Middlesex County sewage treatment plant

Today DEP held the last informal “stakeholders meeting” on water pollution control enforcement regulations, one of 12 major environmental rules targeted and blocked by Governor Christie’s moratorium and “Red Tape Review” process.

In another disturbing scene, DEP  regulators were brought under pressure by industry lobbyists to be more “business friendly“. This time the focus was on industry efforts to pressure DEP to relax a range of compliance and enforcement policies and practices, from facility inspections, to record-keeping, to monitoring and reporting, through mandatory enforcement fines and penalties.

However, the stunning success of NJ’s Clean Water Enforcement Act provides perhaps the clearest example of why the Christie Executive Order and Red Tape Review attack on DEP regulations and environmental protection are so ill conceived.

Oversight of polluting industries by DEP inspection and enforcement are necessary to assure protection of public health and the environment. Strict DEP enforcement maintains a level playing field so that good actors that comply are not placed at an economic disadvantage by unscrupulous businesses, and serves as a deterrent to violations of water pollution laws.

Here’s how DEP justified the enforcement rules (see: Water Pollution Control Act – N.J.A.C. 7:14-2 and 8 – readoption without amendment) – it is pretty clear that enforcement is significant and that stringent oversight must be maintained:

The Department anticipates that a positive environmental impact will result from the rules proposed for re-adoption at N.J.A.C. 7:14-2. The construction of wastewater treatment facilities is essential to the future of New Jersey. These facilities serve many purposes, including the removal of pollutants from raw sewage prior to discharge to the State’s waterways and the protection of the public health. In turn, these facilities help maintain the recreational and ecological attributes of the waterways, such as swimming, shell fishing and other activities.

The rules proposed for re-adoption at N.J.A.C. 7:14-8 will continue to have a positive environmental impact because the rules serve as a strong deterrent to those who would violate New Jersey’s water resources statutes and the rules provide the regulated community with the incentive to conduct their activities in conformance with the Department’s rules. … [...]

The rules proposed for readoption at N.J.A.C. 7:14-8 contain requirements or standards that exceed Federal requirements or standards. New Jersey’s Water Pollution Control Act, as amended by P.L. 1990, c.28 (see N.J.S.A. 58:10A-10), exceeds the Federal program by requiring that mandatory minimum penalties be assessed for certain types of violations and imposes restrictions upon settlement of these violations. … The Federal statute at 33 U.S.C. §1319(g) provides the United States Environmental Protection Agency with the authority to assess administrative penalties, but there are no
mandatory minimums or settlement restrictions set forth therein. …[...]

The Department has determined in order to protect public health and the environment from the pollutants in wastewater, that it would not be appropriate take into consideration the size of the business involved in the construction of wastewater treatment facilities. The Department has balanced the need to protect the environment against the economic impact of N.J.A.C. 7:14-2 and has determined that to minimize the impact on small businesses would endanger the environment, public health and public safety. No exemption from coverage, therefore, is provided.

But Governor Christie’s Executive Orders 1-3 have a very different policy in mind than that articulated above by DEP.

The Christie EO’s seek to relax NJ’s stricter State standards to federal minimums. They seek waivers from requirements and to inject economic compliance cost considerations as a rationale to rollback DEP standards, without adequate consideration of the environmental and public health benefits of those protections. In fact, Christie has not even attempted to define a methodology for conducting cost benefit analysis and DEP has no capacity to conduct such analysis, yet his Orders mandate CBA. Reversing 35 years of practice, the Christie EO’s place control of these science and legal decisions not in independent and expert DEP hands, but in a politicized Regulatory Czar in the Lt. Governor’s Office.

The new requirements of Christie’s Orders, the moratorium, and the “Red Tape Review” process have created multiple opportunities for polluters to advocate for weakening regulations and enforcement.

Today’s discussion began with polluters pressuring DEP to apply enforcement discretion in a way to soften the seriousness of the enforcement response and reduce fines and penalties.

DEP’s enforcement policy and penalty matrix is based on the conduct of the polluter (e.g. repeat offender?) and the seriousness of the violation in terms of its impact on the environment. From there, the industry attack on DEP enforcement was expanded to urging DEP to do even more compliance assistance and shift to voluntary compliance, then to self disclosure penalty mitigation/audits in lieu of DEP inspections, and even to a radical privatized self certification approach. So, if nothing else, the process opened the door to more enforcement policy rollbacks.

In contrast, to countervail this industry pressure, I offered numerous suggestions on how DEP could incorporate environmental metrics in DEP program performance evaluations and how DEP could include economic business considerations into enforcement.

Constructive ideas offered ranged from consideration of public health and environmental benefits as a basis for enforcement policy, to quantifying fines and  penalties based on the economic benefit a polluter actually gains from violating environmental laws.

For example, polluters often consider enforcement fines merely a cost of doing business. Deterrence is measured economically by this formula:

(probability of detection) X (magnitude of the penalty) = economic deterrence

If compliance cost $1 million, but the probability of DEP detection is 1 in 10 (10%) and the fine is $50,000, then it ALWAYS pays to pollute.

DEP should set fines at a level to capture 100% of the economic benefit of violation. This would provide economic deterrence.

But those suggestions were summarily rejected by DEP.

I also asked about enforcement of NJ’s number 1 water quality pollution problem, especially in NY/NJ harbor. This is caused by uncontrolled discharge of raw sewage from combined sewer overflows when it rains. This is known as CSO.

Amazingly, I was told that DEP does not use enforcement tools to solve this problem.

Now there’s an enforcement issue that warrants attention from the advocate community. But unfortunately, the lead ENGO representative literally left the room when this issue was broached at the end of a long meeting (that was largely mis-focused on the minutia of underground storage tank requirements).

Now how strange is that?

Trenton water filtration plant on Delaware River

Stalled Drinking Water Protections Opposed by Superfund Toxic Polluter and NJ Realtors

The Department of Environmental Protection (DEP) held a “informal stakeholders meeting” today to discuss three Safe Drinking Water program regulations frozen by Governor Christie’s Executive Orders.

We previously wrote about 1 of these rules, the drinking water standard (Maximum Contaminant Level (MCL)) for the chemical perchlorate (see: “Christie Rule Freeze Kills Drinking Water Standard for Chemcialc Found in Rocket Fuel & Explosives”

But in addition to the perchlorate MCL, the Christie freeze jeopardized NJ’s entire safe drinking water program. Because NJ has “primacy” under the federal Safe Drinking Water Act, the ill conceived Chrisite moratorium could force US EPA to intervene in NJ and take over implementation of the safe drinking water program, as well as withhold millions of dollars in federal funding support for NJ.

Background

Trenton's water supply intake on the Delaware River, just north of Trenton

NJ’s State drinking water law is far broader in scope and more stringent than the federal Safe Drinking Water Act. As a result, NJ has far lower and more protective standards for 14 chemicals, as well as tougher construction, monitoring, and enforcement programs. In addition, NJ’s Private Well Testing Act protects home buyers and sellers by requiring that private drinking water well sampling results and any exceedence of MCL’s be disclosed by the seller during real estate transactions. This disclosure leads to better protection and safer  drinking water.

These rules should never have been targeted and listed in Executive Order #1.

NJ has a federally delegated and funded drinking water program based on NJ’s tougher laws that are designed to protect public health. Therefore, even though they were targeted, the 3 drinking water rules should have been exempt from the Christie moratorium under the terms of the Order.

Executive Order #1, which created the 90 day moratorium, a new cost benefit analysis test and federal consistency policy, and the “Red Tape Review” process, explicitly provides exemptions for rules that impact public health and/or delegated federal programs or federal funded programs. Under EO #1, the DEP Commissioner was directed to issue recommendations to the Lt. Governor 10 days after the Gov. signed the Order regarding any rules that met the public health, safety, welfare of federal exemption criteria.

Either Acting Commissioner Bob Martin failed to do so or the Lt. Governor over-rode his recommendation.  But it is impossible to know what went on, as a result of the opaque process created by the Executive Orders.

Either possibility is bad news, because the perchlorate standard is likely to be killed, because it expires on March 16, just 24 hours after the close of the “re-opened” public comment period under the Executive Orders. But even if DEP were able to recommend adoption of the perchlorate MCL in less than 1 day to avoid the expiration, that still would expose the public comment period as a sham, because it is virtually impossible to read, evaluate and respond in writing to public comment in just one day (see: “DEP Creates Sham Process to Cover Defects in Christie Executive Orders“)

Today’s meeting

The meeting was well attended by water resource professionals, water purveyors, commercial laboratories, and environmental advocates.

DEP summarized the 3 rules and asked the following questions mandated by Executive Orders 1 and 2:

At the stakeholder meetings, the Department will be discussing the respective rule proposals in consideration of the topics outlined in Governor Christie’s Executive Orders 1, 2 and 3.  Among the topics to be discussed are:

1. Economic Analysis
   1. Effect of the proposed rules on New Jersey’s economy.
   2. Burdens on business and workers as compared with the intended benefits of the rules.
   3. Cost/benefit analysis performed by the Department as part of the proposal process, and scientific and economic research available from other jurisdictions relevant to the proposed rules.
2. Federal Standards Comparison
   1. Do the proposed rules exceed Federal standards and if so, why?
3. Process Improvement Evaluation
   1. How the proposed rules address processing time, extent of required submissions, and coordination with other programs and agency requirements.
   2. The public process used for the proposal as it relates to advance notice of rulemaking.
   3. The effect of the proposed rules on permits and applications for permits.
   4. The applicability of “waiver” provisions to the proposed rules.
4. Compliance and Enforcement Evaluation:

The performance-based nature of the proposed rules

It is obvious that these biased questions are designed to reduce the stringency (i.e. level of public health protection provided) and compliance costs of the rules.

Garden State Labs spokesman Harvey Klein was strongly opposed to any further delay in adopting the rules, and said he was would be “astounded” if DEP failed to adopt the rules as proposed. He noted several examples of why NJ’s program should be maintained, including stricter standards for arsenic, and MTBE. He also  noted that primacy provides flexibility and in some cases, lower costs due to not having to sample for chemicals not found in NJ that are targeted under the federal program for other states.

Water purveyors supported the rules, and noted the importance of public confidence in a safe water supply. They emphasized that other states modeled their drinking water programs on NJ’s and noted likely increased costs of any disruptive changed associated with delaying rule adoption.

Water companies also supported the re-adoption of the SDWA program rules. They supported the perchlorate MCL and noted that they could not recover any monitoring and treatment costs for perchlorate in water rates unless an MCL was adopted.

The labs and water purveyors opposed federal consistency, cost benefit analysis, and waivers created under the Executive Orders.

The environmental advocates supported adoption of all 3 rules without further delay.

The only technical debate of the day focused on the perchlorate standard. The minor technical concerns had been disused for years and nothing new emerged.

I asked those in the room that opposed the perchlorate standard to raise their hands.

lawyer representing toxic polluter ShieldAlloy Superfund site opposes perchlorate drinking water standard

The perchlorate standard was opposed by a NJ Realtors Assc. representative and a lawyer for a toxic polluter who created the federal Superfund site known as  Shieldalloy.

EPA recently took over control of the Shield Alloy site based on an EPA Inspector General’s Report that found massive delays in cleanup due to DEP mismanagement and failure to enforce cleanup laws – see EPA REPORT BLASTS NEW JERSEY TOXIC CLEAN-UPS — State Failures to Enforce Law Lead to Worst Delays in the Country and  FEDS PROCEED QUICKLY ON STALLED NEW JERSEY TOXIC CLEAN-UPS

The lawyer was seeking relief and weaker cleanup standards to reduce his cleanup costs and legal liability for damages caused by massive groundwater pollution. He engaged in a classic attempt to manufacture scientific uncertainty to delay and weaken regulations.

