WolfeNotes.com

Race is Built Into the Institutions and Algorithms of Power

The EJ Bill Ignores The Mechanisms of DEP Regulations and Permits

My prior post highlighted 3 basic structural flaws in the environmental justice legislation (S 232 [2R]) now on Gov. Murphy’s desk.

Today’s post expands upon that analysis by relating it to the larger debate about racism and then laying out other more technical flaws.

I)  Institutional Racism Operates By Injecting Race Into Governing Rules

One of the most important ideas to emerge from the Black Live Matter movement is a focus on “institutional racism”, also called “structural racism” and “systemic racism”. That reality exposes the fact that racism operates at multiple levels and is structurally linked to power. Racism is far more insidious, powerful, and destructive than merely the individual level Archie Bunker style prejudice and what is currently described as individual’s “implicit bias”.

Like Occupy Wall Street’s use of the “1`%” metaphor to provide the language and concepts to open up political space to discuss income and wealth inequality, BLM’s focus on “institutional racism” has opened up similar space to analyze and discuss racism.

I attribute a catalyst for the current focus on institutional racism to Michele Alexander’s brilliant groundbreaking 2010 book “The New Jim Crow”.

That book exposed in detail exactly how racism is built into the criminal justice system at every level, from the school-to-prison pipeline, to police deployments & tactics, to criminal laws, to sentencing formulas, to prosecution, and to prisons.

(the work of author Alex Vitale’s “The End of Policing” expands Alexander’s focus on race and slave patrols in the origin of police to include the history of using police as instruments of social control and class warfare).

[Full Disclosure: I’m on the side of universal/class in the “race/identity versus class/universal” debates. Penn Professor Adolph Reed makes the case in his distinction between racial democracy and social democracy – listen to today’s interview!]

Similarly, Ta-Nehisi Coates’ work “The Case For Reparations“ deconstructs institutional racism, particularly in showing how “redlining” simultaneously created segregated ghettos, denied black people opportunity, and erected barriers to black social mobility and wealth formation. This institutional racism operated by injecting racism into the quantitative formulas and methods (algorithms) for how banks and insurance companies analyzed financial risks and allocated capital investment resources, as well as how government designed social programs and allocated resources (there were other equally racist rule changes, including private property restrictive covenants and local exclusionary zoning)

Both Alexander and Coates expose how racism was built into the algorithms of power and how racism actually works in society.

Feminists also have shown how sexism is built into daily life. My favorite illustration is how even auto safety is sexist, as the engineering, safety and design strategies were all based on the male body. This fact results in smaller bodied women suffering far more serious crash injuries than would be the case if things like seatbelts and auto safety design were based on the female anatomy.

The underlying similarity in all  these examples in how institutional racism works is how racism is built into the algorithms of power.

Racism “works” so powerfully because it is built into the Operating Systems and algorithms of power.

In order to dismantle these racist systems, the underlying algorithms must change.

Which takes me to the pending environmental justice legislation.

II)  EJ Bill Fails To Change The Rules of the Regulatory Game

As I previously wrote, that bill completely fails to address DEP’s regulatory algorithms – things like how DEP conducts “risk assessment” and local air quality impacts.

Just like the redlining banks and insurance companies injected race into their financial risk assessment, and the cops inject race into deciding which neighborhoods to target and which groups to stop & frisk and profile, and the car companies based auto safety on sexism, so too does DEP inject race (if only by neglect) into their regulations and permit decisions.

In order to provide environmental justice, environmental laws, DEP regulations, Technical Manuals, Guidance Documents, permit review methods, public participation processes, and permit decision criteria and standards must be changed.

Again, the pending EJ bill fails to do this, thereby giving DEP a pass to continue the status quo business as usual.

III)   Details Matter – Some significant positives

Much, but not all, of my prior analyses and criticism remain valid, see:

• NJ Democratic Legislators Refuse To Consider Even A Weak Environmental Justice Bill
• Gov. Murphy’s “Environmental Justice” Legislation Would Do Nothing To Reduce Current Pollution or Unjust Disproportionate Burdens In Minority Communities
• Now Is the Time To Make Real Demands On Environmental Justice Legislation
• 18 Years After Scathing Criticism By Federal Judge For Ignoring “Environmental InJustice”, NOTHING HAS CHANGED AT NJ DEP

However, this post shall supercede prior posts that are in conflict, because the bill has been amended since those posts were written.

On the positive side, the bill would provide authority for DEP to consider cumulative impacts, deny permits for certain new major sources of pollution, and impose conditions on renewals of permits for existing facilities, upon a finding that there are or would be unacceptable disproportionate public health stressors or environmental impacts in certain already overburdened “environmental justice communities that meet the criteria in the bill for that designation.

However, there are several problems with the implementation and enforcement of this authority which narrow it and render it unworkable, such that it would be rarely – if ever – invoked, which I discussed yesterday and will  add details today.

Another positive is that the final version of the bill also narrowed a huge loophole I previously criticized regarding existing sources of pollution and renewal of permits for those facilities. However, DEP is not authorized to deny those permits, but merely impose conditions, as I discuss below.

