental form of the pastoral with his "imaginative and complex" form. But he doesn't use a specific definition or criteria, instead he relies on an illustration from a passage by Nathaniel Hawthorne.

Marx develops what he calls "the Sleepy Hollow moment" or motif. To do this, he refers to Hawthorne's own experience of a place called "Sleepy Hollow".

The signal event transpires on the morning of July 27, 1844 in the woods near Concord, Massachusetts.

Hawthorne's notes of that day set out to describe a tranquil moment. Marx interprets the larger significance:

…  he [Hawthorne] sat in solitude and silence and tried to record his every impression. One incident dominates his impressions. Around this “little event” a certain formal – one might say almost dramatic – pattern takes shape. It is to this pattern that I want to call attention. […]

Hawthorn is using natural facts metaphorically to convey something about the human situation. From several pages in this vein, we get an impression of a man in almost perfect repose, idly brooding upon the minutia of nature, and now and then permitting his imagination a brief flight. … Hawthorne is satisfied to set down unadorned sense impressions, especially sounds – sounds made by birds, squirrels, insects, and moving leaves.

But then, after a time, the scope of his observations widens. Another kind of sound comes through. He hears the village clock strike, a cowbell tinkle, and mowers whetting their scythes.

Without any perceptible change of mood or tone, he shifts from images of nature to images of man and society. He insists that “these sounds of labor” do not “disturb the repose of the scene” … He is describing a state of being where there is no tension either within the self or between the self and its environment. Much of this harmonious effect is evoked by the delicate interlacing of sounds that seem to unify society, landscape, and mind. What lends most interest, however, to this sense of all encompassing harmony and peace is a vivid contrast:[Marx excerpts excerpts Hawthorne]

But, hark! there is the whistle of the locomotive – the long shriek, above all other harshness, for the space of a mile cannot mollify it into harmony. It tells a story of busy men, citizens, from the hot street, who have come to spend a day in a country village, men of business; … and no wonder that is gives such a startling shriek, since it brings the noisy world into the midst of our slumbrous peace. [end Hawthorne]

[…]

…There is something arresting about the episode: the writer sitting in his green retreat dutifully attaching words to natural facts, trying to tap the subterranean flow of thought and feeling and then, suddenly, the startling shriek of the train whistle bearing in upon him, forcing him to acknowledge the existence of a reality alien to his pastoral dream.  What begins as a conventional tribute to the pleasures of withdrawal from the world – a simple pleasure fantasy – is transformed by the interruption of the machine into a farm more complex state of mind.

Our sense of its evocative power is borne out by the fact that variants of the Sleepy Hollow episode have appeared everywhere in American writing since the 1840’s. We recall the scene from Walden where Thoreau is sitting rapt in a revery and then, penetrating the woods like the scream of a hawk, the whistle of the locomotive is heard; or the erie passage in Moby Dick where Ishmael is exploring the innermost recesses of a beached whale and suddenly the image shifts and the leviathan’s skeleton is a New England textile mill; or the dramatic moment in Huckleberrry Finn when Huck and Jim are floating along peacefully and a monstrous steamboat suddenly bulges out of the night and smashes straight through their raft. More often than not, the machine is made to appear with startling suddenness.

[…]

What I am saying … is that Hawthorne’s notes mark the shaping of a metaphorical design which recurs everywhere in our literature. They are a paradigm of the second kind of pastoralism mentioned at the outset. By looking closely at the way these notes are composed we can begin to account for the symbolic power  of the “little event” in Sleepy Hollow”

[…]

Since Jefferson’s time the forces of industrialization have been the chief threat to the bucolic image of America. The tensions between the two systems of value had the greatest literary impact in the period  between 1840 and 1860, when the nation reached that decisive stage in its economic development which W.W. Rostow calls the “take-off”… In America, according to Rostow, the take-off began about 1844 – the year of the Sleepy Hollow episode – just at they time our first significant literary generation was coming to maturity.   … The locomotive appears in the woods, suddenly shattering the harmony of the green hollow, like a presentiment of history bearing down on the Amercian asylum. The noise of the train… is a cause of alienation …. and so it estranges [Hawthorne] from the immediate source of meaning and value in Sleepy Hollow. In truth, the “little event” is a miniature of a great – in any ways the greatest -event in out history.

That Hawthorne was fully aware of the symbolic properties of the railroad is beyond question. Only the year before he had published “The Celestial Railroad”, a wonderfully compact satire on the prevailing faith in progress.