The real estate industry is worried that disclosing residential wells contaminated by perchlorate might slow down real estate deals (see this for a similar abuse by real estate interests).

So, there it is: commercial laboratories, drinking water companies, local water supply authorities, and environmental groups strongly support the rules.

They are opposed by a toxic polluter and the real estate industry.

Time for Governor Chrisite to choose side: public health protection, or toxic polluter and real estate protection.

Sound like a no brainer to me.

(Important end note: I will be submitting written comments urging DEP to move forward with regulating unregulated chemicals found in NJ waters, as well as adopting rules to implement the recommendations in a March 2009 Report by the Drinking Water Quality Institute to update and strengthen rules and regulate more toxic pollutants. We will write here on those topics in future).

The New Jersey Game and Fish (sic) Bear Response unit tranquilized a black bear in Wayne that was terrorizing the neighborhood. Wayne authorities tracked the bear to the back porch of a home on Fox Hill last week. New Jersey is expected to announce a bear-management plan.

Terrorizing the neighborhood?

The fears and smears of the terrorism label have gone too far (see NY Times editorial: “Are you or have you ever been a lawyer“).

The T word has now crept into our wildlife management thinking.

Of course, demonizing bears as “terrorists” makes it much easier to put in place a policy that allows hunters to kill them.

Valero refinery. Paulsboro, NJ

Others welcomed the proposal, including Hal Bozarth, executive director of the Chemistry Council of New Jersey. The manufacturing industry in New Jersey is being “strangled to death by regulations,” he said.[Note: Amazingly, Bozarth's brazen comment attacked DEP rules that regulate "vapor intrusion". Bozarth's client Dupont poisoned 450 homes in Pompton Lakes via "vapor intrusion", which has been associated with elevated cancer rates. Bozarth speaks with impunity, as his members literally kill NJ residents. Now how sick is that?]

The rhetoric is ramped up and the lines are sharply drawn with virtually no room to maneuver. This is a test of whether oil industry lobbyists will succeed in making the Christie “Red Tape Review Group” process devolve into a true “Death panel”.

Inflammatory rhetoric and provocative statement? Absolutely.

Accurate and fair? Certainly. Read on about the most recent environmental and public health protection under assault.

Governor Christie’s Executive Order #1 moratorium targeted and blocked 12 DEP rule proposals.

Those proposals are now undergoing political and economic review by the “Red Tape Review Group” headed by Lt. Gov. Guadagno, who has no training or expertise in public health or environmental protection (nor does any other member on the Red Tape Review Group). Pursuant to Executive Order #1, #2 and #3, Guadagno has the power to veto these DEP regulations for virtually any reason, and her final decisions are not subject to public scrutiny or judicial review.

We wrote about the DEP perchlorate drinking water standard that was killed outright by the moratorium, and the phosphorus water quality standard that was held hostage.

Today, DEP held a “stakeholders meeting” to discuss another important clean air rule blocked by the moratorium. Keeping with the war metaphor, lets call this one subject to extraordinary rendition to a black site somewhere in the Lt. Gov.’s Office.

This particular clean air rule applies to fuel oil and has been under development for over 5 years. It is part of a regional air pollution control strategy endorsed by 11 northeastern and mid-Atlantic states. DEP amended its EPA approved “State Implementation Plan” (SIP) required under the federal Clean Air Act to incorporate this strategy and set of rules back on June 16, 2008. After much delay, on November 16, 2009, DEP finally proposed new rules that would mandate steep reductions in the concentration of sulfur in fuel oil sold in NJ.

Jim Benton, NJ Petroleum Council - opposed "phase II" 2016 reductions to 15 ppm

So the oil industry has known this is coming for a long time.

Those fuel oil content reductions are required to reduce air pollution emissions to meet health based standards set under the federal Clean Air Act (see: 40 CFR 51.1002(c)(1).) Those national air quality standards were required to be met by NJ in 2010. There is no debate that the DEP proposal is technologically feasible to meet. In fact, there is pending legislation (A1054 (McKeon)/S1414 (Smith) that would mandate steeper and quicker reductions than those sought by DEP, by imposing the 15 ppm standard by 2011. The DEP rule proposal would mandate a 67% reduction in allowable sulfur, to 500 parts per million by the year 2014, and a sharper 99% reduction to 15 ppm by 2016. The proposal would have dramatic public health benefits, including reducing mortality (i.e. death).

But, not so fast. Huge Oil industry profits are at stake.

Dan Horton (L) Exxon Mobil and Renee Jones (R) Conoco Phillips, oppose DEP rules

To the applause of lobbyists for oil giants Exxon-Mobil, Hess, Conoco Phillips, and backed by cheer-leading of lobbyists for the American Petroleum Institute and the NJ Petroleum Council, the Christie moratorium has thrown a monkey-wrench into the process, disrupting years of work across the mid-Atlantic and New England region.

Despite multi-billion record profits in the oil industry, these giant corporate polluters don’t want to spend money to reduce the death rate their products cause in NJ.

The public health stakes are huge – thus the inflammatory but accurate headline. But there really are lives at stake. Here’s why DEP is requiring that sulfur be reduced: (see page 18-20 of the DEP proposal)

The health effects associated with exposure to fine particles are significant, mainly due to the fact that particles of this size can easily reach into the deepest regions of the lungs.

Significant health effects associated with fine particles exposure include:
• Premature mortality;
• Aggravation of respiratory and cardiovascular disease;
• Decreased lung function and difficulty breathing;
• Asthma attacks; and
• Serious cardiovascular problems, such as heart attacks and cardiac arrhythmia.

The USEPA estimated that attainment of the 1997 annual and daily fine particles standards nationally would prolong tens of thousands of lives each year and prevent hundreds of thousands of hospital admissions, doctor visits, absences from work and school, and respiratory illnesses in children. Individuals particularly sensitive to fine particles exposure include older adults, people with heart and lung disease, and children. The elderly have been shown to be particularly at risk for premature death from the effects of particulate matter. Health studies have shown that there is no clear threshold below which adverse effects are not experienced by at least certain segments of the population. Some individuals who are particularly sensitive to fine particles exposure may even be adversely affected by concentrations of fine particles below the revised 2006 annual and daily standards. (72 Fed. Reg. 20586-20587 (April 25, 2007), Clean Air Fine Particle Implementation Rule) The USEPA is currently reconsidering those standards based on recommendations of its Clean Air Scientific Advisory Committee (CASAC).

According to the most recent Federal and State estimates, 765,125 New Jersey residents have asthma. In 2004, asthma sufferers in New Jersey accounted for 15,679 hospitalizations, which represents approximately one out of every 50 hospitalizations. Of these asthma hospitalizations, 5,175, or about one-third, were children. There were 1,838 deaths due to asthma between 1989 and 2003 in New Jersey. The risk of death from asthma increases considerably with age, with the over-65 population having the highest rates. (see: Asthma in New Jersey Annual Update 2006. New Jersey Department of Health and Senior Services, August 2006 (click on this for document)

SO2 causes a wide variety of health and environmental impacts because of the way it  reacts with other substances in the air. SO2 reacts with other chemicals in the air to form fine sulfate particles. When these are breathed, they gather in the lungs and are associated with increased respiratory symptoms and disease, difficulty in breathing, and premature death. Peak levels of SO2 in the air can cause temporary breathing difficulty for people with asthma who are active outdoors. Longer-term exposures to high levels of SO2 gas and particles cause respiratory illness and aggravate existing heart disease. (Sulfur Dioxide: Health and Environmental Impacts of SO2/Six Common Pollutants/Air & Radiation/USEPA. (click on this for document).

Increased ozone concentrations severely affect the quality of life for susceptible populations – children, the elderly, and asthmatics – and present health risks for everyone. Exposure to ozone for several hours at relatively low concentrations significantly reduces lung function and induces respiratory inflammation in normal, healthy people during exercise. This decrease in lung function is generally accompanied by symptoms such as chest pain, coughing, sneezing, and pulmonary congestion. (The Green Book Nonattainment Areas for Criteria Pollutants, United States Environmental Protection Agency, as updated August 17, 2007. Click on this for document)

NOx, as a precursor for both fine particles and ozone, will contribute to the health impacts associated with both fine particles and ozone. Ozone exposure can cause several health effects, including irritation of lungs. This can make the lungs more vulnerable to diseases such as pneumonia and bronchitis, increase incidents of asthma and susceptibility to respiratory infections, reduce lung function, reduce an individual’s ability to exercise and aggravate chronic lung diseases.

In addition to these incredible public health benefits, even the cost benefit analysis on the rule documented HUGE net economic benefits, due mainly to all the avoided costs of health care.

Al Mannato (L), American Petroleum Institute. Jim Benton (R), NJ Petroleum Council. Oil men. The Oil industry called in the big guns.

So what’s it going to be?

Will DEP be allowed to adopt the science based rule they proposed mandating reductions to 500 ppm by 2014 and 15 ppm by 2016?

Or will oil industry lobbying of the Regulatory Czar Guadagno block all or part of the DEP proposal?

The ball is in Regulatory Czar Guadagno – and ultimately Governor Christie’s – court

To paraphrase DEP air quality experts: “If this rule proposal doesn’t pass muster under the Governor’s Executive Order review process, none will”

Bill O'Sullivan, DEP Air Quality Manager. Let's hope Bill can hold the line against high powered oil industry attack and industry friends in the Governor's Office.

We recently wrote about a drinking water standard for perchlorate – the toxic chemical found in rocket fuel, military explosives, and about 1 in 6 NJ drinking water systems - as the first casualty of Governor Christie’s moratorium.

Before that, we wrote to explain why “in the weeds” fine print of DEP regulations is so important and predicted that DEP regulations would be the target of a stealth industry and Christie campaign to rollback environmental and public health protections under the guise of promoting economic development in response to the economic crisis. Christie is even parroting the chemical industry and NJBIA slogan, “regulatory reform (see: “Corporate America’s Back Door to the Bush White House” for Christie’s playbook)).

Regulatory Czar, Lt. Gov. Guadagno

Today, we warn that a clean water hostage is taken, with Christie’s Regulatory Czar’s gun to its head.

So follow as we break this complex story down. We explain why what Governor Christie’s slogans smear as “Red Tape” and “bureaucracy“, are in reality longstanding, science based, and essential elements to protect public health and the environment.

First of all, to fully understand and respond to the threat, we need to consider the sweeping breadth and systematic nature of the Christie assault.

Christie’s Executive Orders 1-3 did several troubling things, they: 1) targeted and blocked 12 DEP proposed rules; 2) mandated a new cost benefit analysis test for those 12 and all existing rules; 3) established a new federal consistency policy that erects barriers to necessary strong rules and will rollback many; 4) created a “Red Tape Review Group” to make recommendations on those rules; and 5) empowered a Regulatory Czar that can over-ride science and DEP recommendations and veto rules.

The Regulatory Czar can veto DEP rules based on closed door meetings with polluting industries regulated by those same DEP rules. This is a flagrant violation of state and federal administrative and environmental laws, which require transparency, public participation, and accountability. These requirements are in place to achieve what the lawyers call “due process”, restrict “ex parte” intervention by special interests, and establish a formal “administrative record” that is subject to judicial review. Most importantly, laws mandate that regulatory decisions be based on law and science, not politics and/or economics.

As such, the Regulatory Czar contradicts Christie’s repeated promises to increase transparency and promote science over politics at DEP.