The DEP rulemaking delay issue I flagged also has been addressed, although imperfectly.

IV)  Huge Negatives Outweigh Positives and Argue For Governor Murphy To Veto

The negatives far outweigh the positives, which leads me to recommend that Gov. Murphy veto the bill, as the flaws are too major to be remedied via a conditional veto (CV) and even if they were, the legislature is very unlikely to concur with a CV that essentially re-writes the legislation.

Here are the major technical problems with the bill:

1. Contradictions On Cumulative Impacts

The bill, for the first time, would force DEP to consider “adverse cumulative environmental or public health stressors in the overburdened community”.

That is a huge step forward, but other loopholes in the bill completely gut this cumulative impact standard.

The whole concept of “cumulative impacts” is based upon the fact that while a single small source of pollution may have negligible adverse impacts, when multiple sources are considered, then the cumulative pollution from these many small sources may be harmful.

Additionally, the DEP’s Paterson NJ air toxics/EJ study addressed cumulative risk. That study found that small pollution sources located nearby sensitive receptors (like schools) could create dangerous “hot spots”. That study also confirmed that the cumulative impact of many small sources can create unacceptable risks.

But the bill would gut this cumulative impact standard while ignoring the whole concept of “hot spots”.

The bill has a 100 ton per year air pollution emission threshold. Smaller pollution sources (i.e. the emit less than 100 tons) would not be regulated by the cumulative impacts standard. This 100 TPY threshold would exempt numerous small sources that, combined, have unacceptable cumulative impacts as well as potential “hot spot” risks.

Additionally, it is not clear that even major sources above the 100 TPY threshold that are regulated would have to consider the cumulative impacts of the smaller sources.

That 100 TPY exemption threshold contradicts the fundamental concept of cumulative impacts and renders the bill ineffective and absurd on its face.

2. Compelling public need waiver

The bill would allow DEP to waive the permit denial or permit condition requirements of the bill – regardless of public health or environmental impacts – if DEP finds that the project/permit in question would satisfy a “compelling public need”, i.e. based on a DEP finding that the “facility will serve a compelling public interest in the community where it is to be located”

It is arguable that this broad and virtually unconditional waiver actually weakens current environmental laws, which do NOT authorize DEP to waive permit requirements to satisfy any “compelling public need”.

Accordingly, DEP could use this bill’s compelling public need waiver authority to issue various environmental permits that they would have denied under current law.

Additionally, the whole concept of a “compelling public need” waiver is deeply troubling. It will operate in direct contradiction of and defeat the stated primary objective of the legislation to reduce the siting of polluting facilities in disproportionately overburdened EJ communities.

Here’s why:

a) There is a compelling public need to manage waste – including hazardous waste. Therefore, DEP will continue to issue and renew permits for garbage incinerators – and even worse – hazardous waste management treatment, storage and disposal facilities in EJ communities

b) There is a compelling public need to treat domestic sewage and industrial wastewater. There fore DEP will continue to issue and renew sewage treatment plants and industrial wastewater treatment operations in EJ communities.

c) There is a compelling public need to compost and recycle wastes. Therefore, DEP will continue to issue and renew permits for scrap metal, junkyards, compost, and recycling facilities in EJ communities.

d) There is a compelling public need to ship and transfer garbage. Therefore, DEP will continue to issue and renew permits for garbage transfer stations in EJ communities.

e) The Chemical industry already argues and will now be given a legal basis to argue that there is a compelling public need to manufacture chemicals that are needed to make Kevlar vests that protect our troops and cops.

Therefore, DEP will continue to issue and renewal permits for highly polluting industrial chemical manufacturing facilities, including facilities like Khuene Chemical (and the rest of the “Fatal Fifteen”), that handle extraordinarily hazardous chemicals that could kill thousands of nearby residents.

f) There is a compelling public need to provide energy. Because the bill completely ignores climate change, greenhouse gas emissions, and energy policy, DEP will continue to issue and renew permits for major fossil fueled energy facilities, including pipelines, compressor stations, generation stations, and LNG/oil/gas storage and refining facilities in EJ communities.

g) The pharmaceutical industry will argue that there is a compelling public need to manufacture drugs and consumer products. Therefore, DEP will continue to issue and renew permits for polluting manufacturing facilities.

h) The NJ BIA, Chamber of Commerce, and trade unions already argue and now ill be given a legal basis to argue that there is a compelling public need to provide jobs and local tax ratables, especially over the next decade in a post COVID-19 depressed economy.

DEP will be pressured to accept these economic argument in virtually every EJ permit review process.

The compelling public need waiver is certain to be litigated and courts are very likely to interpret this loophole broadly – as it is written – and in a very pro-business anti-EJ/public health/environmental way. That could create a deadly statewide precedent that actually makes current conditions worse!

Just look at how the NJ Supreme Court struck down Newark’s Police Citizen Review Board subpoena power.