[...]

In its simplest, archetypal form, the myth affirms that Europeans experience a regeneration in the New World. They become new, better, happier men – they are reborn. In most versions the regenerative power is located in the natural terrain: access to undefiled, bountiful, sublime Nature is what accounts for the virtue and special good fortune of Americans. It enables them to design a community in the image of a garden, an ideal fusion of nature with art. The landscape thus becomes the symbolic repository of value of all kinds – economic, political, aesthetic, religious. …

…The sudden appearance of the machine in the garden is an arresting, endlessly evocative image. It causes the instantaneous clash of opposed states of mind: a strong urge to believe in the rural myth along with an awareness of industrialization as a counterforce to the myth.

My Sleepy Hollow Moment

So, with Marx’s observations in mind, let me rehash my own recent “Sleepy Hollow moment”, and suggest productive avenues of future pursuit.

As I sat on the porch with a contented dog and sipping coffee, it was the incessant whine of the chainsaw that broke the moment and drew me to the woods behind my house on an otherwise fine Saturday morning.

Those woods are preserved and adjacent to a State Wildlife Management Area.

So, could my disruptor of the peace be so bold as to be poaching wood too?

My mind ran wild and my blood began to boil, as I set out into the woods, in the direction of the racket.

Upon arrival, I met “Mr. G”.

No confrontation – after a brief conversation, it was clear that he was no defiler of nature or poacher of wood, but a gentle man of virtue.

I immediately discovered that Mr. G. was a volunteer trail builder.

When I asked Mr. G about his volunteer work, he began by noting that although not many people now hiked in these recently preserved woods.

But he quickly emphasized that “people 50 years from now sure will appreciate this trail“.

Yes, surely Mr. G: “these sounds of labor” do not “disturb the repose of the scene” -  “sounds that seem to unify society, landscape, and mind”.

And therein lies the moral of our tale of our Sleepy Hollow moment:

Our discovery of virtue: consideration for the future, the wellbeing of the landscape and natural world, and selfless work in the public interest.

Mr. G.

So what went so wrong historically?

Why is the relation between technology and the garden so screwed up today?

To probe those questions, next time, we being that exploration, based on the work of historian Joyce Appleby (“Capitalism and a new social order“).

We focus on Appleby’s analysis of how the concept of virtue was redefined and perverted in the 1790’s.

Virtue was redefined: from Classical republic virtue defined as selfless public service, to  one based on individual private gain.

And the rest, as they say, is history.

]]> http://www.wolfenotes.com/2011/12/ode-to-a-chainsaw-my-sleepy-hollow-moment/feed/ 1 http://www.wolfenotes.com/2011/06/will-democrats-seek-real-rggi-reform/ http://www.wolfenotes.com/2011/06/will-democrats-seek-real-rggi-reform/#comments Mon, 20 Jun 2011 01:49:03 +0000 Bill Wolfe http://www.wolfenotes.com/?p=14853 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 curent 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 greenhosue 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 testimong 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

EPA Superfund cleanup worker – if you believe that NJ private contractors, whose clients are corporate polluters, acting with no government oversight, will design and implement protective (expensive) worker and community health and safety plans, then I have some toxic assets in Florida for you.

interlude (noun): A short farcical entertainment performed between the acts of a medieval mystery or morality play.

Thanks to a last minute heads up by Bob Speigel of Edison Wetlands Association (EWA), last night I sat in on a “public” meeting of the NJ Site Remediation Professionals Licensing Board (SRPLB – or “Board”).

“Our lives are strange dark interludes in the electrical display of God the Father!”

So if you find nothing in the corridors open the doors, if you find nothing behind these doors there are more floors, and if you find nothing up there, don’t worry, just leap up another flight of stairs. As long as you don’t stop climbing, the stairs won’t end, under your climbing feet they will go on growing upwards.
–“Advocates”

I was allowed to say a few words at the conclusion of the 2 hour meeting, as were folks from EWA and the NJ Chapter of the Sierra Club.

We all share a deep concern that the SRPLB is is implementing a fatally flawed law and is more interested in protecting the reputations and profits of private consultants than in protecting public health and the environment.

That surmise was only enhanced by what I heard last night during the Board’s “deliberations”.

Magritte "The Menaced Assassin" (1927)

So here’s a thumbnail sketch of why that’s the case and what the implications are (see Margritte above for the surreal dynamics at play) .

After Bob Speigel gave me the heads up, I searched for documents to review in preparation for the meeting so I could meaningfully participate.

