Did Senate President Sweeney and/or NJ Gov. Murphy Pressure Regulators To Keep Delaware LNG Export Terminal Under The Radar?

June 16th, 2019 No comments

Follow the money and the finance trails

Lame-duck-07-ends-076

Who were the players behind the scenes that pushed this project through DRBC and DEP reviews, without disclosing the LNG aspects?

[Update below]

This is a followup to my previous post, where I explained the attempt to stealth a controversial LNG export terminal through the DRBC and NJ DEP regulatory review process.

DRBC themselves confirmed similar flaws in the DRBC review process, rejecting claims of a coverup:

“DRBC disagrees with that statement,” it said. “The public hearing on June 6 was adequately noticed, and DRBC has shared with the public all information submitted by the applicant and/or its contractors.”:

Upon approval, the DRBC exposed its narrow scope of review and total lack of consideration of climate impacts or energy policy: (Inquirer)

The commission said its review was confined to the impact of building the wharf and of dredging the Delaware River to 43 feet deep to connect with the main channel.

But, perhaps there are other reasons that can explain this huge blunder – other than pure regulatory failure, e.g.: political pressure on regulators by high level officials.

The Delaware Riverkeeper Network, who exposed the story, is alleging a coverup.

In fact, it appears that this could be another example of:

Here is what a quick Google found – given all the smoke, we strongly suspect fire.

To document what would be an Encap-level blaze of corruption, some intrepid journalist out there should file OPRA requests at DRBC and NJ DEP for all the regulatory review documents, i.e. the full administrative file and all communications regarding it (where are you Jeff Pillets!).

I) Longtime Sweeney involvement

Back on July 24, 2016, the Philadelphia Inquirer reported:

Plan to revive old South Jersey industrial site draws fans and fears

[…]

State and local leaders are confident the new port will be a positive presence in the township and county.

“This will be a big job generator,” said Senate President Stephen Sweeney, whose Third Legislative District includes Gibbstown, also known as Greenwich Township. “We’ve been working on this since 2005.”

Sweeney has already had his way with Murphy DEP Commissioner McCabe, so he knows her number (besides, he also had his own Senate staffer, Eric Wachter installed as McCabe DEP’s first Chief of Staff. But The latest DEP org chart indicates that Wachter has departed. He’s now in private sector.)

Screen-Shot-2018-04-25-at-2.14.05-PM

Given Sweeney’s many prior interventions at DEP, it is not a stretch to speculate that he twisted DEP arms on this proposed LNG terminal that he’s supported “since 2005″.

II.  Twisted Tales Of Wall Street Finance Could Link Gov. Murphy to the Project

Before the 2016 Philadelphia Inquirer story, back on 3/20/15, NJ.Com wrote a story with Sweeney praising Fortress Investment Group:

State Sen. President Steve Sweeney led a press conference in Greenwich Township to announce the sale of the township’s former DuPont Repauno plant to Fortress Investment Group, which aims to turn the dormant 1,800-acre property into a port-related industrial park for imports and exports.

Sweeney goes out of his way to praise Fortress:

“That’s what they do, and they do it with private sector capital, not government money, which is the win-win-win for everybody,” said Sweeney, who declined to divulge the total value of the sale besides to say “It’s a lot of land.”

But Fortress did not provide a “win-win-win for everybody”. 

Fortress is a failed hedge fund – see:

  • The Fall of Fortress  – The asset manager is selling itself at a premium, but it’s still trading at a fraction of its IPO price. The big losers? Us.

Fortress Investment Group, the struggling alternative-­investment firm that went public to great fanfare ten years ago but whose shares have since lost 74 percent of their market value.

Kaplan says Fortress has been “terrible” for public investors.

They’ve ripped off public investors, including – as Sweeney might appreciate, given his political battles with NJ Teachers Unions – the Ohio Teacher’s Pension Fund:

Fortress was the first U.S. alternatives firm to go public, in 2007, starting a trend that burned red-hot, then quickly flamed out, proving over the past ten years that these deals have been a disaster for public shareholders, which include big mutual funds catering to both retail and institutional investors. Among Fortress’s shareholders: Allianz Asset Management, Fidelity Investments, Wellington Management Co., and even the State Teachers Retirement System of Ohio.

Now here’s where the links between Fortress and Gov. Murphy get murky and hypothetical, but good investigative journalism could connect these dots:

1. Veteran NJ environmental reporter Kirk Moore confirmed the story on the stealth LNG aspect of this project, where he also noted:

Delaware River Partners LLC, a subsidiary of New York City-based Fortress Investment Group.