3. Permit Renewals

The final version of the bill narrowed a huge loophole. The bill previously exempted renewals of existing permits (and existing pollution) from the new EJ review process.

The final version has included permit renewals, but DEP power is limited with respect to renewals. DEP may not deny renewal of an existing permit, regardless of whether or not the pollution creates unacceptable impacts. DEP may only impose conditions on permit renewals. There are no specifics provided in the bill about what these conditions may be or how they are related to offsetting the pollution from the renewed permit.

Those are serious flaws that will limit DEP’s ability to protect EJ communities, who suffer disproportionate and unacceptable pollution from existing DEP permitted facilities.

4. The Bill Has Major Loopholes

• Toxic sites are exempt. This makes no sense because there are many toxic sites – from dry cleaners and gas stations to major industry sites – and those sites significantly impact communities via toxic chemicals discharged to air, soil, and water and vapor intrusion into buildings.

• Hospital medical waste incinerators are exempted regardless of pollution impacts. Hospital incinerators are highly polluting, because they: a) burn lots of plastic (the combustion byproducts from chlorinated plastics are highly toxic, including dioxin and furans); b) are located in dense populated areas; c) have poor combustion (e.g. they fail to maintain high temperatures and long residence times); d) ineffective pollution controls; and e) their low smoke stacks heavily pollute nearby dense populations. These incinerators should be she down immediately, not exempted from review.

• Greenhouse gas emissions are exempt. This ignores the climate emergency and the fact that EJ communities suffer disproportionately from climate impacts, especially from air pollution and extreme heat & urban heat island effects. This is an unforgivable missed opportunity to reduce GHG emissions as well at mitigate climate impacts in urban NJ.

(and I believe we need to go “Beyond the Green New Deal” to respond to the climate emergency)

5. Local Authority Stripped

The final version of the bill eliminated local power to block DEP permits, a strong provision that was included in the original version of the bill.

This stripped people and local governments of real power and forcing exclusive reliance on DEP decisions

We can do better than this.

The BLM activists must not be sold out or sold short.

No Changes To DEP “Environmental Redlining”

Despite being a longtime advocate of incorporating environmental justice in DEP regulatory programs, I have written several critical posts about the proposed environmental justice bill now of Gov. Murphy’s desk (to read the final version of that bill, see S 232 [2R]).

These posts largely have focused on politics, legislative history, and broad policy issues.

There have been two conflicting versions of the bill this legislative session and both bills have been amended significantly during the course of legislative consideration.

Therefore, given my prior focus and the amendments to the bills, today I’d like to drill down on the substance of the final bill now before the Gov. and talk about what the bill would do and fail to do.

This is part one, where I lay out the major science, regulatory, and policy flaws.

I)  Current Science and Regulatory Requirements Are Ignored

At the outset, let me state the most fundamental flaw in the legislation: the bill completely ignores the current underlying scientific, technical, and regulatory bases that DEP considers in granting the air pollution permits, water pollution permits, land use permits, chemical hazards, drinking water, and toxic site cleanup requirements that are allowing the disproportionate pollution burdens to harm environmental justice communities.

Any serious EJ legislation would have to mandate that DEP change the way it regulates and issues permits.

For example, the key DEP technical and regulatory standards and grounds for issuing air pollution permits include:

• “advances in the art of pollution control” – also known as “state of the art” or SOTA
• risk assessment, including “acceptable risk” and how DEP considers cumulative impacts and disproportionate burdens
• air quality modeling
• emissions monitoring (at the stack)
• ambient air quality monitoring (at the fence line and in the community)
• mitigation and offsets
• a host of legal thresholds & standards for what facilities, processes, chemicals, emissions (potential/actual/fugitive/lifecycle), ambient air quality, and the kind of impacts that are regulated

None of this is a mystery to DEP, Chairman Smith (bill sponsor), or to the environmental justice advocates who negotiated the legislation.

Similarly, a federal judge examined exactly how DEP issued permits and issued an opinion that made extremely harsh critical findings, see:

• 18 Years After Scathing Criticism By Federal Judge For Ignoring “Environmental InJustice”, NOTHING HAS CHANGED AT NJ DEP

In fact, DEP conducted specific research on urban air quality, EJ, and cumulative impacts in Paterson NJ that closely examined all these air permitting issues. I criticized that effort, see:

• DEP Holds Private Briefing with Mayor Today on Paterson Air Study
• DEP Guts Science on Cumulative Cancer Risks in Paterson NJ
• Something Is Rotten in the City of Paterson, NJ

Among the “rotten” things I found were that DEP suppressed findings of that Paterson study, regarding:

• elevated rates of respiratory disease, especially in children
• local industrial emission “hot spots”, located close to homes and schools
• the community was provided a false rationale as to why Paterson was selected for the study
• relationship to prior Camden Pilot study and Environmental Justice concerns
• DEP suppressed consideration of cumulative impact risks presented in the draft report
• DEP downplayed the risks to minimize public health concerns –  DEP spun the health risks to the community
• DEP failed to release industrial emissions inventory
• DEP sanitized Report findings of flaws in DEP air permit database and permit program
• DEP has conducted limited to no followup source track-down investigations and air permit and enforcement to mandate emissions reductions and reduce risks

What is a mystery is how all this could have been completely ignored in the legislation.