But not only could I not locate any documents, over 1 year after the Board was created, I could not locate a Board website, the agenda for the meeting, or the time and location.

When I arrived and requested copies of the documents that were to be discussed during the meeting, I was given an agenda and told that no documents are available for public release.

So much for meaningful public comment – “So if you find nothing in the corridors open the doors ….”

The Board was not discussing trivial matters – agenda items included:

• the complaint and disciplinary process to hold contractors accountable to professional standards, ethics laws, and compliance with cleanup requirements (sanctions include license revocation);
• the “audit” requirements to assure that technical Reports and cleanup documents are true; that private contractor certifications are honest, and that cleanups are done safely and in compliance with laws and regulations (enforcement includes jail time); and
• public involvement in Board deliberations

Apparently not satisfied with the fact that the toxic site cleanup program has been privatized  and DEP oversight effectively eliminated, the private consultants and engineering firms have also gained control of writing the DEP regulations with which they will have to comply.

One example of how captured DEP is by private interests: DEP recently proposed to eliminate mandatory cleanup timeframes to provide “a safety cushion” for consultants.

Going beyond the absurdity of having the consultants for regulated polluters writing the cleanup regulations that they will have to comply with (the front end), those same private interests also dominate the Board and now they are writing the requirements for their own oversight, enforcement, and auditing (the back end).

The Board’s conception of implementing the “audit” mandated by law was to develop a questionairre to those audited. The Chair of the Audit Committee designing the audit requirements is an LSP consultant who is subject to audit. The draft questionairre and audit process were  not made available for public comment.

Board members explicitly said that the objective of the audit process and questionairre is “not to look at the technical basis and facts supporting the documents” and that they will only conduct a paper review (could you imagine that kind of “audit” from the IRS?). One Board member was highly skeptical of that approach and questioned how the   Board could determine if the documents and certifications submitted by the audited consultants were accurate and truthful. 

This “pay to play” on steroids system functions as if  Wackenhut Private Security Guards replaced the police; corporate CEO’s replaced prosecutors and judges, and corporate managers replaced juries.

Last night, with no sense of irony or shame, the complaint and disciplinary process was presented by Jorge Berkowitz of Langan Engineering (nominated to the Board by Governor Christie). Talk about an inside job – that’s the same consulting firm that has 9 staff involved in writing the DEP cleanup requirements (for details, see this).

Jorge Berkowitz, Langan Engineering, presents a draft disciplinary process. The Board as cop, prosecutor, judge, jury, and executioner (Jorge apparently was unaware of OAL appeal rights and indifferent in not hostile to transparency and public accountability.)

Here’s what the Star Ledger editorial board had to say on January 2 about Langan’s $25,000 political contribution to a front group supporting Governor Christie’s legislative agenda (and in even more irony and absurdity, Berkowitz is one of the better Board members!):

a sleazy practice that puts both parties within winking distance of a bribe, and that it engenders widespread mistrust.

Ordinarily, I would urge the public to become involved in the process to improve protections of the public interest.

Sadly, in this case, I am unable to do so in good conscience.

When public policy goes this far off the rails, and when those controlling the process are either oblivious to the consequences or cravenly using it to advance private special interests, then traditional public involvement becomes a sham, fraud, and perverse waste of time.

Unfortunately, it seems like we will have to wait for even worse disasters before any change to this system – and that may be a long time, because the impacts of the decisions that will be made by private cleanup contractors are not clearly visible.

But the consequences include things like poisoned water supplies, needless exposure to toxic chemicals and increased health risks, and more havoc on natural ecosystem functions.

We close with Kafka:

The Court wants nothing of you. It recieves you when you come and dismisses you when you go.

Live hand-in-hand
And together we’ll stand
On the threshold of a dream.  ~~~  Moody Blues (1969) (read lyrics and listen to the music)

Binghamton, NY (9/13/10)

Sorry for delay in writing about the important September 13  EPA public hearing in Binghamton NY to take public comment on the scope of a scientific research study to assesss the impacts of fracking.

Congressman Maurice Hinchey (D/NY)

Creation of  that EPA  study was spearheaded by NY Congressman Maurice Hinchey and has generated enormous public interest  (the deadline for public comment is September 28)

Despite the public outrage, many well publicized destructive impacts, and a wild west gold rush mentality, since that public hearing, it looks like the Obama Administration is corrupted by gas industry lobbying (see NY Times: ”Obama Rejects Time Out for Natural Gas Drilling in NY, Pa.”