2. Who is Fortress Investment GroupWikipedia reports that they have strong links to Goldman Sachs:

When Fortress launched on the NYSE on February 9, 2007 with Goldman Sachs and Lehman Brothers underwriting the IPO.

3. More recently, Fortress was acquired by a politically wired firm called SoftBank Group Corp, as reported by Institutional Investor:

Last December business executives from around the globe made their way to Manhattan’s Trump Tower to meet with president-­elect Donald Trump. But few made as big of a splash as Masayoshi Son, head of SoftBank Group Corp., who had Trump crowing on Twitter about the Japanese mogul’s pledge to invest $50 billion in the U.S. and create 50,000 American jobs.

… on February 14 [2017], SoftBank agreed to pay $3.3 billion to buy Fortress Investment Group, the struggling alternative-­investment firm that went public to great fanfare ten years ago but whose shares have since lost 74 percent of their market value.

4. SoftBank has some interesting relationships:

Fortress’s $3.3 billion deal with SoftBank was driven by Rajeev Misra, a former Deutsche Bank derivatives expert who is now in charge of investment strategy.

Gov. Murphy was former US Ambassador to Germany, where, particularly given his Goldman Sachs finance background, one assumes he had relationships with Deutsche Bank “experts” on investment strategy.

5. Now look who Mr. Misra, who drove the Fortress deal, formed a relationship with and where that individual previously worked:

A few years ago Misra worked briefly at Fortress, where he developed a relationship with Edens and Peter Briger Jr., who cochair the board of directors. (Briger also has ties to Japan, where he previously worked for Goldman Sachs Group.)

6. Briger and Phil Murphy are both Goldman Sachs diaspora, see NY Times.

So, a few questions emerge:

Did Phil Murphy have any involvement with the Fortress deal when he was at Goldman?

Did Phil Murphy have any relationship with SoftBank or Peter Briger?

Was Gov. Phil Murphy aware of the Fortress role?

As Gov. of NJ, Murphy sits on the DRBC Board and has executive control over DEP.

Did Murphy  in any way intervene in DRBC and/or DEP regulatory review processes?

Who were the players behind the scenes that pushed this project through DRBC and DEP reviews, without disclosing the LNG aspects?

[END NOTE:  There are many “coincidences” here.

The proposed LNG plant would be located on a former Dupont massive toxic waste site, known as “Repauno”.

Tomorrow, the Senate Environment Committee will hear a bill that directly and significant impacts the Dupont/Chemours Repauno site by prohibiting DEP assumption of direct oversight. That would put Dupont/Chemours in total control of the cleanup, with no DEP oversight, for details, see:

Check out the Dupont Repauno site on EPA RCRA list. S3682 would prohibit NJ DEP oversight of the Repauno site as under the “federal involvement” loophole in Section 26

This is not the first time a former Dupont toxic site was involved in a corrupt billion $ energy facility development, see:

Unbelievable corruption in plain sight.

[Update: 6/16/19 – Just to nail this down and remove the plausible denial factor, I just sent this note to the members of the Senate Environment Committee and Democratic Senate staff and the media:

From: Bill WOLFE <bill_wolfe@comcast.net>
To: senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, senbateman <senbateman@njleg.org>, kduhon@njleg.org, Tittel, Jeff, Tittel, Jeff, jonhurdle@gmail.com, Pringle, Dave, Jeff Pillets <jeffpillets@icloud.com>, tmoran@starledger.com
Date: June 16, 2019 at 10:31 PM
Subject: S3682 – Dupont Repauno & LNG terminal

Dear Chairman Smith:

Recent news reports have revealed a highly controversial plan to develop an LNG export terminal at the former Dupont Repauno toxic waste site.

The Dupont Repauno site (now Chemours) is a RCRA Corrective Action cleanup site (as well as subject to DEP oversight pursuant to NJ remedial State law). See EPA NJ Corrective Action cleanup site list:

https://www.epa.gov/hwcorrectiveactionsites/new-jersey-rcra-cleanup-facilities-contacts

Section 26 of your bill, S3682, would directly impact the cleanup and redevelopment of that site by prohibiting NJ DEP oversight.

Clearly, it is not in the interests of NJ’s environment, public health, the Delaware River, and the public interest to put Dupont/Chemours in total control of the cleanup of that massive toxic site, subject only to the Trump EPA under federal RCRA.