Instead of applying the federal judge’s findings and the knowledge gained by DEP’s Paterson cumulative impact/EJ research by amending and reforming these specific technical frameworks that are the causes of the DEP regulatory failures that allow EJ communities to be unduly burdened, the bill relies on a vague, standard-less, undefined and novel “environmental justice impact statement” review process.

The bill grafts an Ill defined and novel process on a seriously flawed substantive DEP permit foundation.

It won’t work.

II)  Lack of Standards To Guide Environmental Justice Impacts Statements Invites Abuse

The “environmental justice impact statement” will be written by the polluter (permit applicant). Th EJ review process will become just another technocratic manipulative process – similar to the current “environmental impact statement” and the “regulatory impact statement” requirements that have become boilerplate and ignored, or – at best – fodder for bargaining and corrupt deal making (e.g. see the Newark Ironbound Community Corporation deal with the Covanta Newark garbage incinerator, brokered by former Newark Mayor Cory Booker.

It amounts to a corporate shakedown that ICC was involved in. The deal provided cover for DEP to renew the permit (instead of shutting it down) and allow the garbage incinerator to continue to pollute in exchange for:

Community Benefits

Environmental Program Funding: [Newark Energy Center] NEC agreed to fund a total of $7 Million Dollars in environmental programs:

Imagine that: a garbage incinerator is allowed to continue to poison a community in exchange for, among others,

• $5 Million Dollars for renovation of Ironbound Stadium

III)  No Standards to Guide DEP Permit Decisions

But the flaws of the bill are not limited to the environmental justice impact statement.

Here is the broad and vague finding and “standard” that DEP is directed to apply and upon which DEP may deny or condition a permit:

a finding that approval of the permit  as proposed, would, together with other environmental or public health stressors affecting the overburdened community, cause or contribute to adverse cumulative environmental or public health stressors in the overburdened community that are higher than those borne by other communities within the State, county, or other geographic unit of analysis as determined by the department

There are no legislative or scientific standards (numeric or narrative) or analytical methods provided in the bill to define, measure, and assess critical novel issues, including:

• public health stressors
• overburdened community
• cumulative environmental or public health stressors
• cause or contribute to
• geographic unit of analysis
• unacceptable risk or impact thresholds or standards

These are all highly complex and controversial scientific and policy issues. And DEP would be flying blind under this legislation.

That invites regulatory gridlock and successful litigation by lawyered up polluters – all while raising false expectations and manipulating the community.

The bill simply will not work without including substantive (preferably numeric) standards – or even a reference to scientific literature or regulatory policies or related legislative  standards.

In Part II (coming soon), we lay out 10 specific flaws with the bill.

[End Note: I was a victim of exactly the same politics and legislative draftsmanship by Senate Environment Committee Chairman Bob Smith in passage of the Coastal and Ocean Protection Council legislation.

In our first meeting where we pitched the bill to Senator Smith, he agreed  to sponsor it, but under 2 conditions:

1) the Council would have no regulatory powers, especially regarding land use;

2) the bill would not amend any environmental law (e.g. CAFRA), provide any new regulatory authority to DEP, or mandate that DEP do anything. The Council was to be a purely advisory body.

The difference is that – unlike the EJ advocates today – we never exaggerated the impacts of the bill; never misled the public; or compromised our principles or integrity and bargained away anyone’s health or community. ~~~ end]

NJ Gov. Murphy’s DEP Commissioner McCabe Plays EJ “Stakeholders”

Smoking Gun Trump EPA Briefing Document On Rahway “Research” Reveals DEP Lies

Today, we go into the weeds of a Trump EPA briefing document on the controversial Rahway incinerator PFAS “research” project (provided by an EPA whistleblower, and made available upon request) to show how the Murphy DEP is flat out lying and manipulating environmental justice advocates.

See what DEP and Commissioner McCabe knew about the Rahway “research” way back in April 2020, but kept secret: (Source: US EPA Briefing):

Unfortunately, the NJ media has completely missed this story (e.g. regarding the EPA’s deregulatory objectives; by falsely claiming that States requested it when EPA initiated it through the National Defense Authorization Act (NDAA); and DEP’s supporting role) despite being provided with the EPA briefing document that documents the real story. Follow.

The photo above is from a DEP January 17, 2019 press release: (my emphasis)

PUBLIC COMMENT SESSIONS SET ON MURPHY ADMINISTRATION PLAN FOR
IMPLEMENTING ENVIRONMENTAL JUSTICE IN STATE ACTIONS

(19/P005) TRENTON – Following through on Governor Phil Murphy’s pledge that New Jersey take steps to ensure all residents live in a clean and healthy environment, the Department of Environmental Protection today released a plan on how that goal will be achieved across state agencies, Commissioner Catherine R. McCabe announced.