In addition to attacking DEP rules, so called DEP technical “Guidance Documents” have been targeted. Guidance documents interpret, implement, and are needed to enforce the rules. Guidance is often referenced but not specifically included in DEP rules. Scores of DEP Guidance documents have come under systematic attack by: 1) a targeted recommendation in the Christie’s DEP Transition Report; 2) A2464, an Assembly bill just released from Committee; and 3) a plan by DEP Acting Commissioner Bob Martin to issue a Administrative Order that would gut any implementation or enforcement of those Guidance Documents by making them voluntary and requiring that DEP could only enforce requirements explicitly included in regulations. Listen to DEP Assistant Commissioner Kropp describe Martin’s upcoming Administrative Order in March 4 testimony to the Assembly Regulatory Oversight Committee by clicking here)

The clean water rule that is held hostage also provides a perfect illustration of why DEP Technical Guidance documents are essential to enforcing environmental laws.

So, follow as I break this down.

Leslie McGeorge, DEP manages water hearing (3/5/10)

On Friday March 5, 2010, DEP held an informal “Stakeholder” meeting to seek comments on how Christie’s EO’s impact the previously proposed but now frozen surface water quality standard for phosphorus.

Phosphorus is a plant nutrient that can lead to excessive growth of algae, a process called eutrophication, which depletes oxygen in the water and kills fish and aquatic life. About 65% of NJ’s rivers and streams and 100% of lakes are eutrophic, fail to meet the phosphorus standard, and are legally “impaired” due to excessive nutrient pollution.

Too much phosphorus, mainly from pollution discharged by hundreds of sewage treatment plants, also is a serious concern for protecting drinking water supplies. Excessive algae requires additional chemical treatment by the water filtration plants. This increases public health risk of drinking water, particularly with respect to birth defects and cancer from “disinfection byproducts“. This is an acute problem in the Passaic River basin, where dozens of sewage treatment plants and industries discharge pollution directly upstream of water supply intakes. Similar but less severe problems exist in the Ramapo, Raritan, Delaware and other NJ rivers that serve as sources of water supply.

Recognizing the public health and environmental significance of reducing phosphorus pollution, in 2002, then DEP Commissioner Brad Campbell directed DEP to enforce the phosphorus standard in the Clean Water Act’s pollution control permit program known as NJPDES. Prior to that, for more than 20 years, sewage treatment plants exploited a loophole in the standard and evaded any limits on phosphorus discharge in their permits. DEP announced:

Brad Campbell, DEP Commissioner 2002-2006

On May 24, 2002, Commissioner Bradley M. Campbell announced a new phosphorus initiative at a meeting held with approximately 100 representatives of New Jersey’s publicly owned treatment works. Commissioner Campbell detailed the DEP’s direction to fully implement the numeric Water Quality Criteria (WQC) for total phosphorus. This decision was based on the large number of water bodies listed as impaired due to numerical exceedance of WQC for phosphorus, which is part of the State’s Surface Water Quality Standards (SWQS).

Excessive phosphorus in freshwater streams, lakes and rivers results in algae blooms. These blooms cause depleted oxygen levels, adverse impacts on aquatic populations, and taste and odor problems and additional treatment costs for drinking water suppliers. In 1999, approximately 62 percent of the water bodies statewide exceeded the WQC for phosphorus. The Federal Clean Water Act requires the DEP to impose limits that will prevent/eliminate the violation of SWQS. Therefore, the imposition of Water Quality Based Effluent Limits (WQBELs) in New Jersey Pollutant Discharge Elimination System (NJPDES) discharge to surface water permits is necessary.

Campbell’s order was implemented via a March 2003 guidance document known as the “Technical Manual for Phosphorus Evaluations (see: www.state.nj.us/dep/dwq/techmans/phostcml.pdf . It required a scientific study before sewage treatment plants could invoke the loophole in the water quality standard. As a result, for the first time, hundreds of sewage treatment plants were issued tough new limits on phosphorus pollution.

But the Campbell DEP crackdown caused a political backlash by local sewer authorities who legally appealed and politically challenged their NJPDES permits.

After more than 5 years of this fight, under a new Governor and Commissioner, DEP caved in to the pressure from local sewer authorities.

In April of 2009 (see 41 N.J.R. 1565(a); April 20, 2009), DEP proposed to relax the phosphorus water quality standard, essentially by reinstating the old loophole repaired by the 2003 Guidance and Campbell enforcement initiative. We blew the whistle on this. The Star Ledger reported and on July 1, 2009, wrote a killer editorial that not only nailed the issue, but ultimately forced DEP to withdraw the proposed rollback:

Phosphorus and the DEP: Keeping NJ’s Water Healthy

State environmental officials are considering changes in how phosphorus levels are measured in the state’s rivers and streams, but their proposal is no improvement on the current standard.

Phosphorus is a pollutant that feeds algae in waterways, choking off oxygen and killing fish and other wildlife. Since 2004, the state Department of Environmental Protection has used a numerical standard that measures the presence of the chemical at the point where sewage plants discharge into streams. Anything higher than 0.1 milligrams of phosphorus in the water is a violation , and sewage plant operators must add a chemical treatment to remove the pollutant.

Now the DEP may replace the numerical criterion with a “narrative” standard that would allow varying discharge levels based on site-specific conditions. The change is supported by the Association of Environmental Authorities, which represents 105 water authorities.

Its executive director, Ellen Gulbinsky, said many conditions affect whether a given amount of phosphorous will be dangerous to a waterway, including how much sunlight hits the water and whether it feeds a drinking water supply. “We’re mindful of drinking and discharge water,” she said, but a remedy can be expensive “if done incorrectly, without a goal in mind.” Gulbinsky said it can cost $2 million to build a treatment facility plus higher operation and maintenance costs.

But Bill Wolfe, an environmental activist who was involved in setting the numerical standard when he was at DEP five years ago, said returning to more flexible regulation would allow sewage authorities to conduct endless studies and stall the treatments. It would make it “virtually impossible to enforce a standard,” he said.

There are compelling reasons to keep the current, rigorous standard. Unlike New York, which has large reservoirs, New Jersey depends largely on its rivers for drinking water.

Another strong argument came from those notoriously green folks in the Bush administration.

In January, just before Obama took office, the Environmental Protection Agency informed Florida officials that a numeric standard on phosphorous was necessary for the state to comply with the Clean Water Act. The Sunshine State had relied on the narrative standard.

“Numeric nutrient criteria will provide more precise, predetermined targets . . . and provide greater certainty as to the level of water quality,” the EPA told Florida’s DEP. The federal agency said the narrative approach, “is a difficult, lengthy, and data-intensive undertaking” and causes clean-up delays that would be avoided with a numeric standard.

NJ DEP would do well to review Florida’s experience, and heed the EPA’s advice. It’s the best way to protect both drinking water and the eco-system.

That April 2009 proposal to gut the standard was withdrawn.

Caught with their pants down trying to rollback a key protection by that Star Ledger editorial, DEP was forced to restore the standard in the December 2009 rule proposal now frozen by the Christie moratorium. Under the guise of a “misunderstanding”, clarifying the core of  that December rule proposal, DEP said:

Comments received on the April 20, 2009 proposal expressed concern that the Department would not implement a numeric criterion for a waterbody until it determined that the narrative criterion was not met. More specifically, commenters were concerned that the proposal could be interpreted to mean that the applicable numeric criterion would only be applied when it was found that a waterbody did not comply with the narrative criterion. Accordingly, they were concerned that where information or an assessment method was not available to evaluate compliance with the narrative criterion, the applicable numeric criterion would not be imposed. To eliminate this concern and clarify the Department’s intention in such situations, the Department is re-proposing phosphorus numeric criteria for both streams and lakes to indicate that the applicable numeric criterion applies until the Department determines that the phosphorus concentration in the waterbody does not cause undesirable conditions described in the narrative criterion for nutrients.

So now the same political pressure is being brought to bear by local sewer authorities. They have successfully used political pressure to exploit the loophole in the phosphorus standard for 25 years. They successfully pressured DEP to relax enforcement of the standard in discharge permits.

Now they are seeking relief via the Christie Moratorium. Their objective is the same denial and foot-dragging they have been allowed to get away with for the last 25 years: dodge phosphorus limits in their pollution discharge permits.

Polluters are relying the economic cost benefit analysis required by Christie’s EO #2.

Oblivious to the mandates of the federal Clean Water Act, and with no methodology specified or even key terms defined, the Christie Executive Order #2 broadly mandates “cost benefit analysis”. But the federal Clean Water Act strictly limits when state’s may consider economic costs in delegated State clean water programs. The CWA does not allow consideration of costs in setting what are required to be science based water quality standards to protect the fishable and swimmable objectives of the Act (i.e. protect, maintain, & restore the physical, chemical, and biological integrity of the nation’s waters). Regardless of these federal requirements, following EO #2, the DEP  crudely solicited comments on:

a. What is the effect of the proposal on New Jersey’s economy?

b. Do the burdens on business and workers outweigh the intended benefits?

But federal CWA policy to oversee State water quality standards programs severely limits when State’s may allowably take into consideration and sets strict safeguards. Federal regulations include specific economic factors and state in detail how State’s may consider them. For example, states may consider costs in 3 places: anti-degradation policy, use designations, and variances:

In order to remove a designated use or obtain a variance, the State or discharger must demonstrate that attaining the designated use would result in substantial and widespread economic and social impacts. Likewise, if a degradation in high-quality water is proposed, it must be shown that lower water quality is necessary to accommodate important social and economic development.

It is simply illegal for DEP to consider the economic factors specified above and the cost benefit analysis of Executive Order #2 in setting the phosphorus standard.

Limits on phosphorus pollution from sewage treatment plants are badly needed NOW to protect public water supplies and the health of NJ’s rivers and streams.

Twenty Five years of delay is unacceptable.

What is going on here is an outrage and must be stopped.

Why handcuff DEP enforcement? And why would Democrats join Governor Christie in doing so?

Paulsboro High School in shadow of Valero toxic air emissions - in Burzichelli's district.

[Update: 4/5/10 - Philly Inquirer story: "Committee ponders limits of state agencies' regulations"]

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

The bill in question, A2464 (Burzichelli (D – Valero), was not even drafted or formally introduced at the time of the hearing. The bill was opposed strongly by virtually all environmental groups. Following this testimony, a committee aide read the extremely complex bill aloud, with extensive amendments. Amazingly, not even having read what they were considering, the Committee then voted unanimously to approve and release the bill.

Assemblyman Burzichelli - is he representing Valero or his constituents?

Burzichelli’s Committee also took testimony on proposed legislation to block state agencies from adopting regulations that are stricter than federal minimums without prior and explicit legislative authorization (in other words, rollback followed by paralysis).

Both moves have been long sought and were loudly applauded by lobbyists for the highly polluting chemical and energy industries. And it was no secret that DEP and environmental regulations were the target of both bills.

But why on earth would the Governor’s rollback agenda – bad policy, deeply unpopular, and opposed by 79% of New Jerseyans according to a recent poll – be supported by democrats in the Legislature?

Burzichelli and the Committee hid behind the Christie Executive Orders’ “Red Tape” process to target and scapegoat DEP and environmental regulations as causing or contributing to the economic collapse.

While the testimony focused on legal esoterica of  administrative law and environmental regulation, it was obvious from the outset – despite repeated denials by Burzichelli – that the agenda and policy objective was to use the economic crisis as a pretext and to provide cover for an extremist DEP and environmental dismantling exercise long been sought by the polluters and developers of NJ.

Now that the dual economic and fiscal crises have hit, industry lobbyists are cynically, viciously, and shamelessly exploiting the situation.