Remarkably, it appears that EPA is about to cave in to gas industry pressure to politicize the science. This would repeat the 2004 scientific  fiasco  (exposed by EPA whistelblowers) when Vice President Cheney and his Energy Taskforce installed Haliburton lobbyists to be in charge of EPA’s initial study that led to 2005 Congessional exemptions from environmental laws.

If the Obama EPA and Science Advisory Board allow a repeat of that, they will destroy all credibility EPA may have gained by what appear to be good faith efforts thus far.

Propublica has been doing outstanding work on the fracking issue, which excuses my laziness. So I urge anyone involved or interested in the fracking issue to read that coverage. It is extremely unusual for journalists to so beautifully investigate, understand, and report on a complex scientific and regulatory issue.

All I can say is a huge thank you to ProPublica, and to urge our home town NJ reporters to emulate that superb work.

Anyway, getting back to the issue at hand – EPA held a public hearing to take comments in Binghamton NY back on September 13. The hearing was preceded by a street protest (I was proud to discover that I went to college with Binghamton’s Mayor, Matt Ryan, who was a fellow graduate of SUNY Binghamton’s environmental science and public policy program. In a superb irony, my later graduate thesis topic at Cornell was “Land Use Controls to Prevent Groundwater Contamination of NY Southern Tier River Valley Aquifers  “).

Technically, my only comment on the scope of the EPA study is that it seeems like EPA is too narrowly focusing on drinking water impacts of chemicals, and ignoring the massively destructive land use and ecological impacts of thousands of fracking wells. And with current drought conditions, how are DRBC and NY, NJ, and Pennsylvania officials going to allocate reductions among current users that are necessary to account for the 5 million gallons of water needed for each of thousands of fracked gas wells?

Strategically, I’d note that some NY activists seems hopelessly naive in presuming a “de facto” drilling moratorium. But NY activists were already screwed by NY Governor Paterson and the Legislature when they enacted the so called “spacing bill“ that provided the gas industry a certain “by right” drilling density. (read the PR cover story here). In a rare and refreshing bit on honesty, a western NY spokesman from the Onandaga Indian Nation recognized this by stating “we’ve already been fracked”. 

The links above provide more than enough technical information, so all I will do below is post a few pictures of the event.

US EPA Region 2 Administrator, Judith Enck

In addition to posting photos, I also take this opportunity to do three things:

1) to recognize the leadership of longtime environmental warrior Congressman Maurice Hinchey (D-NY), who sponsored the legislation to conduct the EPA study, as well as the “Frack Act”  (HR 2766) to regulate fracking;

2) to thank EPA Region II Adminsitrator Judy Enck for her sincere and outstanding efforts; and

3) to condemn NJ DEP Commissioner Bob Martin and NJ Governor Christie for quietly acting behiond the scenes to support fracking.

(some photos)

residents welcome EPA, as Binghamton mayor Matt Ryan addresses protestors

Lehigh River (at Jim Thorpe, Pa.) is threatened too

NY State's Southern Tier remains rural (underlain by Marcellus gas bearing shale)

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).

Middlesex Preschool - located virtually on top of old landfill

Symbolically illustrating the importance of the issue, the very first piece of legislation Governor Jon Corzine signed in the year 2007, was the so called “Kiddie Kollege”  law (P.L. 2007, Chapter 1.). To much fanfare, in a January 11, 2007 press release, Corzine proclaimed:

GOVERNOR CORZINE SIGNS LEGISLATION TO IMPROVE ENVIRONMENTAL SAFETY AT SCHOOLS AND CHILD CARE CENTERS

 TRENTON - Governor Jon S. Corzine today signed legislation to help ensure that child care and educational facilities are environmentally safe for the children attending them.

“This bill will help identify and remediate educational facilities and child care centers located on environmentally high risk sites,” Governor Corzine said. “This puts New Jersey at the forefront of states nationally in protecting children from environmental contaminants while at child care facilities and schools.”

At the time – and in testimony during legislative review of the bill – we warned both the Governor and Legislators that the entire approach was fatally flawed and would not be effective in protecting children from toxic chemical exposures while at schools and daycare centers across the state. 

Basically, the fatal flaw was to try to address a massive problem in NJ’s toxic site cleanup program with a band aid – the daycare licensing process.

But of course it’s a lot easier politically to sweep the issue under the rug by making it only a day care licensing issue, than it is to take on the powerful chemical industry lobby in New Jersey that is responsible for the problem. Daycare centers don’t have lobbyists or make campaign contributions.