The DEP will hold a 60-day public comment period to receive input on the proposal. Three listening sessions are scheduled in the northern, central and southern regions of the state for the public to comment on the plan.

“Environmental justice is a critical concern for all state agencies when making decisions that will impact communities long overburdened by sources of pollution and the resultant health impacts,” Commissioner McCabe said. “Every New Jersey resident, particularly those in our most vulnerable populations, deserves to live in a clean and healthy environment. Our quality of life depends on it.”

Governor Murphy signed Executive Order No. 23 on April 20, 2018, directing the DEP to take the lead in developing a plan for how all executive branch departments and agencies should consider environmental justice in implementing statutory and regulatory responsibilities.

“New Jersey’s urban communities are disproportionally impacted and overburdened by harmful effects from pollution,” said Zachary Lewis, chairman of the DEP’s Environmental Justice Advisory Council. “A greater emphasis must be made to provide clean and healthy environments and ensure that sound environmental policies are at the forefront in the decision-making process.”

This is public relations, news management, and blatant cynical co-optation of environmental justice advocates.

Commissioner McCabe apparently was “listening” so closely to the EJ Advisory Council’s concerns that she was shocked that the Rahway community would feel betrayed and outraged when they learned that McCabe’s DEP was working behind their backs and had secretly approved a Trump EPA plan to conduct “research” on the burning of toxic  perflourinated chemicals at the Rahway garbage incinerator that is poisoning their already over-burdened community.

After DEP blamed the community for being misinformed, then even after the intense public outrage, DEP doubled down and still supported the fiasco.

 “He [DEP’s LaTourette] said New Jersey is still interested in helping the EPA understand the science of disposing of PFAS chemicals,

This has very little to do with “science” and Mr. LaTourette and DEP Commissioner McCabe clearly know that (see below).

Going even further into the Orwellian night, here’s how McCabe’s spokesperson responded, with a boatload of even more lies and spin: (emphasis mine, NJ.com story)

“As important as the science is to us, our relationship with, our connectivity to and our investment in serving our vulnerable communities is just as strong,” LaTourette said.

Covanta had taken the lead on local outreach, according to the EPA, which added that the company had contacted “local officials, representatives of the Rahway City government and residents.”

LaTourette said the controversy has been instructive for DEP, and the state plans to try harder to maintain community engagement on sensitive issues moving forward.

“Even when we do not own the issue, whether it is a piece of research or a permit, at the federal or local level, nevertheless, we own and are invested in the relationships with the advocates and the community members,” LaTourette said.

Each of the boldfaced text is either a false or misleading claim.

I)  Some inconvenient facts:

1. There was no “meaningful involvement” by the community, no “relationship”,  and no DEP “investment” in the DEP’s decision to approve the Trump EPA “research”.

2. “Environmental justice” was not “at the forefront in DEP’s decision-making process”.

3. There was no consideration by DEP of impacts on an already “overburden” EJ community.

4. In fact, the EPA “research” had very little to do with “science” and was driven by a policy to rollback strict hazardous waste management regulations (which are costly to comply with) to allow the burning of highly toxic PFAS chemicals in local garbage incinerators.

5. Make no mistake: the Rahway fiasco is directly the result of DEP Commissioner McCabe’s failures. McCabe clearly owns the problem. Mr. LaTourette is lying.

6. DEP had no “investment” in or relationships with the community. Just the opposite.

DEP allowed a private corporate polluter- Covanta, the operator of the Rahway incinerator – to control the “public process” and “community involvement” (referred to as “local outreach”).

Get that? Covanta in control of informing the public!

7. DEP conducted their reviews of and approved the Trump EPA “research” in secret.

8. At the time this “research” was being considered by the DEP, the DEP also was reviewing the renewal of the Covanta air pollution permit, which was scheduled to expire on June 30, 2020. 

The “research” was not incorporated in the Covanta air permit and the community knew virtually nothing about DEP’s pending renewal of that permit.

II) Let me document the inconvenient facts not already documented by the media.

The Trump EPA’s objectives for conducting the “research” and the DEP role have been misrepresented my the media so badly as to suggest – absurdly –  that DEP was proactive and did the right thing by urging EPA to cancel the “research”.

When the story broke and the community was outraged, the DEP misrepresented the objectives of the EPA “research” and DEP’s support for it:

If the [EPA/Covanta] study shows that municipal incinerators are not effective at destroying PFAS, LaTourette said there would be new urgency to find new solutions to the trash problem. “If that is happening, we must know it and we must design the technology and the regulatory structure and the processes to stop it,” he said

Neither DEP or EPA were seeking to strictly regulate PFAS emissions from garbage incinerators or “stop it” (what scientifically precise language!). Just the opposite.

NJ DEP (and US EPA) have detailed technical regulatory requirements about waste incineration, including: characterizing the chemical composition of waste burned in garbage incinerators; monitoring the conditions and chemistry of combustion; and monitoring emissions from the stack. NJ DEP has expert experience and a rich history in this scientific and regulatory work, e.g. NJ DEP was one of the first, if not the first, to regulate mercury emissions from garbage incinerators.