Here is the Committee’s last minute posted agenda announcement:

The committee will hear testimony from the public concerning the feasibility of prohibiting a State agency from filing with the Office of Administrative Law a notice of proposal or notice of adoption for any rule that would exceed federal   standards or requirements unless specifically authorized by State law. A-2464 Burzichelli – Requires all State agency rules be published in NJ Register, and prohibits use of regulatory guidance documents unless specifically authorized by State law.

Right.

DEP testified in support of the legislation by announcing that Acting Commissioner Martin will soon issue an Administrative Order that will make all existing DEP guidance voluntary. In another radical departure from 35 years of policy and administrative practice at DEP, Martin will mandate that only adopted regulatory requirements are enforceable. Assistant Commissioner Kropp even admitted that the intent was to shield newly Licensed Site Professional toxic site cleanup contractors from enforcement actions by DEP or the newly created Licensing Board. After having successfully privatized the NJ toxic site cleanup program, polluters are now seeking to gut the technical requirements of the cleanup program, which are implemented via “guidance documents”.

Recent very  high profile illustrations of the importance of enforceable DEP guidance documents and Technical Manuals are: 1) chemical vapor intrusion into 450 homes in Pompton Lakes from the Dupont site; 2) chemical vapor intrusion into Atlantic Highlands Elementary school from a nearby toxic site; 3) toxic air pollutions and cancer risks assessments in Paterson NJ.

My testimony provided numerous examples of 1) why Technical Manuals (see NJDEP-Land Use Regulation Program-Notice of Revision and Updating of Freshwater Wetlands … and  NJPDES Discharge to Ground Water Technical Manual (June 2007) and this and this and this); 2) why DEP guidance documents raise enforcement issues (see this and this and this and this and this and this and this and this and this and this; 3) why stricter state laws and DEP regulations have been enacted and authorized, respectively, by the NJ Legislature over the past 35 years; and 4) why those standards are necessary and strongly supported by the public. As I previously wrote:

The environmental indicators that justify NJ’s stringent environmental and public health regulatory protections are uniformly dire.

NJ is the nation’s most densely populated state with the most cars, most development, most pavement and most toxic pollutants per square mile. NJ’s precious shore is highly over-developed and vulnerable to storms and sea level rise. Yet we continue to lose more than 15,000 acres of forests, farms, and wetlands per year to new development. NJ’s racially and economical segregated urban communities bear unjust disproportionate pollution and health burdens.  Contradicting lots of empty political rhetoric about reducing emissions, NJ’s greenhouse gas emissions continue to rise steeply. NJ has the most toxic Superfund sites and more than 20,000 other toxic sites. Communities are threatened by at least 15 chemical facilities, where an accident or terror attack could kill more than 100,000 residents. In NJ, more than 65% of streams and rivers and 100% of lakes fail to meet water pollution standards and lack cleanup plans. Statewide Fish Consumption Advisories warn that fish and shellfish are too toxic to eat. Over 12% of residential water wells fail health standards. The entire state does not meet health based standards for air pollutants ozone, fine particulates, and numerous cancer causing toxic chemicals; and not surprisingly NJ has the nation’s highest cancer and asthma rates.

No wonder, according to a recent Monmouth University/Gannett poll, 79% of NJ residents – on a bipartisan and socio-economic basis – oppose rollbacks on NJ’s environmental regulations as a solution to the state’s dual fiscal and economic crises.

I ran rapid fire through a list of major NJ environmental programs that the Legislature – in its infinite wisdom -  has authorized over the last 35 years, all of which are more stringent than minimum national standards and many of which are legally required to receive delegation and hundreds of millions of dollars in federal funds for implementing federal laws. The bills under consideration would put at risk and/or roll back all of the DEP regulations and Guidance documents that implement these laws that protect public health and the environment, including:

1. Air Pollution Control Act of 1954

2. NJ Spill Compensation  & Control Act of 1976 (state Superfund, enacted 4 years before Love Canal drove federal Superfund)

3. NJ Water Pollution Control Act, the state Clean Water Act

4. NJ groundwater quality standards

5. land use laws (State Planning Act, MLUL, et al)

6. toxic soil cleanup standards

7. hazardous waste management requirements

8. Safe Drinking Water Act – and 1 in a million cancer risk standard for carcinogens

9. Highlands

10. Pinelands

11. Coastal zone management (CAFRA)

12. solid waste regulation of things like landfills, garbage transfer stations, and restrictions on importation of Philadelphia and NYC garbage

13. NJ’s curbside recycling program

14. water supply allocation regulations

15. pesticide regulations

16. Toxic catastrophe Prevention Act to prevent a Bhopal chemical accident in NJ

17. Public and Community Right to Know about chemicals

18. Discharge Prevention and containment at oil storage tanks

19.  Natural Resource Damage restoration

20. water resource planning (wastewater treatment infrastructure, sewers and septic service areas)

21. Watershed Planning and management

22. stringent enforcement fines and penalties to provide real deterrence nd promote compliance

23. robust public involvement

24. open public records

25. flood hazard controls and development limitations in flood prone areas

26. stormwater management

27. freshwater adn coastal wetlands protection

28. protections for threatened and/or endangered species, including rare plants and ecological communities

29. fisheries/shellfisheries management and safe seafood

30. residential septic controls t block pollution and protect home-buyers

31. private well testing

32. well drilling

33. sludge/residuals management  and beneficial reuse

34. dam safety

35. pollution prevention

36. underground storage tank regulation

37. laboratory certification and standards

38. radiation protection

39. inherently safer technology for chemical production and storage

40. low emission/zero emission vehicles

41. greenhouse gas regulation’

42. promotion of energy efficiency and renewable energy

43. landfill closure/financing

44. compensation for damages from pollution

]]> http://www.wolfenotes.com/2010/03/democrats-in-legislature-join-christie-red-tape-environmental-rollback-juggernaut/feed/ 8 http://www.wolfenotes.com/2010/03/signs-of-spring/ http://www.wolfenotes.com/2010/03/signs-of-spring/#comments Thu, 04 Mar 2010 15:03:32 +0000 Bill Wolfe http://www.wolfenotes.com/?p=5086 Perhaps the February snowstorms have made me yearn more than usual for spring this year, and thus made me more aware of the signs.

About a week ago, I started hearing the birds at sunrise in the woods behind the house.

And this morning, when I let the dog out for her morning ritual, I noticed that green things had started jumpin’ up from the snow covered ground in the front yard.

So to bed I returned to listen to nature’s glorious orchestra unfolding – seemingly in sequence by bird species – embarrassed by the fact that of the dozen or more birdsongs I heard, I could name just one: the screech of the bluejay!

No naturalist I!

Perchlorate found in 1 in 6 DEP sampled NJ water systems – thousands of NJ residents exposed to chemical linked to thyroid damage that can slow brain development in children.

The saga over attempts to protect NJ’s drinking water from the chemical perchlorate continue – see “Rocket Fuel in Your Water?” and “Playing Politics with Your Drinking Water” and “Chemicals Found in Infant Formula”

When we last left this story in January 2009, former NJ DEP Commissioner Lisa Jackson was being criticized during her US Senate confirmation for EPA Administrator for failing to adopt protective standards during her 3+ year tenure, despite the warnings of DEP’s own scientists, NJ Drinking Water Quality Institute’s 2005 Report recommendations, federal Center for Disease Control studies, and public health experts across the country. The 2005 DWQI Report recommended a 5 ug/L (ppb) standard in part because:

Pregnant women and infants are considered to be sensitive subpopulations for perchlorate’s effects, as hypothyroidism can have serious consequences on neurodevelopment.

When reporters asked why Jackson had failed to act for almost 4 years, here’s the answer some gave:

[DEP Commissioner Lisa] Jackson’s supporters blame Corzine, not Jackson, for New Jersey’s failure to regulate perchlorate.

“I am very disappointed that the state hasn’t moved faster on developing a perchlorate standard,” said David Pringle of the New Jersey Environmental Federation, who sat on the panel that urged the state to regulate perchlorate. “That being said, I fully lay the blame on the governor’s office. DEP was ready to roll two years ago. It was the governor’s office that prevented us from moving forward faster.“  Jan. 13, 2009 ProPublica

Well fast forward to March 2010 and now we have a new Sheriff in Town, one that was endorsed by Dave Pringle. And what did Christie do?

He issued a moratorium that effectively killed the perchlorate standard finally proposed by DEP in March 2009, after 4 years of delay (barring, of course, unforeseen events between now and March 16, the deadline for the March 2009 proposal to lapse. It is highly unlikely that DEP will be able to respond to sham Red Tape Review process comments by then, because Red Tape review ends on March 15. It would be virtually impossible for DEP to read nonetheless respond to public comments in 24 hours. Of course, Christie or Regulatory Czar Guadagno could exempt perchlorate under the public health exception to Executive Order #1, but that too is highly unlikely because it has not been done thus far. The Perchlorate standard should never have been included  on EO#1 target list in Attachment A. Given the new Christie regulatory policies in EO 1, 2 and 3, any perchlorate MCL is not likely to be re proposed for some time and probably not at the 5 ug/L level. This is just another in numerous examples of how Christie’s Executive Orders are quietly rolling back public health and environmental protections.)

PEER Press Release (use this link for better resolution)

For Immediate Release:  Tuesday, March 2, 2010
Contact:  Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337

Christie Deep-Sixes New Jersey Perchlorate Standard

“Red Tape” Review Runs Out Clock on Rocket Fuel in Drinking Water Limit

Trenton — A multi-year effort to stem the spread of perchlorate, a chemical found in rocket fuel, in New Jersey drinking water has been blocked by order of Governor Chris Christie, according to documents posted today by Public Employees for Environmental Responsibility (PEER).  As a result, the chemical found in about one in six NJ public water systems will continue to remain unregulated for the foreseeable future despite the strong recommendation of DEP and academic and private water company scientists from NJ Drinking Water Quality Institute that a strict standard is needed.

Perchlorate is a component of rocket fuel that has many other munitions-related uses. The chemical has been shown to cause thyroid tumors and affects thyroid function, especially in infants, pregnant women and their fetuses.  Perchlorate contamination of groundwater has become a national problem, affecting more than 20 states in hundreds of locations.  The Centers for Disease Control has even found perchlorate in infant formula.  In New Jersey, the state Department of Environmental Protection (DEP) found perchlorate in 21 of 67 public water systems sampled.

On March 16, 2009, DEP proposed to enact a maximum contaminant level (MCL) of 5 micrograms per liter (μg/L) for perchlorate in drinking water.  Under the Administrative Procedure Act, any such proposed regulation must be acted upon within one year or the proposal lapses and the regulatory process must start all over again.  As his very first act, Gov. Christie in Executive Order No.1 froze 12 listed regulations that had not been finalized, starting with the perchlorate standard.  That freeze for “Red Tape Review” lasts until March 15, 2010 – just one day before the perchlorate standard lapses.

“Unless Gov. Christie and DEP enacts the perchlorate standard during this one day window, then New Jersey drinking water supplies will continue to expose thousands of unknowing residents to unsafe levels of this toxic chemical associated with rocket fuel and military ordinance that is linked to slowing the development of children’s brains” stated New Jersey PEER Director Bill Wolfe, a former DEP analyst, noting that starting the perchlorate regulation process all over again would take at least a year but probably much longer.  “This standard has been ready for years and it is business that Gov. Corzine should have taken care of before he left.”

Heavily impacted states such as California and Massachusetts have enacted their own perchlorate standards since national standards by the U.S. Environmental Protection Agency have been stymied for years by opposition from the Pentagon.  At her Senate confirmation hearing in early 2009, EPA Administrator Lisa Jackson pledged she would address perchlorate but the EPA process remains in limbo.