Perhaps even worse, we have learned that the Attorney General’s Office has issued a legal opinion that says that the Kiddie Kollege law DOES NOT APPLY to existing schools. This opinion basically calls the Governor a liar.

The Middlesex preschool case exposes multiple flaws and loopholes in the Kiddie Kollege law:

Oversight of Middlesex Boro Landfill closure, toxic site cleanup, and vapor intrusion are DEP's job.

1. The Middlesex Boro pre-school where unsafe indoor levels of benzene and TCE were recently found is located virtually on top of an old landfill. Proper closure and cleanup of the landfill is regulated by and is the responsibility of DEP and has NOTHING to do with day care licensing.

2. The source of the chemical fumes in the preschool are  caused by what is known as “vapor intrusion”; a process where volatile organic chemicals move from a toxic waste site through groundwater and soils and enter a building from below (see this for a good explanation) . Identifying sites and controlling vapor intrusion into buildings is regulated by and is the responsibility of DEP and has NOTHING to do with day care licensing.

3. The source of the chemicals in the pre-school are from a DEP regulated discharge of hazardous substances to soils and groundwater. Cleanup of contaminated sites is regulated by and is the responsibility of DEP and has NOTHING to do with day care licensing.

4. Thousands of children in hundreds of schools across New Jersey are potentially  impacted by vapor intrusion from toxic sites and industrial emission sources. These pollution sources are regulated by DEP and have NOTHING to do with day care licensing.

The Middlesex preschool tragedy was predictable, predicted, and entirely preventable. So, for purposes of public education and accountability, let’s walk quickly through the history of all the warnings that were not heeded by the Governor and Legislators, all of whom knew better:

In August 2006, when the Kiddie Kollge daycare tragedy emerged, we warned:

MERCURY-LADEN DAY-CARE CENTER IN NEW JERSEY IS NO ANOMALY

“What is going on in New Jersey is both unbelievable and to be expected from its deliberately anemic toxic cleanup laws. There are likely hundreds more ticking toxic time bombs out there that have been re-developed with DEP’s blessings.”

When DEP failed to respond aggressively to the tragedy, we warned that a coverup would likely ensue:

CALL FOR INSPECTOR GENERAL TO HEAD MERCURY DAY-CARE PROBE — Severe Toxic Problems Acknowledged in 2002 Internal “Vulnerability Assessment

“If we do not want to see this type of debacle recur, it is crucial that the underlying policy, regulatory, and program weaknesses be identified – and that is a job for the Inspector General.”

When we disclosed that DEP was negotiating a voluntary agreement with the polluter of Kiddie Kollege that poisoned 60 toddlers, we warned: 

NEW JERSEY TOXIC CLEANUP PROGRAM EXPOSED AS TOOTHLESS TIGER — State Allows Industry to Control Cleanup Even In Most Egregious Cases

“New Jersey only cleans up contaminated sites with the consent of the polluter – how nuts is that?” If the Kiddie Kollge scandal cannot produce meaningful reform, then heaven help us because we apparently cannot help ourselves.”

When DEP conducted a statewide “assessment” of  4,200 day care centers within 400 feet of a toxic waste site, we warned:

60 MORE NEW JERSEY DAY-CARE CENTERS NAMED ON TOXIC WARNINGS — Hundreds of Homes, Schools and Other Facilities May Also Be Vulnerable

“Why is DEP not also giving warning notices directly to parents, teachers and neighboring residents?”… “What is being found at day-care centers is just the tip of a much bigger chemical pollution problem that New Jersey is not ready to acknowledge,”

When we uncovered documents that showed that DEP was actively covering up the problem, we warned:

NEW JERSEY AGENCY SAT ON SECRET LIST OF 6,000 TOXIC DANGER SITES — Latest Corzine “Kiddie Kollege” Reform Scheme Falls Well Short of Mark

“These documents show that that DEP knew perfectly well that tragedies like Kiddie Kollege were accidents just waiting to happen,… According to testimony delivered by Bill Wolfe, the Corzine plan contains several other major flaws:

The bill skips over existing health risks at more than 700 day care centers which are located on or within 400 feet of contaminated toxic waste sites plus as many as 100 schools located on or near toxic waste sites;

When similar toxic problems were found at schools, we warned:

TOXIC SCHOOL SCANDAL SPOTLIGHTS WEAK NEW JERSEY LAW — Parents Get No Notice of Child’s Exposure in Deregulated State Clean-Up Program

“As we have repeatedly warned, every few months another toxic scandal will erupt and state officials will again try to act as if they do not know how it could happen. The place to start looking for answers is in the mirror.”