But DEP did not conduct research and set those mercury emission standards in secret, behind the community’s back. The DEP Commissioner Scott Weiner created a Mercury Task Force (with public and ENGO members) and held numerous public hearings. Technically, DEP characterized the mercury content of municipal waste and analyzed stack emissions. They did not seek to inject mercury surrogates into the garbage incinerator.

If the EPA “research” was designed as Mr. Latourette describes (e.g. to improve public health protections and strictly regulate PFAS emissions), then the research design would have been very different and in accordance with NJ DEP requirements.

Mr. LaTourette surely knows this – as well as the EPA’s own briefing document which reveals the “research” objectives – which show that he its lying (or incompetent).

1. McCabe owns the Rahway/EPA/Covanta project. Period.

McCabe spent many years at EPA, including a stint as Acting EPA Administrator, so she knows exactly how EPA operates (DEP website bio):

She served at EPA from 2005 to 2017 as the Principal Deputy Assistant Administrator for the Office of Enforcement and Compliance Assurance (2005-2011); as a judge on EPA’s Environmental Appeals Board (2011-2014); and as Deputy Regional Administrator of EPA’s Region 2 office in New York City (2014-2018). In 2017, she served as the Acting Administrator of EPA (January and February) and as Acting Regional Administrator of EPA Region 2.

McCabe surely knows – after over 100 regulatory rollbacks and a systematic massive attack on and denial of science – that the Trump EPA has a pro-corporate anti-regulatory agenda that completely ignores or denies science.

If McCabe is not aware of this reality then she is incompetent. If she is aware of it, her incompetence rises to malfeasance. Either way, she must resign.

Additionally – and very relevant – is the fact that McCabe is a longtime leader in a group called “ECOS”, for Environmental Council of The States. McCabe is EPA Region 2 representative (representing the states of NY & NJ and territory of Puerto Rico).

The reason that ECOS is key is because the EPA PFAS “research” was coordinated with States via the “Environmental Council of States” (ECOS).

According to EPA ECOS briefing documents (provided upon request), the EPA held a PFAS Bimonthly conference call with ECOS on April 27, 2020, titled: 

USEPA PFAS THERMAL TREATMENT & METHODS RESEARCH – OPPORTUNITIES FOR COLLABORATIVE INCINERATION FIELD TESTING

EPA’s objectives in this “research” was targeted at allowing local garbage incinerators to burn PFAS. EPA wrote:

Hazardous Waste Incinerators and cement kilns may well be effective, but what about Municipal Waste Combustors and Sewage Sludge Incinerators (lower temperatures)?

That EPA objective is scientifically absurd from the get go, because EPA knows that “lower temperatures” lead to “incomplete combustion” and the formation of highly toxic “products of incomplete combustion” (PICs).

EPA”s own PFAS Action Plan (Feb. 2020 Update) focuses on “high temperature incineration“, not the much lower temperatures present in garbage incinerators:

Treatment and Disposal Research

The agency also has numerous PFAS treatment and disposal research projects underway, including on high temperature incineration and other methods. The agency is collaborating with other federal partners, including the Department of Defense, on efforts to increase the agency’s understanding and availability of treatment technologies for PFAS, including analytical methods. Under the NDAA for Fiscal Year 2020, EPA will work to publish interim guidance on the destruction and disposal of PFAS within one year and publish revisions every three years after that.

The EPA’s real “problem” is driven by the facts that:

a) “Hazardous Waste Incinerators and cement kilns” are far more effective in PFAS “destruction and removal efficiency” (DRE), but they cost significantly more than garbage incinerators; and

b) PFAS are required to be managed as hazardous waste under current EPA regulations.

Trump EPA “friends” in the Pentagon and corporate polluters like Dupont have tons of PFAS wastes to dispose of and face billions of dollars in disposal costs if they are required to manage PFAS as hazardous waste under current EPA regulations. At the same time, other Trump EPA corporate friends that burn garbage, like Covanta, would profit from a huge new market in burning millions of tons of PFAS as their dinosaur garbage incinerators.

EPA’s ECOS call briefing reveals that the “research” is intended to “support” EPA regulatory programs (i.e.EPA’s Office of Air Quality Planning and Standards (OAQPS) and Office of Land and Emergency Management (OLEM) and was paid for by and targeted at the Pentagon:

EPA ORD is supporting OAQPS and OLEM to provide incineration guidance as part of the National Defense Authorization Act.

Rollback of EPA’s hazardous waste management regulations to allow burning PFAS at garbage incinerators would be a twofer: it would provide billions in profits to corporate polluters like Covanta, while reducing billions of dollars in corporate polluter and Pentagon disposal costs.

The EPA regulatory objectives are made clear in there conference call to ECOS:

PFAS emission measurement methods are needed to inform regulatory decisions

EPA makes clear and states the regulatory objective multiple times in their ECOS briefing:

field characterization would help inform this process and provide a fundamental opportunity to better understand PFAS thermal treatment behavior in sources of regulatory interest.