“When Jackson headed DEP, she also vowed to act on perchlorate beginning in 2006, then in 2007 and finally in 2008 but she never acted and we fear a repeat performance of this shuffle,” Wolfe added.  “Action by EPA may be the only hope, however slim, because the Christie administration gives no sign that it will support any public health protections going forward.”

This upcoming March 10^th, the Christie administration has scheduled a public “stakeholders” meeting as part of its moratorium review on pending perchlorate and other Safe Drinking Water Act rules.

###

Look at the Christie order that tables the perchlorate standard

http://www.nj.gov/dep/rules/2010_ext.html

See the proposed March 2009 New Jersey perchlorate standard

http://www.nj.gov/dep/rules/notices/031609a.html

Examine the scientific and public health justification for NJ standard

http://www.state.nj.us/dep/watersupply/perchlorate_mcl_10_7_05.pdf

View status of stalled EPA perchlorate regulatory efforts

http://www.epa.gov/safewater/contaminants/unregulated/perchlorate.html

New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability

These 12 DEP rule proposals are under review by the Regulatory Czar and can be vetoed by the “Red Tape Review” process and new “common sense principles” created by  Executive Order #2.

“Common sense” is the cynical slogan that masks controversial new Christie policies to require polluter friendly “cost/benefit analysis” and reverse 35 years of NJ environmental leadership by seeking to rollback NJ’s strict State standards to federal minimums.

DEP’s web page notice advises of a series of upcoming informal “Stakeholder” meetings next week, and a 15 day public “comment period”.

Both are transparent and deeply cynical moves to attempt to paper over glaring legal defects in both Executive Orders # 1 and #2. I guess DEP is trying to avoid repeating the embarrassment Christie suffered after a NJ court struck down his Executive Order that created a moratorium on COAH rules (see Ex. Order #12).

It looks like the lawyers at DEP now do what they are told instead of what is lawful and legally required. Unfortunately, such unprofessional and unethical practices are consistent with recent abuses at DEP, where science has been deeply politicized. Now law is as well.

But because federal environmental laws are involved, there is no way US EPA will allow Christie’s moratorium or Regulatory Czar to block adoption of DEP rules required to  implement federally delegated and/or funded programs under the Clean Air Act, Clean Water Act, Safe Drinking Water Act, Resource Conservation and Recovery Act, and Coastal Zone Management Act.

Similarly, EPA will veto Christie’s attempts to impose cost/benefit requirements on federal programs where costs are not allowed to be considered, such as in setting standards under the Clean Water and Clean Air Acts.

For the wonks out there, here are my preliminary comments to DEP – we’ll keep you posted, particularly on the EPA front.

I categorically oppose each and every one of the twelve (12) proposals listed as “Comment Period Extension and Informal Stakeholder Meetings for Red Tape Review of DEP Proposals” for the following reasons:

1) the Department’s notice and comment procedure; the informal stakeholder process; and the Red Tape Review Task Force Process created by Executive Order #2 do not comply with the rulemaking requirements of the NJ Administrative Procedure Act (NJ APA). Web posting and reliance on the authority of Executive Orders 1-3 can not supersede or replace NJ APA requirements. All 12 proposals were proposed pursuant to and in accordance with the NJ APA requirements. The Department may not – after the fact – revise these procedures.

2) The Department’s web post states the following:

“[Note:  The Department prefers electronic submissions in order to facilitate timely review of comments to meet the timeframes for action in the Executive Orders.]”

The time restriction (i.e. time frame for action pursuant to Executive Orders 1-3 and the Red Tap Task Force review process) can not replace or supersede the requirements of the NJ APA. The March 15 deadline is arbitrary and not in accordance with NJ APA requirements.

3) The substantive requirements of Executive Orders 1-3, particularly the requirements to conduct cost/benefit analysis (CBA) and to consider CBA as a basis for regulatory decisions is ultra vires and not authorized by either the NJ APA or the enabling authority pursuant to which each of the 12 rules were proposed.

4) The “reopening” of the public comment period and retroactive application of new procedures, standards, and decision criteria established by Executive Orders 1-3 is ultra vires, not authorized by law, and inconsistent and in violation with law. This includes the NJ APA requirements as well as the enabling statute for each rule proposal.

5) The Department’s application of the provisions of Executive Orders 1-3 to the subject rule proposals would violate the procedural and substantive requirements of federal environmental laws and the delegation agreements under which NJ implements federal laws.  These laws include, but are not limited to the Safe Drinking Water Act, Coastal Zone Management Act, RCRA, Clean Water Act, and Clean Air Act.

The same violations arise by the Department’s after the fact “reopening” of the public comment procedure in which this comment is submitted as part of.

6) The “reopening” process and the provisions of Executive Orders 1-3 violate federal funding agreements and the National Environmental Partnership Performance Agreement (NEPPS). The Department mad not substitute the provisions of EO and the Red Tape Task Force review process for the requirements of federal law, regulation and funding agreements.

7) Based on 1-6 above, I strongly urge the Department to withdraw this sham “reopening of the public comment process”. Surely, the Department realizes that this “reopening” process is not in compliance with procedural notice/comment requirements of applicable law.

Surely the Department knows that the “common sense principles”, standards, criteria, and informal process established by Executive Orders 1-3 are not authorized by law, can have no legally binding effect, and expressly  violate state and federal law. Accordingly, I request that this “proposal” be withdrawn.

9) The “Red Tape Review” process is an informal process that is not on the record. This process is not transparent and not authorized by law. In may not be considered or relied upon in any way for final agency regulatory decisions regarding the subject rule proposals.

No information considered or decisions reached during that process may be considered as part of the administrative record of the subject rule proposals, and none of it can be relied on as a basis for final regulatory decisions by the Department.

10) The Stakeholder process announced by this proposal is an informal process that is not on the record. This process is not transparent and not authorized by law. In may not be considered or relied upon in any way for final agency regulatory decisions regarding the subject rule proposals.

No information considered or decisions reached during that process may be considered as part of the administrative record of the subject rule proposals, and none of it can be relied on as a basis for final regulatory decisions by the Department.

Based on the above, I request that the Department withdraw this proposal and abandon this process.

I reserve the right to revise and extend these comments. By submitting these comments, I in no way mean to state or suggest that this is a legal procedure. I strongly protest this procedure as patently illegal.

Sincerely,

Bill Wolfe, Director
NJ PEER

UAF researcher Katey Walter lights a pocket of methane on a thermokarst lake in Siberia in March of 2007. Igniting the gas is a way to demonstrate, in the field, that it contains methane

Photo source – story link

We previously criticized DEP Commissioner nominee Bob Martin for failing to make a public statement of his vision for DEP and post his bio on the DEP website, as is traditional practice for incoming Commissioners.

That statement and bio are necessary parts of demonstrating leadership of the Agency and they set the stage for the qualifications, priorities, and policy agenda to be explored during Senate confirmation hearings. (read Martin interview here).

In the spirit of fairness, we are pleased to report that Martin finally has come out. Because we were harsh critics, we now post his bio and message to DEP employees, which was dated January 27, 2009, but just posted on the DEP web page (the DEP web page was updated/created on Feb. 24. A one month lag in posting is somewhat odd from a person who touts his IT experience. I guess his Senate confirmation hearing is scheduled. )

For now, I will only note disturbing policy themes and priorities:

1. Martin’s bio stresses his experience in privatization and deregulation of public services and infrastructure (public utility/energy and water systems).

2. Martin’s bio provides no clear facts on exactly what his consulting experience is – I have read that Accenture, his firm, was known for downsizing and off shoring jobs. In my view, Martin’s bio does not demonstrate satisfaction of the statutory minimums required for the job, which are to be “qualified by training and experience to perform the duties of the office” as follows:

13:1B-2.  Commissioner of Conservation and Economic Development; appointment;  term;  salary
The administrator and head of the department shall be a commissioner, who shall be known as the Commissioner of Conservation and Economic Development, and who shall be a person qualified by training and experience to perform the duties of his office.  The commissioner shall be appointed by the Governor, with the advice and consent of the Senate, and shall serve at the pleasure of the Governor during the Governor’s term of office and until the appointment and  qualification of the commissioner’s successor.

[Note: The Department of Conservation and Economic Development was abolished an recreated as DEP on April 22, 1970 - the elimination of the economic development function is additional evidence in support of point #5 below]

3. Martin’s message to DEP employees repeats his emphasis on “robust cost/benefit analysis” (CBA is now mandatory for all DEP regulations/ under Executive Order #2) Because regulations set the requirements for all permits issued by DEP, all environmental permits will be subject to CBA as well. Cost benefit analysis is fraught with major controversies as a regulatory tool. Worse, I have no idea what Martin means by the term “robust” – this is highly questionable, because DEP has just one economist on staff and he is not trained in CBA. So, lack of DEP capacity likely will be used to open the door for industry conducted CBA and be used as a policy basis to scale back regulations. To illustrate the likely abuse of CBA, on February 8, 2010, DEP Assistant Commissioner Nancy Wittenberg testified to the Senate Environment Committee that DEP would apply cost benefit analysis – after the fact – in making the Oyster Creek cooling tower final permit decision. The Oyster Creek Draft Surface Water Renewal Permit (pdf) issued by DEP in January did NOT include cost/benefit analysis, so I fail to see how DEP legally can do so after the fact. Wittenberg also confirmed that DEP would reply on “outside help“: (link to APP story)

The committee chairman, Sen. Bob Smith, D-Middlesex, had introduced legislation to require cooling towers before the DEP last month announced it would make that a requirement of a new discharge permit. Smith has promised in this legislative session to move on several proposals aimed at dealing with the bay’s ecological problems.

He asked Wittenberg how long the DEP will need to act on the plant permit.

“At least a year,” she said. Two public hearings are planned during the comment period that ends March 15, and then the DEP will need help from outside experts to conduct a cost-benefit analysis of the towers proposal, Wittenberg said.

“It will be a heavy lift for the department,” she added.

4. Martin’s message to DEP employees cites the “economic collapse” as a significant concern to him and DEP staff, yet he fails to note that the collapse was not created by DEP or environmental requirements, but by his private sector pals taking advantage of privatization and deregulation policies, while focused exclusively on economic issues and flawed tools, like cost benefit analysis..

5. Martin wants DEP “to play a key role in the economic growth of the state“. For now, I would just like to remind Martin and Senate Judiciary Committee members that promoting economic growth is NOT the statutory mission of DEP. Because so few seem to know what the DEP is supposed to do, here is DEP’s mission and powers, as established in DEP’s enabling legislation (note especially the lack of economic development powers):

13:1D-9  Powers of department.