On the basis alone I again urge you to delete Section 26 and hold your bill for further consideration.

Respectfully,

Bill Wolfe

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Murphy DEP LNG Permit Approval & Suspension Exposes A Rigged And Corrupt DEP Permit System

June 13th, 2019 No comments

DEP Permit Regulations Ignore Climate Change

DEP Coaches Permit Applicants & Rubber Stamps 95%+ Of Permits

DEP fails to comply with Legislation mandating Annual Permit Reports

The Public Is Shut Out When Critical “Go-No Go” Policy Decisions Are Made

If the LNG debacle does not trigger major management, regulatory, and permit review reforms at DEP, then nothing will.

[Updates below]

As skeptical as I am, even I was shocked by reading this (excellent reporting by Jon Hurdle at NJ Spotlight):

In New Jersey, the Department of Environmental Protection issued a permit to Delaware River Partners on May 20 to build a new dock and dredge a 45-acre area of the river to a depth of 45 feet below the low-water mark. The permit said nothing about the plan to build an LNG terminal. On June 5, the DEP suspended the permit because of a procedural error but said it would review its action after a 15-day public comment period.

Obviously, the LNG developer – with the knowledge, cooperation and support of the DEP – tried to stealth what they knew would be a hugely controversial fracked fossil fuel permit process that would trigger massive public opposition and protest.

When the scam was outed by diligent environmental activists, suddenly DEP discovered a “procedural error” and “suspended” the permit and provided a mere 15 day new public comment period.

That DEP story is simply not credible. And their remedy is sham.

And if it is true, it exposes gross mismanagement, technical incompetence, and regulatory negligence.

Heads at DEP must roll for “errors” of this magnitude.

But we think this LNG “error” is not an anomaly, but instead exposes the following systemic flaws at DEP – flaws we have personal knowledge and experience of and have written about for years:

1. Mis-mangement in high places

This is not the first management “error” by DEP Commissioner McCabe.

The folks in Vernon are correctly calling for McCabe’s resignation for similar “errors”.  Ditto many other NJ communities that have been betrayed by DEP. (the full list is too long to post here)

How could a DEP permit engineer not know or ask about LNG export activity and approve a permit for this kind of facility? How about his/her supervisor, Section Chief, Bureau Chief, Assistant Director, Division Director, Assistant Commissioner, Deputy Commissioner, legal team, AG’s Office, and Commissioner not ask before the LNG permit went out the door?

At least 50 DEP professionals must have been aware of this project, yet not one had the integrity to internally warn the Commissioner? Not one had the courage to blow the whistle to environmental groups and/or media? They all let this happen? How could that be?

Climate policy is allegedly Gov. Murphy’s number one environmental priority and a major focal point for the Murphy DEP.

If a huge, international LNG export facility on the Delaware River can slip through the cracks in this context, it means that the Commissioner has zero leadership and zero control over her own agency.

McCabe must go. So must her entire management team. Period. Final Straw. The camel’s back is broken.

But I am not optimistic, as the Executive Director of the Pinelands Commission effectively and similarly tried to stealth a gas pipeline through the Pines, and she still serves there in good standing, see:

2. DEP permit regulations ignore climate change and greenhouse gas emissions

As we’ve written, DEP permit regulations ignore climate change, see:

There is a possibility that the LNG permit application did not require disclosure of fossil energy related issues.

Regardless, if a case like this does not force major changes to DEP regulations and permit review practices, we truly are lost.

3. The DEP Permit review process, by design, is rigged and captured by regulated industry

I’ve previously written in detail about how the DEP permit process is rigged:

The DEP permit process is rigged

The permit process is heavily biased in favor of the permit applicant not the public.

The bias is present at the beginning and the end of the process.

At the beginning, months before the project was announced publicly, Transco, NJNG, and SJG were given multiple opportunities to meet with DEP staffers and managers.

Those meetings are known as “pre-application conferences”. They are secret and not subject to OPRA. (Listen to how the Pinelands Commission got caught on tape responding to my criticism of “pre-application conferences” with SJG pipeline.)

Those meetings provide access to DEP technical staff and upper management. They allow permittees to understand how DEP interprets the regulations and how to comply with them. They basically iron out all problems in advance and receive conceptual approval of a project before the public is even aware of the existence of a project.

After many months of technical coordination, the public then gets to comment on draft permits at the end of the process.

In this case, DEP held public hearings on the permit applications, not draft permits.

This process allowed the permit applicants to get another bite at the apple and fix any deficiencies the public identified during comments!