Specifically, these tests would seek to:

• • Investigate how well thermal disposal processes such as hazardous waste and solid waste incinerators work for PFAS waste.
• Investigate whether surrogate Principal Organic Hazardous Constituents (e.g. CF4, C2F6) be used in emission tests to ensure PFAS compounds would be adequately destroyed. If so, what demonstrated Destruction and Removal Efficiency would be required?

The EPA ECOS PFAS initiative is led and coordinated by EPA. But it is NOT a science driven exercise, as demonstrated by EPA’s own briefing document and the fact that the EPA Office of Research and Development is coordinating the project with EPA’s regulatory programs.

DEP Commissioner McCabe knows all this – and more.

She owns it.

And for her betrayal, denial of responsibility, co-optation and manipulation of the EJ community, and outright lies, McCabe must resign.

Context Belies Gov. Murphy and DEP Claims

EJ Advocates Are Making A Huge Strategic Mistake

(Part I)

We need to establish the context, before the Murphy propaganda machine frames the issues.

A seriously flawed bill purported to promote “environmental justice” has passed both houses of the NJ Legislature and is now on Gov. Murphy’s desk.

The Assembly resolved some of the flaws I previously noted by passing the Senate version (S232 [2R]) on August 27, 2020. But the bill remains seriously flawed. (see also:

• Gov. Murphy’s “Environmental Justice” Legislation Would Do Nothing To Reduce Current Pollution or Unjust Disproportionate Burdens In Minority Communities
• Now Is the Time To Make Real Demands On Environmental Justice Legislation
• 18 Years After Scathing Criticism By Federal Judge For Ignoring “Environmental InJustice”, NOTHING HAS CHANGED AT NJ DEP

All of this, of course, was ignored by NJ Spotlight coverage and the deeply compromised NJ based EJ cheerleaders who supported the bill.

Even worse, NJ Spotlight’s story affirmatively misleads readers about all the problems with the bill. Reporter Tom Johnson did that by posting a link to the introduced version of S232, not the 2R version that the Assembly passed.

For those that don’t follow the legislative process, a “2R version” means that the bill was substantively amended TWICE. Those amendments weakened an already gutted bill, as I’ve previously written.

And in an Orwellian twist, NJ Spotlight – who had ignored the legislative history until I made that history clear – now reports favorably on a 10 year long process of gutting the original version of the bill (emphasis mine):

The legislation, sought for by the environmental-justice community for more than a decade, is viewed by advocates as one of the strongest measures in the country to give local communities the ability to fight new power plants, incinerators, and manufacturing facilities within their borders.

Let me provide an historical analogy and a thought experiment to illustrate the problem with this “decade”.

The 1965 Voting Rights Act was introduced just days after the nation witnessed viscious police attacks on civil rights protesters. The bill was a direct response to those attacks and a result of the work of the Civil Rights Movement:

On February 18 in Marion, Alabama, state troopers violently broke up a nighttime voting-rights march during which officer James Bonard Fowler shot and killed young African-American protester Jimmie Lee Jackson, who was unarmed and protecting his mother.^[21]:265[24] Spurred by this event, and at the initiation of Bevel,^{[21]:267[22][23][25]:81–86} on March 7 SCLC and SNCC began the Selma to Montgomery marches in which Selma residents proceeded to march to Alabama’s capital, Montgomery, to highlight voting rights issues and present Governor George Wallace with their grievances. On the first march, demonstrators were stopped by state and county police on horseback at the Edmund Pettus Bridge near Selma. The police shot tear gas into the crowd and trampled protesters. Televised footage of the scene, which became known as “Bloody Sunday”, generated outrage across the country. […]

[Senate sponsor] Dirksen did not originally intend to support voting rights legislation so soon after supporting the Civil Rights Act of 1964, but he expressed willingness to accept “revolutionary” legislation after learning about the police violence against marchers in Selma on Bloody Sunday.

For our purposes of analogy, given this history, could you imagine if at the time some so called “civil rights leaders” praised and supported a weak version of a Voting Rights Act bill that was drafted and negotiated 10 years prior to Bloody Sunday?

A bill that was drafted before the Civil Rights Movement gained enormous public support?

Well, that’s exactly what NJ’s so called “environmental justice” leaders have done.

They are applauding and supporting a weak bill that was negotiated and drafted 10 years before the Black Lives Matter movement emerged, and then weakened over this 10 year period.

A bill drafted ten years before the police murder of George Floyd sparked a nationwide rebellion and created political space to advance real progress, not compromised ineffective bullshit.

Why are NJ EJ “advocates” supporting this compromise bill?

Why don’t they demand far more?

They are not only missing the moment, they are betraying their alleged cause.

(Part II tomorrow – we’ll call it “Tuskegee II”):

• DEP secretly OK’s chemical experiment in Rahway, then feigns surprise by community outrage, then blames the community.
• Orwellian “News Management” – to divert from the Rahway disaster, DEP and AG announce token EJ lawsuits.
• How will Gov.Murphy spin all this when he signs the bill?
• How and why will EJ advocates respond?