12.The department shall formulate comprehensive policies for the conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution of the environment of the State. The department shall in addition to the powers and duties vested in it by this act or by any other law have the power to:

a.Conduct and supervise research programs for the purpose of determining the causes, effects and hazards to the environment and its ecology;

b.Conduct and supervise Statewide programs of education, including the preparation and distribution of information relating to conservation, environmental protection and ecology;

c.Require the registration of persons engaged in operations which may result in pollution of the environment and the filing of reports by them containing such information as the department may prescribe to be filed relative to pollution of the environment, all in accordance with applicable codes, rules or regulations established by the department;

d.Enter and inspect any property, facility, building, premises, site or place for the purpose of investigating an actual or suspected source of pollution of the environment and conducting inspections, collecting samples, copying or photocopying documents or records, and for otherwise ascertaining compliance or noncompliance with any laws, permits, orders, codes, rules and regulations of the department.  Any information relating to secret processes concerning methods of manufacture or production, obtained in the course of such inspection, investigation or determination, shall be kept confidential, except this information shall be available to the department for use, when relevant, in any administrative or judicial proceedings undertaken to administer, implement, and enforce State environmental law, but shall remain subject only to those confidentiality protections otherwise afforded by federal law and by the specific State environmental laws and regulations that the department is administering, implementing and enforcing in that particular case or instance.  In addition, this information shall be available upon request to the United States Government for use in administering, implementing, and enforcing federal environmental law, but shall remain subject to the confidentiality protection afforded by federal law.  If samples are taken for analysis, a duplicate of the analytical report shall be furnished promptly to the person suspected of causing pollution of the environment;

e.Receive or initiate complaints of pollution of the environment, including thermal pollution, hold hearings in connection therewith and institute legal proceedings for the prevention of pollution of the environment and abatement of nuisances in connection therewith and shall have the authority to seek and obtain injunctive relief and the recovery of fines and penalties in a court of competent jurisdiction;

f.Prepare, administer and supervise Statewide, regional and local programs of conservation and environmental protection, giving due regard for the ecology of the varied areas of the State and the relationship thereof to the environment, and in connection therewith prepare and make available to appropriate agencies in the State technical information concerning conservation and environmental protection, cooperate with the Commissioner of Health and Senior Services in the preparation and distribution of environmental protection and health bulletins for the purpose of educating the public, and cooperate with the Commissioner of Health and Senior Services in the preparation of a program of environmental protection;

g.Encourage, direct and aid in coordinating State, regional and local plans and programs concerning conservation and environmental protection in accordance with a unified Statewide plan which shall be formulated, approved and supervised by the department.  In reviewing such plans and programs and in determining conditions under which such plans may be approved, the department shall give due consideration to the development of a comprehensive ecological and environmental plan in order to be assured insofar as is practicable that all proposed plans and programs shall conform to reasonably contemplated conservation and environmental protection plans for the State and the varied areas thereof;

h.Administer or supervise programs of conservation and environmental protection, prescribe the minimum qualifications of all persons engaged in official environmental protection work, and encourage and aid in coordinating local environmental protection services;

i.Establish and maintain adequate bacteriological, radiological and chemical laboratories with such expert assistance and such facilities as are necessary for routine examinations and analyses, and for original investigations and research in matters affecting the environment and ecology;

j.Administer or supervise a program of industrial planning for environmental protection; encourage industrial plants in the State to undertake environmental and ecological engineering programs; and cooperate with the State Departments of Health and Senior Services, and  Labor and Workforce Development, and the New Jersey Commerce Commission  in formulating rules and regulations concerning industrial sanitary conditions;

k.Supervise sanitary engineering facilities and projects within the State, authority for which is now or may hereafter be vested by law in the department, and shall, in the exercise of such supervision, make and enforce rules and regulations concerning plans and specifications, or either, for the construction, improvement, alteration or operation of all public water supplies, all public bathing places, landfill operations and of sewerage systems and disposal plants for treatment of sewage, wastes and other deleterious matter, liquid, solid or gaseous, require all such plans or specifications, or either, to be first approved by it before any work thereunder shall be commenced, inspect all such projects during the progress thereof and enforce compliance with such approved plans and specifications;

l.Undertake programs of research and development for the purpose of determining the most efficient, sanitary and economical ways of collecting, disposing, recycling or utilizing of solid waste;

m.Construct and operate, on an experimental basis, incinerators or other facilities for the disposal of solid waste, provide the various municipalities and counties of this State, and the Division of Local Government Services in the Department of Community Affairs with statistical data on costs and methods of solid waste collection, disposal and utilization;

n.Enforce the State air pollution, water pollution, conservation, environmental protection, solid and hazardous waste management laws, rules and regulations, including the making and signing of a complaint and summons for their violation by serving the summons upon the violator and thereafter filing the complaint promptly with a court having jurisdiction;

o.Acquire by purchase, grant, contract or condemnation, title to real property, for the purpose of demonstrating new methods and techniques for the collection or disposal of solid waste;

p.Purchase, operate and maintain, pursuant to the provisions of this act, any facility, site, laboratory, equipment or machinery necessary to the performance of its duties pursuant to this act;

q.Contract with any other public agency or corporation incorporated under the laws of this or any other state for the performance of any function under this act;

r.With the approval of the Governor, cooperate with, apply for, receive and expend funds from, the federal government, the State Government, or any county or municipal government or from any public or private sources for any of the objects of this act;

s.Make annual and such other reports as it may deem proper to the Governor and the Legislature, evaluating the demonstrations conducted during each calendar year;

t.Keep complete and accurate minutes of all hearings held before the commissioner or any member of the department pursuant to the provisions of this act.  All such minutes shall be retained in a permanent record, and shall be available for public inspection at all times during the office hours of the department;

u.Require any person subject to a lawful order of the department, which provides for a period of time during which such person subject to the order is permitted to correct a violation, to post a performance bond or other security with the department in such form and amount as shall be determined by the department.  Such bond need not be for the full amount of the estimated cost to correct the violation but may be in such amount as will tend to insure good faith compliance with said order.  The department shall not require such a bond or security from any public body, agency or authority.  In the event of a failure to meet the schedule prescribed by the department, the sum named in the bond or other security shall be forfeited unless the department shall find that the failure is excusable in whole or in part for good cause shown, in which case the department shall determine what amount of said bond or security, if any, is a reasonable forfeiture under the circumstances.  Any amount so forfeited shall be utilized by the department for the correction of the violation or violations, or for any other action required to insure compliance with the order;

v.Encourage and aid in coordinating State, regional and local plans, efforts and programs concerning the remediation and reuse of former industrial or commercial properties that are currently underutilized or abandoned and at which there has been, or is perceived to have been, a discharge, or threat of a discharge, of a contaminant.  For the purposes of this subsection, “underutilized property” shall not include properties undergoing a reasonably timely remediation or redevelopment process; and

w.Conduct research and implement plans and programs to promote ecosystem-based management.
L.1970, c.33, s.12; amended 1975, c.33; 1981, c.446, s.1; 1983, c.38, s.1; 1984, c.5, s.1; 1997, c.278, s.26; 2007, c.246, s.2; 2007, c.288, s.6.

Here is Martin’s bio and statement to DEP employees, as posted on Feb. 24 on DEP website:

Demonstrating his commitment to building a strong, experienced team, Governor Chris Christie nominated Bob Martin to serve as Commissioner of the Department of Environmental Protection.

An accomplished business and industry leader with recognized expertise in energy and utilities, he served as a key policy adviser throughout Governor Christie’s gubernatorial campaign. He assisted in shaping and drafting then-candidate Christie’s Energy Policy and Environmental Policy, and provided policy guidance on other major issues. In recent years, he also has served as a respected and trusted adviser, primarily in energy policy, to several other candidates for U.S. Senate, congressional and gubernatorial seats.

In 2008, he retired as a partner with Accenture LLP after more than 25 years. Accenture is the world’s largest business and technology consulting firm with more than 140,000 employees around the globe.

Highly experienced in consulting, he has achieved impressive results working with a variety of businesses and industries – particularly energy and utility companies – to improve efficiency and enhance performance in an increasingly competitive marketplace. He has expertise in all aspects of business and management consulting, including business strategy and planning, business transformation and re-engineering, IT strategy, systems implementation, and change management. He also has considerable experience in project management of large systems integration and in business re-engineering projects.

Acting Commissioner Martin also has extensive international experience. While living in England from 1991 to 1995, he worked with several large U.K. water and electric utilities as the companies privatized and the markets deregulated.  He also spent significant time working with utility and energy companies throughout Europe and Canada.

Actively involved in the community, he was a candidate for State Senate in New Jersey’s 15th District in 2007. He formerly served as the Chairman of the Finance Committee for the Mercer County Republican Committee. He served on the Salvation Army Advisory Board of Greater New York from 2001 until January 2010, and as its Chairman from 2007 until January 2010. He served on the Princeton Healthcare System Foundation Board in 2008 and 2009. He also served on the Board of Trustees at the Chapin School in Princeton from 1996 to 2008, and on the Finance Advisory Committee for Hopewell Township from 2005 to 2007. He has been active in coaching youth soccer and lacrosse in Hopewell Valley for more than13 years.

Born and raised in Massachusetts, Acting Commissioner Martin earned a bachelor of arts in Economics and Sociology from Boston College in 1979 and an MBA from The George Washington University in 1982.

He and his wife, Brenda, have lived in Hopewell Township for more than 14 years. They have three children: Andrew, 24; Sara, 21; and Caroline, 12. Mrs. Martin is a teacher at the Cambridge School in Pennington.

Acting Commissioner Bob Martin’s January 27, 2010 message to DEP Employees

Dear DEP Team:

I want to send a quick note to all of you to introduce myself and to thank you all for a very warm welcome.

I am very honored to be your new Commissioner and to lead this wonderful organization. While I’ve only been here 6 days, I see many good things happening here, and a very talented group of professionals. At the same time, I do see things we can do better and must do better to fulfill Governor Christie’s agenda for action.

Like the Governor, I am personally committed to ensuring that the DEP protects New Jersey’s water, air, land and precious natural resources, and that we rapidly and predictably issue permits, clean up contaminated sites and ensure we protect our treasured open space for future generations. Additionally, our regulations and decisions need to be based on sound science, facts and a robust cost/benefit analysis. We will also continue to vigorously enforce the environmental laws of this state to protect the health and safety of all our citizens. At the same time, in the face of a collapsed economy, we need to play a key role in the economic growth of this State.

My style is to be open and honest and to work with all of you as a team. I want to empower decision making down through our chain of command and have all who come before us for service treated as valued customers.

I plan on walking through most of our locations over the next few weeks to meet as many of you as possible (I think I’m up to about 3 floors completed at 401 E. State) and will continue walking around our Trenton campus for an hour or so most days. A little later in my tenure I also plan to visit as many of our offices, parks and historic sites as possible located outside of Trenton.

There are a lot of very talented people here and I want you all to be part of the solution in improving our operations, efficiency and service to the public.

My commitment to all of you is that I will work as hard as I possibly can to make DEP a great place to work while we continue to protect the environment of this beautiful State. Most importantly, I will always listen and my door is always open.

Thanks!

Bob Martin
Acting Commissioner

This week, the Christie Administration took a quiet first step that cleared some of the smoke obscuring the impacts of the moratorium and Regulatory Czar created by Executive Oder #1, as well as the implications of the slogan of “common sense principles” mandated by Executive Order #2.

Christie’s EO #1 put a moratorium in place and targeted a specific list of proposed rules across state government. But it was difficult for the public to identify the 160 or so targeted regulations because they were hidden by how they were cited in Attachment A to EO 1 (it took me over 4 hours to wade through a stack of NJ Registers in the law library last week).

Way back on November 5, 2009, we warned “Christie Proposes Moratorium on Regulations – Signals Major Threat to Environment” – but that analysis was based on a list of DEP proposed rules pending at the time.  While Governor Corzine issued a January Order to extend the expiration date and thus protect some important rules from the Christie Moratorium, Corzine could not shield many other major DEP proposed new rules adn re-adoptioon of existing rules.

Now, we know which DEP rule proposals are impacted by the moratorium and subject to veto by the Regulatory Czar. Now that DEP has published a list of DEP proposed rules listed in EO #1, the facts are now in to vindicate our November claim.

While Christie has complained loudly that the outgoing Corzine administration took last minute actions to limit his options, amazingly, Christie’s Orders are retroactive and block environmental rules proposed by DEP long before the November Gubernatorial election, and thus represent a gross abuse of power.