I also wrote more recently to criticize DEP Commissioner McCabe for going right along with all that, including failure to submit legislatively mandated annual “Doria” Permit Activity Reports::

The regulatory game is rigged – no wonder DEP rubber stamps 95% of permits. In fact, DEP stopped writing the annual permit “Doria” report mandated by the legislature after the data in that report revealed that DEP approved 95% of permits – and the other 5% were typically withdrawn and resubmitted and later approved.

This institutionalized corruption is far beyond the informal academic concept of “regulatory capture”:

Regulatory capture is a theory associated with George Stigler, a Nobel laureate economist. It is the process by which regulatory agencies eventually come to be dominated by the very industries they were charged with regulating.

Yet Murphy DEP Commissioner McCabe has written that this practice represents a “broad range of stakeholders”.

Meet the new boss – same as the old boss.

To expand and update that criticism, just days before this alleged LNG permit “error” emerged, I had submitted an inquiry to the DEP’s Office of Permit Coordination.

Here’s how DEP explains the mission of that Office – an incredibly revealing description that shows exactly how oblivious DEP is to issues of regulatory capture and bias and how remarkably out of touch and divorced from the public DEP is:

The mission of the Permit Coordination Unit is to insure that complex multi-media, high value projects receive proactive and facilitated communication and coordination in support of timely, predictable, and positive permit decisions.

We accomplish this by:

  1. Being the primary manager/driver for several large cross- program projects at any given time.

  2. Providing a “one stop”/single point of entry for a second tier of smaller cross- program projects where we will coordinate and facilitate multi program permits but not be primary manager of those projects. Applicants will leave our Permit Readiness Process with confidence that:

    • there is no fatal flaw (early ‘no’ if needed) in their site or project,
    • certainty they are in fact ready to submit permit applications (that no preliminary approvals like LOIs or consistency with WQMPs) are needed or if so that they have been obtained),
    • their project has had the benefit of an informal review and comment on their project by permit reviewers prior to submitting a formal application,
    • they have been introduced to individual program contacts,
    • they have an approximate predictable schedule for permit issuance assuming the submission of a complete and approvable application and fees.
  3. Providing an early, informal review and comment on ‘ideas’ or conceptual projects before applicants invest time and money into more detailed project design i.e. – a general GIS overview of site limitations or encumbrances to determine if it is worth further investing in a project.

  4. Identifying and resolving initial/overarching policy or rule interpretation or process questions by the Department needed to determine the viability of a project prior to entering the permit application process.

I asked DEP just what a “positive permit decision” is and whether they are concerned about an appearance of coaching permit applicants and “regulatory capture”, all while keeping vital information from the public.

Here is a list of questions I submitted to DEP – all of which take on added significance in light of the LNG debacle – to which DEP has refused to respond:

Hi Ruth – I am researching and planning to write about the role and performance of your office.

In a rare mood of fairness, I was wondering whether you might be interested in responding to a few questions and providing relevant data (in coordination with DEP Press Office, of course):

1. How do you respond to the concern that the role and function of your Office is to provide “coaching” to permit applicants, while not providing equivalent services to the public and communities impacted by regulated activities?

2. How do you respond to the criticism that the records for your office regarding “pre-application” conferences and other services you offer to permit applicants are considered by DEP to be exempt from OPRA and therefore your office operates in the dark, without transparency and accountability?

3. Do you charge fees for the services your office provides to regulated entities? If so, please provide fee schedule. If not, why not?

4. How is your Office funded and what are its staffing levels and budget?

5. On of the functions described on your website is:

“Identifying and resolving initial/overarching policy or rule interpretation or process questions by the Department needed to determine the viability of a project prior to entering the permit application process.”

Can you provide a justification for this? How do you respond to the concern that it fails to provide due process and equal access to the public in making important policy interpretations?

6. How do you respond to the criticism that your Office exacerbates problems associated with “regulatory capture”?

7. according to your website:

“Mission of the Permit Coordination Unit

The mission of the Permit Coordination Unit is to insure that complex multi-media, high value projects receive proactive and facilitated communication and coordination in support of timely, predictable, and positive permit decisions.”

What are “positive permit decisions”?

Can you see a serious problem with that in creating false expectations? (e.g. positive could easily be interpreted as meaning “approved”)

8. Can you provide program activity and performance data, e.g. number of cases your office is involved in, types of involvement, and ultimate disposition (outcome)?