 

Gov. Murphy’s DEP Commissioner McCabe and her political hatchet man Sean LaTourette must resign and apologize to the people of New Jersey.

First, they secretly worked with and approved a Trump EPA “research” project at the Rahway NJ garbage incinerator. Rahway is a heavily poor and minority “environmental justice” community already overburdened with pollution.

The Trump EPA project was designed to understand the combustion of a family of toxic chemicals knows as PFAS.

Because Dupont and the Pentagon have huge quantities of these toxic chemicals that must be disposed of, the overall objective of this EPA research was almost certainly to promote the burning of PFAS waste in municipal garbage incinerators – a totally unacceptable and low cost and highly polluting disposal alternative.

Regardless of the scientific merits or policy objectives of this research, it is grossly unprofessional, likely illegal, and a totally unforgivable breach of trust for a regulatory agency to operate like that in secret.

Just as bad, it shows bad faith and extremely poor political judgement – at a time when US cities are literally on fire with BLM protests – for DEP to secretly work with EPA and the Rahway incinerator company Covanta and approve a chemical research project with public health implications in an EJ community.

DEP’s behavior was morally repugnant.

When former EPA Region 2 Administrator Judith Enck blew the whistle on this research, of course, the public, the Rahway community, and EJ advocates were outraged. Of course, the media wrote extremely negative stories and – because the project had been kept a total secret and was designed behind the community’s back – of course social media exploded.

Second, in response to public outrage, DEP Commissioner McCabe and Mr. Latourette blamed the public. (NJ Spotlight)

LaTourette said protesters, particularly in New Jersey’s environmental justice communities, had “misperceptions” about what the incineration would consist of, and misplaced fears that the experiment posed a risk to public health.

“Bad information can sow mistrust, and it can sow a misunderstanding of the facts that can lead folks to think that they are in danger of being harmed, and that’s the last thing we want,” he told reporters.

HOW THE HELL IS THE PUBLIC SUPPOSED TO KNOW ANYTHING WHEN DEP DOES THINGS IN SECRET?

McCabe and LaTourette must resign and apologize, NOW. They have lost credibility and the trust necessary to lead a public agency.

For the record, on August 22, 2020, I first learned of this scandal and immediately wrote DEP Commissioner McCabe this email, demanding that it be terminated and the Covanta garbage incinerator permits be revoked.

According to DEP records, the Covanta permit expired on June 30, 2020, so it looks like this whole scheme was developed when their air permit was being reviewed by DEP, which, from a regulatory perspective, is another huge example of misconduct.

On 08/22/2020 7:05 PM Bill WOLFE <bill_wolfe@comcast.net>  wrote:

Dear Commissioner McCabe:

Today I became aware of EPA sponsored and NJ DEP approved “research” regarding combustion of PFAS surrogates at the Covanta garbage incinerator in Union, NJ, see:

https://www.nj.com/news/2020/08/proposed-rahway-incinerator-study-could-help-us-deal-with-toxic-chemicals-activists-wonder-if-its-safe.html

Before I can intelligently make informed objections to the substantive merits of this proposal, I must raise serious procedural defects with this proposal that must be remedied before further consideration or implementation of this proposed “research”.

1. The proposed research is not incorporated and certified by NJ DEP, as required, in the Union County Solid Waste Management Plan. See the DEP’s documents:

UNION COUNTY DISTRICT SOLID WASTE MANAGEMENT PLAN ADMENDMENTS (SIC), CERTIFICATION AND ADMINISTRATIVE ACTIONS

https://www.nj.gov/dep/dshw/recycling/admentme/20county.htm

2. The proposed research is not included in the NJ DEP and US EPA approved air control permits for the Covanta facility.

There are no parameter specific air pollution monitoring and control or emission limits.

There was no air quality modeling or quantitative risk assessment conducted, as required by NJ DEP regulations.

There was no public notice, public hearing or opportunity for public comment on the proposed “research” as required by applicable NJ DEP regulations.

3. The proposed research may trigger NJ DEP “hazardous waste facility” and hazardous waste incinerator air pollution control and HW treatment and disposal facility permit requirements under EPA delegated federal RCRA and the HSWA of 1984, as well as NJ’s State hazardous waste management regulations.

The DEP apparently conducted no review or consideration of these regulatory requirements and no public participation process prior to “approval”.

4. In addition to these gross regulatory failures, the entire concept of conducting “research” on combustion and air emissions of hazardous substances at a commercial solid waste facility located in and polluting an environmental justice community is morally repugnant.

I make the following demands:

1. Please reverse and over-rule the DEP’s prior “approval” of this “research”.

2. Then please publicly apologize for secretly reviewing and approving this “research”.

3. Then revoke the NJ DEP air permits for the Covanta garbage incinerator, which I understand expired on June 30, 2020.

4. Please provide a public notice and link to the underlying technical documents and full administrative record on this proposed “research.

I look forward to your timely and favorable reply.

Respectfully,

Bill Wolfe