When scores of old landfills were shown to be polluting groundwater and emitting poison gases into nearby homes across the state, we warned: 

NEW JERSEY POSTS LIST OF 831 DIRTY DUMPS BUT NO CLEANUP PLAN — More than One in Six Abandoned Dumps Polluting Groundwater

“A number of housing developments have sprung up along the perimeter of the landfills, without proper notification to purchasers or adequate cleanup and closure. In some places, [toxic] gas has migrated into basements and drinking water wells have been contaminated…. In a December 12, 2006 letter, Bill Wolfe asked the Corzine administration to warn potentially impacted residents”

When so the called Kiddie Kollege reform legislation was being considered by the legislature, we warned: 

NEW JERSEY TOXIC DAY CARE REFORM BILL STILL MISSES THE MARK — State Grasping for Quick Fixes to Broken Brownfields Program

“While the intent and some provisions of this ambitious legislation are commendable, the bill fails to address the underlying flaws in NJ toxic site cleanup laws, while the indoor air program may be unworkable,”

When the Kiddie Kollege bill was on Governor Corzine’s desk, we warned and requested a conditional veto::

CORZINE URGED TO CLOSE LOOPHOLES IN TOXIC DAY-CARE BILL — Conditional Veto Could Strike Out Exemptions and Strengthen Safeguards

“This is the moment when Governor Corzine needs to back up his rhetoric of being independent from special interests. If Governor Corzine will not act now to protect children from a lifetime of damage from breathing poisonous vapors, when will he act?”

 (end of story - tomorrow, Part III)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Part II – Corzine daycare center reforms failed (Wednesday)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So what else is new? Right.

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

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

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

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

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

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

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

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

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

Atlantic County Utilities Authority wind project - Atlantic City, NJ

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

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

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

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

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

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

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

 John Hazen 9/28/2009 11:50 AM >>>

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

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

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

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

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

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

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

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

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

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

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

former Governor Jim Florio was in attendance

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

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

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

What is the status? How many license applications?

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

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

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

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

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

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

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

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

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

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

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

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

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

A: Smith: Yes

McKeon: Yes

Bateman: Yes

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

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

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

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

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

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

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

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

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

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

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

11. Politics

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

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

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

A: Bateman: Give Dave Pringle credit.

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

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

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

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

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

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

d) Lame Duck Priorities – Smith:

            Forest stewardship

            ATV registration

            Greenwood Lake Commission fee authorization

            Restrictions on nitrogen fertilizers – Barnegat Bay eutrophication

            Salwater fishing registration

            Dam restoration

Next Session priorities – Smith

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

            Energy bills – renewables

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

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

DEP Commissioner Mark Mauriello

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

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

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

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

Anne Masse – employed by Dupont 

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

Joseph West – Merck Research Laboratories, Rahway NJ

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

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

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

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

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

Lobbyists should be limited to these buildings:

Statehouse, Trenton, NJ

Legislative Annex, Trenton, NJ

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

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

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

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

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

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

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

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

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

See below press release for details. 

For Immediate Release:  Monday, September 28, 2009

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

 Industry Moves to Take Over Jersey Eco-Science Board

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

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

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

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

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

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

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

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

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

 ### 

 Read the PEER lawsuit

 View DEP denial of record release under OPRA

 Review the Science Advisory Board charter

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

Look at the ongoing war by industry against DEP science

Examine the tactics of DuPont

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

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

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

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

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

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

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

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

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

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

Downtown Pittsburgh in military lockdown.

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

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

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

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

University of Pittsburgh student has ideas

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

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

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

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

Iraq Veterans Against the War join peaceful protestors

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

shotgun toting riot control police confronts college student

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

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

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

military unit defends port-a-potties from peaceful protestors

canine unit troops and motorcycle cops intimidate peaceful protestors

Pitt students face off against armed troops

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

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

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

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

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

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

Earth Day, 2007 - environmentalist applaud DEP rollbacks

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

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

Dear Commissioner Jackson:

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

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

Say What? Here’s that sad tale:

 According to DEP:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

significance”. (link here)

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

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

In January 6, 2003: Paulins Kill; 

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

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

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

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

 

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

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

 

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

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

 

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

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

End of story.