9. Do you track and can you provide any environmental data that would identity benefits associated with your reviews?

10. The Department previously published annual “Permit Activity Reports” under the Doria legislation, but no longer does so.

Does your Office maintain that kind of comprehensive permit data? If so, could you provide it? If not, why not? Does any other program in the Department maintain that data? If so, where could I find it?

*11. Does any of the NEPA, EO 215, and/or permit coordination work of your office include reviews of the impacts on climate change, greenhouse gas emissions, consideration of energy efficiency potential and inclusion of renewable energy, or the need for climate adaptation?

I anticipate writing in the next few days and obviously would prefer to have facts and the Department’s views before I write (but am willing to proceed without same). I appreciate your timely reply.

Again, if the LNG debacle does not trigger major management, regulatory, and permit review reforms, then nothing will.

Update #1: 6/16/19 – I just learned that Kirk Moore broke this story back on June 11, 2019, so he deserves the credit, see:

Update #2 – just found out that the Philadelphia Inquirer really broke the story win June 9, see:

The Delaware Riverkeeper Network, in a May 28 letter to federal and state regulators, said the private port’s true purpose is to export LNG produced in northern Pennsylvania. “This looks to us like a deliberate cover-up,” Maya van Rossum, the head of the riverkeeper network, said in a statement. ~~~ end update#2

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Whitman Is a Climate Hypocrite & Has The Blood Of Thousands of 9/11 First Responders On Her Hands

June 13th, 2019 No comments

NJ Spotlight Gives Whitman An Unconditional Platform

A Whitewash And Act of Gross Revisionism

Yesterday, NJ Spotlight gave former Gov. Christie Whitman a platform, see:

That is an act of journalistic negligence and moral nihilism.

Many Spotlight readers may not know of Whitman’s environmental, climate and 9/11 record when she served as NJ Governor and Bush administration EPA Administrator.

So, we feel obligated to call out Spotlight for that egregious act and provide context and a few details of Whitman’s record for readers.

First of all, Whitman has the blood of thousands of 9/11 first responders on her hands, see:

Second, as NJ Governor, Whitman’s prime slogan was NJ is “Open For Business”, a slogan she used to systematically weaken NJ’s environmental laws and regulations and cripple DEP as an institution.

The former Bergen Record won a journalistic award for exposing Whitman’s “Open for Business” record, which included not only environmental rollbacks and corporate welfare, but corrupt pay to play practices.

Whitman’s US Senate Confirmation hearing transcript provides testimony that comprehensively  documents that record, which was one of “failing a core mission”. Don’t miss my friend Bill Neil’s testimony.

On Whitman’s record, no need to take my word for it. Skeptics can read Whitman’s STARR Report (see p. 46 summary) “Strategy to Advance Regulatory Reform” (Department of State, Office of Business Ombudsman, July 1995) and read Whitman’s first State of The State address for examples of her no holds barred assault on DEP and regulation. Whitman abolished the Office of Environmental Prosecutor via Executive Order #9 and created the anti-regulatory Business Ombudsman’s Office via Executive Order #15) Whitman sought to roll back stricter NJ state standards to federal minimums via Executive Order #27. These are just a few of Whitman’s attacks that have been expanded upon by Gov. Christie and embraced by Gov. Murphy.

Full disclosure: I was forced out of DEP by Whitman DEP Commissioner Bob Shinn and his legal Counsel Mike Hogan (the Judge Hogan of Exxon NRD infamy) for blowing the whistle on Whitman’s efforts to lie to the public and suppress science and derail regulation regarding health risks of mercury in in freshwater fish. Surely, I have many axes to grind. That’s why all of the above is supported by links to the official documents.

Of course, with the exception of the Stop and Frisk episode, virtually none of this can be found on Whitman’s Wikipedia page, which has been scrubbed.

Third, Whitman is a hypocrite on climate change. For details, see:

A former public official with this kind of record has no place of respect and credibility in our current public debate.

Any effort to rehabilitate that record and seek public redemption requires explicit remorse and apology, which Whitman shows no signs of.

And NJ media outlets are obligated – professionally and morally – to provide the context and the history.