Christie’s EO 2 created new “principles” that hide behind the misleading slogan of “common sense”. But that slogan now requires that environmental and public health protections be justified based on cost/benefit analysis. This sets up clear conflicts and trade-offs  between protecting clean air and safe drinking water, versus how much the business community must pay to protect them. That kind of debate will get very ugly, real fast.

The Orders also provide new closed door unaccountable opportunities for environmental protections to be attacked by corporate interests and scaled back to federal minimum standards, unless they can surmount arbitrary new political hurdles set by the Regulatory Czar. “Let’s make a deal” was only a 1960’s TV show – but the Regulatory Czar’s secret deals are real and will not be televised.

The Department of Environmental Protection quietly posted on the DEP website a public notice that confirms our prior criticisms that Christie Orders represent an all out assault on environmental protections. DEP posted a list of 12 major environmental regulations specifically targeted in and blocked by EO 1. The notice also identifies some of the new Christie policies that hide behind the “Common sense” slogan in EO #2.

The list is significant and includes the following rules that are blocked under the moratorium and subject to veto by Regulatory Czar Guadagno: :

Safe Drinking Water Act Rules; Private Well Testing Act Rules; and Regulations Governing the Certification of Laboratories and Environmental Measurements – Maximum Contaminant Level (MCL) for Perchlorate. See 41 N.J.R. 1128(a); March 16, 2009.  (DEP Docket No. 02-09-02/549)

Freshwater Wetlands Protection Act Rules – Determination of Substantial Reliance on a Letter of Interpretation.  See 41 N.J.R. 1314(a); April 6, 2009.  (DEP Docket No. 04-09-03/710) [Note: we oppose this rule - it is NOT a pro-environment rule, but it should not be killed via EO or by an unaccountable Regulatory Czar]

Processing of Damage Claims Pursuant to the Sanitary Landfill Facility Closure and Contingency Fund Act – Readoption with amendments.  See 41 N.J.R. 2759(a); July 20, 2009.  (DEP Docket No. 10-09-06/703)

Coastal Permit Program Rules; Coastal Zone Management Rules; Flood Hazard Area Control Act Rules – Wind and Solar Energy.  See 41 N.J.R. 3168(a); September 8, 2009. (DEP Docket No. 12-09-08/734)

Water Pollution Control Act Rules – Readoption.  See 41 N.J.R. 3776(a); October 5, 2009. (DEP Docket No. 13-09-09/728)

Natural Areas and the Natural Areas System Rules – Readoption with amendments.  See 41 N.J.R. 4154(a); November 16, 2009. (DEP Docket No. 15-09-10/735)

Air Quality Management – Sulfur in Fuels.  See 41 N.J.R. 4156(a); November 16, 2009. (DEP Docket No. 14-09-10/676)

Safe Drinking Water Act Rules – Readoption.  See 41 N.J.R. 4381(a); December 7, 2009. (DEP Docket No. 17-09-11/749)

Underground Storage Tanks - Readoption.  See 41 N.J.R. 4384(a); December 7, 2009.  (DEP Docket No. 16-09-10/624)

Surface Water Quality Standards – Nutrient Policies; Phosphorus Criteria.  See 41 N.J.R. 4587(a); December 21, 2009. (DEP Docket No. 21-09-11/754)

Forestry – Readoption.  See 42 N.J.R. 14(a); January 4, 2010. (DEP Docket No. 24-09-12/687)

Safe Drinking Water Act Rules – Environmental Enforcement Enhancement Act amendments and Permit Efficiency Review Task Force amendments.  See 42 N.J.R. 17(a); January 4, 2010. (DEP Docket No. 19-09-11/751)

We believe that the Christie Orders are not only very bad policy for NJ, but violate state and federal administrative and environmental laws.

We hope the Senate Judiciary Committee probes these legal and environmental policy issues in detail during DEP nominee Bob Martin’s upcoming confirmation hearing.

Paterson City Hall - statue of Garret Augustus Hobart dominates entrance

[Update: 3/4/10 - DEP has revised the Paterson study and posted a new Final Report version dated 2/24 - disregard criticism of the deletions described below. More to follow on exactly how the changes to the Report happened] -

To paraphrase the Bard, something stinks in Paterson, NJ – and the fish rots from the head down.

Paterson Mayor "Joey" Torres

Maybe he’s dreaming of having his own statute in front of City Hall someday, but someone apparently forgot to tell Mayor “Joey” Torres that the age of industrial robber barons, political bosses, and urban machines is long over.

How can it be that AFTER the press reports critically on a DEP study that documents serious environmental justice, air toxics, and respiratory health problems in a predominately black and latino city (see: City’s air may raise cancer risk and followup story Paterson air study raises questions) that when the public hearing is held – look at those empty City Council Chairs – NOT ONE COUNCILMAN SHOWS UP – and DEP bureaucrats feel emboldened to even laugh (during Black History Month, no less).

Last night, DEP led a public meeting to brief the community on the findings of the recently released controversial air toxics study that found elevated levels of cancer causing chemicals  (see this and this and this for background on the DEP Study).

In addition to no City Council members showing up, there were no residents there either (at least any willing to introduce themselves or speak). To their credit, US Senators Launteberg and Menendez and Congressman Pascrell sent representatives to the hearing and expressed their support, as did US EPA. (Could failure to organize and turnout the disproportionately adversely impacted Paterson community have anything to do with this?)

But, the whole affair reminded me of the classic line: “Forget it Jake, its Chinatown“.

What would Sojourner Truth say?

The empty City Council and audience chairs were surrounded by posters of a very different historical tradition:

Some of those heroes gracing the perimeter of the empty Council chambers literally took the law into their own hands and fought for justice:

While others wrote eloquently of the struggle:

Did they fight and dream for empty chairs?

Right off the bat, I knew this meeting was going to be a disaster.

The Mayor’s aid distributed 5×7 file cards. All questions had to be written down on those cards. The Mayor – not the citizen questioner – would then read the question to DEP.

After taking control of the meeting and shutting down any dissent from those who objected to the inappropriate 5×7 card format – including making rude remarks to a woman and her 9 year old son who were trying to ask well informed questions – the Mayor then proceeded to read a lengthy (DEP prepared?) statement.

Paterson Mayor "Joey" Torres reads a detailed statement at outset of hearings. A prior private meeting with DEP allowed them to get their stories straight.

DEP then spoke for 45 minutes to present the study and defend it from criticism voiced in news coverage. DEP’s presentation focused on mobile sources (cars and trucks) as the major cause of the problem, a problem for which DEP conveniently had no responsibility or legal authority to regulate.

DEP brushed off my criticism that they gutted the Report by deleting the high “combined cancer risk” findings in the draft report. While not retracting them, DEP claimed that those findings were deleted because “DEP does not do risk assessment that way” Duh! DEP risk assessment is flawed because it ignores known cumulative and synergistic effects of multiple pollutants people are exposed to!

DEP even defended manipulative and dishonest PR practices, including the deletion of draft study findings and recommendations, including:

1) elevated rates of respiratory disease, especially in children.

The following draft Report findings were deleted in their entirely from the final Report:

Paterson has more than three times the state average for hospitalization rates due to asthma (Wallace, 2003). A study in Paterson (Freeman et al, 2002) found that 21% of third graders had been diagnosed with asthma or a related health problem. Paterson… has the fifth highest hospitalization rate for asthma in NJ (NJDHSS, 2003). Twenty eight air toxics (Leikauf, 2002) have been associated with exacerbations of asthma and the 1996 [EPA] National Air Toxics Assessment identified fourteen air toxics which are causing elevated cancer and non-cancer risks (NJDEP, 2003) in Passaic County

2) local industrial emission “hot spots”, located close to homes and schools:

The following draft Report findings were deleted in the Final report:

[Paterson] was selected because it qualifies as an air toxics “hot spot” due to the industrial (e.g. textiles; dyes; chemicals; metal fabrication, refinishing and recovery; plastics; printing; electronics; paper and food products, etc) commercial (e.g. dry cleaning; photo labs; commercial heaters/boilers; print shops, etc) and mobile sources (US I-80, Rt. 19) dominated sectors… Schools have been chosen as monitoring site locations allow UCAMPP the unique opportunity to monitor air toxics where children, a susceptible subpopulation, spend a portion of their time.

Worse, the community was provided a false rationale as to why Paterson was selected for the study.

3) Why Paterson was selected for the study – because of race, ethnicity, and income statistical profile (plus “toxic hot spots”).

The following draft report findings were deleted in the Final report:

Paterson was chosen for this project because it is a mixed-use urban community with high population density and many of the characteristics of an environmental justice community. …

Paterson has all the characteristics of an environmental justice community with a disproportionately large percentage of families living at or below the poverty level. Nineteen percent of the families in Paterson live at or under the poverty level compared to 6.3% for the state. There are 149,000 residents, of which 1/3 are white, 1/3 black and the balance are some other race. Fifty percent of the population considers themselves to bee Hispanic or Latino. The population density is over 17,210 people per square mile.

4) relationship to prior Camden Pilot study and Environmental Justice concerns

The Paterson study was the next phase in north jersey, of a pilot community environmental justice initiative begun in Camden, NJ. The Camden case is highly significant, as a DEP air permit issued there to St. Lawrence Cement was stuck down by a US District Court judge on environmental justice grounds. US District Court judge Olofsky found:

“Much of what this case is about is what the NJDEP failed to consider … It did not consider the pre-existing poor health of the residents of Waterfront South, nor did it consider the cumulative environmental burden already borne by this impoverished community. Finally, and perhaps most importantly, the NJDEP failed to consider the racial and ethnic composition of the population of Waterfront South.” ( emphasis mine  South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 145 F. Supp. 2d 505 (D.N.J. 2001). )

The final Report sanitizes and contains no reference to this historical, policy, and scientific context (see this and this)

b) DEP suppressed consideration of cumulative impact risks presented in the draft report

Significantly, the Paterson study was the first DEP attempt to calculate “cumulative risk” by estimating “combined cancer risks” of multiple pollutants – this is a cutting edge EJ public health issue, see: EJAC 2009 Report: Strategies for Addressing Cumulative Impacts in Environmental Justice Communities-March 2009 – yet  all this is ignored.

The draft Report calculated “combined cancer risks” (inhalation) from multiple chemical pollutants detected in the air. Combined risks were estimated from 210 to 710 TIMES NJ’s cancer risk policy standard of one in a million lifetime excess cancer risk.  (see page 61 of draft Report here)

In addition to suppressing the draft Report’s unacceptably high “combined risk” findings, the final report also failed to even mention the basic public health science concepts of cumulative and synergistic risks of multiple pollutant (or multiple pathway) exposures. The Final report failed to include any discussion of the pressing issue of cumulative risk that was presented to DEP in a March 2009 Report to DEP by DEP’s own Environmental Justice Advisory Council. According to the Council’s report: (see: EJAC 2009 Report: Strategies for Addressing Cumulative Impacts in Environmental Justice Communities-March 2009

U.S. Environmental Protection Agency (EPA) documents define the term “aggregate risk” as the risk from all routes of exposure to a single substance, and the term “cumulative risk” as the risk from all routes of exposure to a group of substances. They are silent on the issue of multiple sources. 2 In order to have a clear and intelligible discussion about cumulative impacts, it is important for the NJDEP to agree on the definition of terms that are used. Appendix A provides some examples from various sources that might be useful. The choice of definition is not as important as assuring that everyone involved in a single conversation are all using a term with the same definition in mind.