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“Tweaking” The Toxic Titanic

June 13th, 2019 No comments

Skids Greased for Rapid Passage of Further Privatization Of NJ’s Toxic Cleanup Laws

Literally no public debate or involvement in statewide cleanup program

DEP & Legislative Oversight Have Devolved To Gibberish And Sleaze

“Even the best program, after 10 years, may need some tweaks,’’ [Senate sponsor and Chairman] Smith said. ~~~ NJ Spotlight

Things are moving remarkably quickly. It is hard to believe, but proposed legislation about to be passed actually goes beyond the reality I described in this post 8 years ago:

Since my initial set up post on the current proposed legislation to further weaken NJ’s privatized site cleanup program, several developments have occurred:

1) I’ve listened to the Senate Committee hearing testimony (including the DEP’s);

2) the Assembly Committee released its version;

3) the Senate Committee scheduled a June 17 vote to release the bill, and

4) NJ Spotlight finally wrote a misleading story today about the issue (after their shameful set up propaganda piece on the day of the Senate hearing by Langan Engineering,  one of NJ’s worst “pay to play” engineering firms.

The Star Ledger editorial Board (on 1/2/11) called Langan’s practices “sleazy”:

Langan Engineering & Environmental gave $25,000. It received $2 million from state agencies last year, and a senior associate of the firm sits on the state’s Site Remediation Professional Licensing Board, which oversees cleanups of contaminated sites. … 

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

The Langan “senior associate of the firm” referenced but not named in the SL editorial is George Berkowitz. He is a former DEP Assistant Commissioner who managed DEP’s cleanup program (revolving door) and was heavily involved shaping the legislation that privatized it. Langan has LSRP employees, is involved in and earns significant profits from many toxic site cleanups, and has an LSRP Board member as a manager at the firm  and therefore huge conflicts of interest. Langan had 9 professional employees named to the DEP Stakeholder group that literally wrote the DEP cleanup regulations. None of these key facts were even mentioned as caveats in the NJ Spotlight propaganda piece or subsequent coverage.

So, if that isn’t enough to turn your stomach and open your eyes, let me try to clarify a few key issues.

1. How many sites have been completely cleaned up?

NJ Spotlight uncritically reported DEP’s totally misleading claim:

In the last decade, the Site Remediation Reform Act, in bureaucratic jargon, has reduced the number of sites awaiting cleanup from more than 20,000 to about 13,500, according to Mark Pedersen, an assistant commissioner of the state Department of Environmental Protection.

DEP’s testimony was gibberish.

DEP’s data is based on an absurd and self interested bureaucratic classification of sites that has no scientific basis.

DEP data and classification of sites (“complex”???) are designed to intentionally mislead the public, exaggerate the number of cleanups, and downplay the risks to public health and the environment.

First, DEP has no credible scientific basis to make any statement about the performance of the cleanup program because DEP has failed to implement or release to the public the “Remedial Priority System” (RPS) mandated by the Legislature over a decade ago. Without the RPS, DEP is literally flying blind and making shit up.

The legislature mandated that DEP adopt and implement the “Remedial Priority System” (RPS), which not only provides a valid, structured, risk based scientific basis for classifying and managing toxic sites, it also includes triggers for direct DEP oversight of high risk sites.

The Legislature also mandated that DEP publicly disclose a list of risk based sites in NJ.

The RPS originally was required by provisions of the Spill Act enacted over 30 years ago. More recently, the RPS agains was mandated by the 2009 Site Remediation Reform Act (“SRRA”, phonetically as in SURRENDER).

The legislature mandated that the RPS be adopted and implemented in DEP’s cleanup program by May, 7, 2010 (one year after enactment). DEP has flouted that legislative mandate for over 9 years.

Without a RPS, DEP is flying blind and has no scientific or factual basis to make any credible public statement.

Second, the DEP site classification scheme (“complex sites”???) and program “data” greatly exaggerate the number of cleanups by counting partial cleanups (for soil, not groundwater), and allows cleanups to be counted for a portion of the entire site. The so called “cleanup” data are not site wide for soil and groundwater and natural resources.

The proposed legislation would make this problem worse by re-defining “remediation” to include partial cleanup or a cleanup for a portion of a site. People who purchase land or finance and/or redevelop contaminated land can easily be misled by this chicanery in how DEP classifies site cleanups. AND recall that the Kiddie Kollege tragedy was partially caused by confusion about the actual contamination of the site.

The real question reporters, legislators and the public need to ask DEP is this:

How many sites have undergone site wide permanent remedies, for soil and groundwater and vapor intrusion- including restoration of or compensation for damaged natural resources – without engineering and institutional controls?

That is the gold standard and it is a vanishingly small number of sites.

Ironically, the NJ site remediation program generates an enormous amount of real data on toxic contamination of soil, groundwater and biota at thousands of sites across the state. This data is ignored, very difficult for the public to access, and distorted by DEP’s gibberish.

DEP is just shuffling numbers and misleading legislators and the public. This is unprofessional, disgraceful and intolerable.

2. Are public health and the environment being protected?

In contrast with every other NJ environmental regulatory program – clean air, clean water, land use, etc – DEP does not even track and publicly report on trends in soil, groundwater, ecological, or public health contamination and impacts of thousands of toxic sites across the state.

That is a remarkable abdication and the privatization of the program made the problem much worse.

Worse, current cleanup laws and DEP soil and groundwater standards and cleanup regulations have numerous huge loopholes that let polluters off the hook for costly and protective site cleanups:

  • highly contaminated toxic soils can be “capped” (engineering control) and left in place
  • groundwater pollution can be left in place under a “Classification Exemption Area” (CEA – “institutional control”) which waives the groundwater standards;
  • there are multiple “exit ramps” to avoid public health protective remediation of risks from  “vapor intrusion” into occupied buildings
  • there are no ecological based cleanup standards (merely screening levels under the technical control and discretion of private consultants), therefore natural resources damaged by toxic pollution are often not restored or fully compensated for.
  • there is no public involvement in cleanup decisions, which are made by polluters and therefore almost always sacrifice protections of public health and the environment to reduce the corporate polluters’ cleanup costs and liability.

Here’s are just some of the real questions legislators, reporters and the public need to ask DEP to provide data for include:

  • what are the known health effects of exposure to toxic contamination and are these exposures and health effects tracked by DEP and/or DOH?
  • what are the levels and trends of toxic chemicals found in soil, groundwater, wildlife, and people?
  • what are the levels and trends of toxic contaminants in air, water, sediments, food and drinking water?
  • what is the current science on cumulative and synergistic effects of multiple exposures to multiple toxic pollutants?
  • How – precisely, with actual field data – is the DEP toxic site cleanup program influencing all these trends?

Finally, I’ll close this post with a final key point, which NJ Spotlight buried in the final paragraph (emphasis mine)

Environmentalists believe the lack of a ranking system leads the market to determine what sites are cleaned up — the ones that can be profitably remediated the quickest — because developers do not want to get involved in complex and expensive cleanup sites.

Yes, the Legislature has mandated that the “market” is in control of our public and environmental health from the risks of toxic pollution.

The toxic site cleanup program has become a real estate redevelopment program.

And even DEP mangers have prostituted their professional reputations to the real estate market. For the dirty details, see:

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NJ Senate Bill Would Prohibit DEP Oversight of Some of NJ’s Worst Toxic Industrial Sites

June 10th, 2019 No comments

Ban On DEP Oversight Would Put Corporate Polluters In Control of 81 Of NJ’s Worst Sites

Remarkably, this stealth rollback received no explanation, justification, or testimony

It is not in the public interest, would undermine community involvement in cleanups, increase delays in cleanups, and would increase and prolong risks to human health and the environment.

This post is a followup to my prior post on Senate bill S3682.

Before reading, as a reality check, you might want to hit this link and briefly look at this EPA Region 2 list of 81 NJ RCRA Corrective Action Program industrial toxic sites. Look at those corporate polluters!

Then consider that Chairman Smith’s bill would prohibit DEP from assuming oversight at these sites – regardless of whether they are violating or flouting NJ statutory cleanup deadlines or NJ DEP cleanup regulations and/or cleanup standards – thereby putting corporate polluters in perpetual unilateral control of the cleanups! (subject only to the rubber stamp of the pro-industry Trump EPA and industry friendly federal RCRA regulations)

(Here is one illustration of the stakes of this abdication: DEP and US EPA share joint oversight of a RCRA Corrective Action cleanup at one of NJ’s worse toxic sites, the Dupont Pompton Lakes site. While Dupont has delayed cleanup and restoration of natural resources for over 35 years, in theory, DEP could invoke the NJ Spill Act and assume direct oversight and complete control of the cleanup, and send the cleanup bill to Dupont. In theory, this NJ DEP power puts pressure on Dupont and US EPA. Without it, Dupont can act with impunity as there is no federal EPA enforcement stick. If you hit the site specific links in the left hand column on the link I provided, here’s how EPA reports the status of that cleanup:

Human Exposure under Control:

No status has been recorded. ~~~

Thirty five years later, and people are still exposed to Dupont’s toxics. ~~~ end Note]

OK, now that I have your attention, read my letter to Chairman Smith and contact him and your legislators to stop this corporate sellout.