In the mid-1990s, the EPA also developed a “Cumulative Exposure Project” that incorporated multiple pollutants, multiple sources, and multiple pathways (air, food and drinking water), but did not directly address duration.3 However, the EPA has not been able to extend this effort beyond the inhalation pathway which continues to be addressed by the National-Scale Air Toxics Assessment Project. (see: EJAC 2009 Report: Strategies for Addressing Cumulative Impacts in Environmental Justice Communities-March 2009

In another effort to conceal important information and misleadi the public, the final Report deleted findings that the cancer risks exceeded EPA risk range policy. EPA funded the study and EPA has legal oversight over NJDEP’a air program. When EPA’s own risk range is exceeded, they are required to act to reduce those risks under EPA policy adn regulations. So the deletion of this “unacceptable risk” finding is highly significant. The draft Report found:

The combined cancer risk at all four sites were at the high end of that the USEPA considers “acceptable risk”, i.e. 1×10(-4) to 1×10(-6). The combined cancer risk was greater at the Paterson sites than at the background site. The greatest risk was observed at the C site 7.1×10(-4) [My Note: that is 710 in a million, from 7-710 TIMES HIGHER THAN EPA acceptable risk].

c) DEP downplayed the risks to minimize public health concerns -  DEP spun the health risks to the community

DEP systematically downplays public health risks of the pollution levels they found by omitting key scientific findings from the study, the high air pollution related health problems cited above, while inserting claims not found in the original study. For example, DEP claims:

• “There is no immediate public health concern” – this is a conclusion that ignores evidence of significant long-term and cumulative effects – “immediate concern” is a totally inappropriate standard to apply in this case, where health effects are the outcome of chronic exposures;
• “The air quality in Paterson is consistent with that of the entire state” – this is a vague statement that ignores that the study was designed with a background monitoring station in Chester, NJ and many other specific findings such as chlorine levels in Paterson more than 100 times higher than EPA national model estimates; and
• “The cancer risk [for p-dichlorobenzene, one of 132 toxics measured] calculated at the one site in Paterson where the elevated concentrations occurred would be 205 in a million”. This statement neglects to mention that this is more than 200 times the one in a million cancer risk guideline used by DEP and that even higher cancer risks were found at other monitoring sites
• DEP completely fails to mention that the study found the “combined cancer risk” from exposure to toxic chemicals at the high end of what the U.S. EPA considers acceptable risk, and over 700 times higher than New Jersey’s cancer risk standard of one in a million

c) DEP failed to release industrial emissions inventory

One original objective of the study was to inventory all industrial emissions sources within a 1 mile radius of each monitoring station. Yet that facility specific inventory is not included in the final report,. Rather, DEP claims that from 153 to 227 facilities were considered. This failure makes it impossible for the community to know where all the toxic pollution emissions are coming from and the status of DEP permits and enforcement actions at each polluting facility.

Such withholding of vital information only benefits and protects the polluter. It totally frustrates citizen efforts to hold DEP and polluters accountable to clean air laws.

To obtain this information, on December 9, 2009, I filed an OPRA public records request to DEP. That emissions inventory  information has been denied.

d) DEP sanitized Report findings of flaws in DEP air permit database and permit program.

Significantly, this information is required in order to determine the status of Clean Air Act MACT compliance requirements and enforcement issues. Without the information, compliance and DEP permit performance can not be assessed by the community.

The draft Report (@page 19)  - under a headline “Needed Improvements to NJDEP Emissions Databases” – made highly significant negative findings and specific regulatory improvement recommendations that were deleted from the final Report. The draft Report found:

Based on the UCAMPP and other projects done by the Department, it has been recognized that NJDEP needs to improve emissions databases. This can be accomplished by expanding current permit requirements so that facilities would have to submit stack specific speciated VOC’s and HAP’s. This would greatly reduce the resources needed to generate a detailed emissions inventory. The current requirements that major facilities report 36 HAPs at a facility-wide level in theri emissions statements needs to be expanded to include additional air toxics (possibly all those with risk based health numbers), be stack specific adn be a requirement for all sources of air emissions not just major sources and reporting thresholds need to be revised to reflect risk. The goal of any model is to try to accurately represent  what is really happening in the given area of study. This can only be achieved through the input of accurate and complete data into the emissions inventory.

e) DEP failed to mandate risk reduction measures on known emission sources- DEP limited the scope of the Report and followup risk reduction measures to voluntary measures, i.e outreach and education.

This arbitrary restriction is scope again only benefits polluters because it fails to educate citizens about the full suite of regulatory and enforcement tools available to DEP to reduce pollution and public health risks in Paterson neighborhoods.

f) DEP has conducted limited to no followup source track-down investigations and air permit and enforcement to mandate emissions reductions and reduce risks.

Conclusions and going forward plan

1. Based on concerns with elevated levels of EPA regulated hazardous air pollutants, EPA provided an additional $157,000 in funding to continue monitoring and pollution source track down. That money was committed by EPA is less than 1 month, which is rapid action and shows that this is a high priority to EPA. The EPA funds were received by DEP last week. The additional monitoring study will begin this spring, will last 12 months, followed by 6 more months of DEP analysis before a final report is issued. (But if DEP can analyze the new data in 6 months, why did it take 3 YEARS in UCAMPP?)

2. DEP pledged to do additional pollution source track-down and enforcement.

3. I submitted a preliminary report criticizing the study along the above lines to City Council. I provided a copy of this report to EPA and representatives of Senators Lautenberg and Menendez, and Congressman Pascrell.  DEP pledged to reply in writing to my Report to the Mayor and asked that the Mayor share their reply with the Paterson community.

We’ll keep you posted as events develop.

Dr. Bullard speaks at Drew University (2/24/10)

Dr. Robert D. Bullard, of Clark Atlanta University, the man known as ”the father of the US environmental justice movement” spoke today at Drew University. Bullard pioneered mapping the relationships between race, income, and pollution. It only took NJ DEP 35 years to apply Dr. Bullard’s mapping methodology in NJ – see: “DEP Discovers Discrimination – Dumps Environmental Justice Issue in Christie’s Lap” (and 30 to engage the issue in Camden).

Dr. Bullard’s talk was titled “Growing Smarter: achieving healthy and livable communities for all” .

Knowing of Dr. Bullard’s groundbreaking and politically powerful work, I gotta say I was initially disappointed by the title – it sounded like just another wonky technocratic presentation of the benefits of smart growth and land use planning.

But  Bullard did not disappoint.

He spoke armed with science, facts, passion and humor to bluntly and clearly illustrate the savage racial and income inequalities in America and the disproportionate pollution and adverse health burdens borne by predominately black, poor, and/or minority communities.

Paterson, NJ - liquor open - public housing closed

Bullard had great photographs and slides to illustrate his data on everything from the lack of access to fresh vegetables at local grocery stores (despite a  preponderance of liquor stores), lack of green space, limited recreational opportunities, and unhealthy schools and homes located right next to industrial pollution sources like chemical factories and power plants.

Citing a closed hospital in a black neighborhood in Atlanta, he said the message it sent to the community was “shut up and die“.

Bullard seamlessly integrated basic health prevention (diet and exercise) with spatial analysis of land use, transportation, energy, health, educational and environmental polices.

Bullard’s overarching theme was “we must put health at the center of our policies” – and that citizens and communities must organize to fight for sustainable, just, and healthy communities.

Invigorated and inspired, I’m off right now to operationalize some of Bullard’s ideas at a public hearing in Paterson on the DEP community air toxics study. (there was a prior closed door meeting, where DEP briefed the Mayor’s friends on Feb. 9)

Back in September, we filed a lawsuit against DEP under the NJ Open Public Records Act (OPRA). We were seeking to obtain documents that showed how industry was exerting political pressure behind the scenes to secure appointment of industry scientists to the newly created Science Advisory Board.

DEP denied our OPRA request in an effort to cover that lobbying up, so we sued them (see: New Front in War on Science – Lawsuit Filed to Obtain Smoking Guns and This is Why We Need Transparency at DEP).

DEP’s lawyers from the Attorney General’s Office filed righteous legal briefs that defended DEP’s OPRA secrecy because they claimed that public disclosure of this information would compromise the integrity of the SAB selection process.

DEP claimed they needed to keep the whole thing secret to avoid “unwanted pressure to select candidates based on the goals and philosophies of groups that had this information“. DEP argued that public disclosure of this information might even “cast a pall over the process” and compromise “independent scientific peer review” and undermine “public confidence in the process” (see page 7 of Judge Feinberg’s opinion).

But literally at the same time DEP lawyers were filing those legal briefs and making those righteous claims about protecting the integrity of the process from political pressures, in a remarkable show of hypocrisy, DEP was actually meeting with lobbyists for the chemical industry to discuss SAB appointments of industry scientists and consultants (including Dupont)!. Here is what was actually going on behind the scenes at DEP – we caught them red handed – and ironically, this meeting was held on October 1, 2009, the same day we filed our lawsuit:

We Won! See PEER press release , including links to Judge Feinberg’s opinion below:

COURT ORDERS RELEASE OF NEW JERSEY SCIENCE BOARD NOMINEES — Successful Open Records Suit to Reveal Industry Sponsorship of Science Board Picks

Trenton — A state superior court has ordered the New Jersey Department of Environmental Protection (DEP) to surrender records on industry efforts to pack a new Science Advisory Board, according to the ruling posted today by Public Employees for Environmental Responsibility (PEER). Under the court order, the names, résumés and sponsorship letters will be released to PEER. .

On September 29, 2009 PEER sued DEP for violating the Open Public Records Act (OPRA) when it denied a PEER request seeking public records related to industry nominees and political lobbying for the Science Advisory Board (SAB). The DEP had broadly claimed that requested documents were OPRA-exempt, claiming that information about pending Board appointments is analogous to job applicant forms and thus confidential, even though SAB members would not be DEP employees and would be unpaid.

In a decision dated February 18, 2010, Superior Court Judge Linda Feinberg brushed aside DEP’s legal position as without merit and ordered the agency to provide the SAB materials to PEER, whom she declared the prevailing party. PEER’s case was argued by Michael Pisauro of the Princeton-based firm of Frascella & Pisauro, LLC.

In her ruling Judge Feinberg indicated that DEP had “finalized its recommendations of candidates for the SAB on January 15, 2010” but that a final decision by holdover Commissioner Mark Mauriello was “held in abeyance” at the behest of the incoming Christie administration. That list of final recommendations contains several affiliated with DuPont, private water companies, and some of New Jersey’s largest consulting firms which advise industry on environmental standards and permit requirements. Notably, Mauriello had met with the Chemistry Industry Council concerning the composition of the SAB.

“Regulated industry and their consultants have an obvious and enormous interest in influencing DEP scientific positions,” stated New Jersey PEER Director Bill Wolfe, noting that the controversial 12-member board was created by former Commissioner and current EPA Administrator Lisa Jackson when she abolished the DEP Division of Science & Research. “Our concern is that advisers with an economic dog in the fight will bring biases that make them unsuitable sources for objective scientific advice.”

The Administrative Order creating the SAB specifies a conflict of interest review of nominees but does not specify what standards should be applied to determine “financial or personal interest,” nor does it define what those terms mean in the context of the SAB. In recent months, DEP scientific studies have been subjected to intense industry lobbying efforts on public health topics ranging from the effects of chemicals, such as PFOAs made by DuPont, to cement dust blowing through Camden.

“We went to court because the selection of scientific advisers should be done out in the open so that any industry ties are known in advance,” Wolfe added. “We call on the Christie administration to reconsider the SAB concept and provide real safeguards, so that affected industries cannot use the process to inject influence and delay, weaken, or derail scientific assessments that are used to set health standards.”

###

Read Judge Feinberg’s opinion

Look at the PEER complaint and what led up to it

View industry affiliations of nominees chosen by Corzine administration