[Note – the Assembly version, A5293 was released by Committee today. Senate Chairman Smith promised to release the bill from his Committee next Monday, June 17. This bill is moving incredibly quickly – the skids are greased. Totally corrupt. Totally.]

Dear Chairman Smith –

This brief note follows up and clarifies one point in my prior June 4, 2019 email regarding the impact of the bill on cleanups at sites with federal involvement.

Since that initial review, I listened to the testimony before your Committee on the bill. I will be submitting additional comments, but today will focus only on Section 26. Curiously, there was no testimony or publicly presented summary or policy justification provided for Section 26.

Section 26 of your bill, S3682, would amend current law regarding the criteria and conditions that trigger and under which DEP is required to (“shall”) assume direct oversight.

The amendments in your bill would prohibit DEP (“shall not undertake direct oversight”) from undertaking direct oversight, among other things, when: (emphasis mine)

(2) the contaminated site is subject to federal oversight, the person has made timely submissions to the department, and the person was unable to meet the applicable timeframe due to the performance of additional review by the department pursuant to subsection c. of section 21 of P.L.2009, c.60 (C.58:10C-21).

Among an unknown total universe, the subject language would apply at least to 81 RCRA Corrective Action Program sites, see this EPA Region 2 list:

https://www.epa.gov/hwcorrectiveactionsites/new-jersey-rcra-cleanup-facilities-contacts

These RCRA sites are some of the worst and highest risk industrial toxic sites in NJ.

Under federal RCRA Corrective Action regulations, control of the cleanups at these sites is under the control of major corporate polluters, subject to extremely lax Trump EPA oversight and industry friendly RCRA corrective action regulations.

Your bill would prohibit and eliminate the DEP’s authority to assume direct oversight of these high risk sites for failure to meet cleanup deadlines (and even worse performance, see following point), and thereby perpetuate corporate control of the cleanup, regardless of whether these corporate polluters flout NJ’s statutory cleanup deadlines and requirements.

That is extremely ill advised policy

Additionally, the proposed amendment would apply to additional reviews triggered by Section 21, of P.L. 2006, c.60.

Those additional reviews are triggered by, among other criteria, conditions and/or events:

(1)   the contamination at the site poses a significant detrimental impact on public health, safety, or the environment as determined by a receptor evaluation or the site is ranked by the department in the category requiring the highest priority pursuant to the ranking system developed pursuant to section 2 of P.L.1982, c.202 (C.58:10-23.16);

     (2)   the contamination at the site may affect a licensed child care center, school or other sensitive population;

     (3)   the contaminated site is located in a low-income community of color that has a higher density of contaminated sites and permitted discharges with the potential for increased health and environmental impacts, as compared to other communities; or

     (4)   State grants or loans are being used to remediate the site or area of concern.

  1. The department may perform additional review of any document, or may review the performance of a remediation, if:

     (1)   the site or a portion thereof is in a brownfield development area or other economic development priority area;

     (2)   the remediation is subject to federal oversight;

     (3)   the person responsible for conducting the remediation or the licensed site remediation professional conducting the remediation has been out of compliance with P.L.2009, c.60 (C.58:10C-1 et al.), P.L.1993, c.139 (C.58:10B-1 et al.), P.L.1986, c.102 (C.58:10A-21 et seq.), P.L.1983, c.330 (C.13:1K-6 et al.), or P.L.1976, c.141 (C.58:10-23.11 et seq.), or any rules and regulations adopted pursuant to those laws;

     (4)   the contaminated site has had an impact on a natural resource;

     (5)   an oversight document, administrative order or remediation agreement is in effect for the contaminated site that requires department review and approval of submissions;

     (6)   there is substantial public interest in the contaminated site;

     (7)   the person responsible for conducting the remediation has proposed the use of alternative or site specific remediation standards for the contaminated site;

     (8)   the remediation requires the issuance of a permit by the department;

     (9)   the use of the contaminated site is changing from any use to residential or mixed use;

     (10)  the submission may not be in compliance with any rules and regulations applicable to contaminated site remediation; or

     (11)  the remediation may not be protective of the public health, safety, or the environment.”

Again, these are the LAST sites that DEP should be prohibited from assuming direct oversight for failure to meet cleanup deadlines.

It is not in the public interest, would undermine community involvement in cleanups, increase delays in cleanups, and would increase and prolong risks to human health and the environment.

I strongly urge that you delete proposed Section 26 from your bill.

Respectfully,

Bill Wolfe

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