DEP Commissioner Bob Martin (and the Red Tape Review Group Report) have claimed that Martin abandoned the DEP’s proposed 5 ppb perchlorate drinking water standard “pending the issuance of federal standards from EPA this summer“. (Source: Red Tape Report, Appendix G, @page 113 HERE.]
However, EPA documents we have received via a Freedom of Information Act (FOIA) request show that Martin’s claim is false.
EPA specifically advised Martin that any EPA national drinking water standards would not be in effect for 6 1/2 years. Martin knew that his claim that EPA would “issue standards this summer” to be false at the time he made it. In other words – he lied.
On March 16, EPA reiterated prior EPA guidance and told Martin:
They [Martin] also asked whether the final EPA regulatory determination expected this summer would include a specific MCL or single health based value for perchlorate. I explained that it might give an indication as to what life stage we are focusing on, but it would not include a proposed MCL or MCLG, those values would be part of a proposed rulemaking. ….
They were also interested in the time frames by which NJ would have to implement a federal standard if the agency decides to regulate perchlorate. I explained that the maximum timeframe under the SDWA [Safe Drinking Water Act] is three and a half years to promulgate and 3 more years to implement for a total of six and a half years following a EPA decision to regulate perchlorate.
I hope he is called out on this tomorrow in Senate Budge Committee oversight.
Press Release
For Immediate Release: Tuesday, April 27, 2010
Contact: Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337
New Jersey Rationale for Water Quality Delay Is Bogus
Commissioner Claim of Imminent EPA Perchlorate Action Contradicted by E-Mails
Trenton – A decision last month to abandon a multi-year effort to stem the spread of perchlorate, a chemical found in rocket fuel, by New Jersey’s Department of Environmental Protection Commissioner on the grounds that federal regulation would be forthcoming “this summer” is contradicted by e-mails from the federal experts who briefed state officials, according to documents released today by Public Employees for Environmental Responsibility (PEER). As a result, New Jerseyans will be exposed to growing levels of this dangerous chemical for several years to come without any governmental protection.
E-mails obtained by PEER under the Freedom of Information Act reveal that, contrary to claims by Acting DEP Commissioner Bob Martin, staff from the U.S. Environmental Protection Agency told him that –
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- There was no certain date for any federal action, although one official had predicted that EPA may be poised to take a preliminary step by this summer;
- That preliminary step would not contain a hard limit or maximum contamination level (MCL) as the proposed New Jersey standard would have. At a minimum it would take EPA another two to 3 years to develop even a proposed MCL; and
- The earliest that any federal standard could be implemented in New Jersey would be 6½ years at the earliest from when EPA decided to act, if it decided to act.
Even though Mr. Martin had months to work on the perchlorate issue, he waited until March 12th, just four days before a final deadline to either adopt or reject a proposed state water maximum contaminant level (MCL) of 5 micrograms per liter (ug/L) for perchlorate in drinking water. Martin received his most detailed briefings from EPA on March 16th, the actual day of the deadline. Later that afternoon DEP issued a press release announcing the decision to jettison perchlorate standards, citing impending EPA action.
“Mr. Martin misrepresented the facts, assuming that no one would check what EPA actually told him,†stated New Jersey PEER Director Bill Wolfe, a former DEP analyst, noting that state scientists had spent years on their risk assessment using the latest and most rigorous science. “These e-mails show that Bob Martin was scrambling at the last minute to find any reason to overlook the science and the public health concerns to justify the anti-regulatory decision he had apparently already made.”
As yet, there is no federal standard (although there is a guideline of 15 ug/L) while California and Massachusetts have 5 ug/L standards in place. Perchlorate has been found in approximately one-sixth of New Jersey public water systems and 1/3 of residential wells sampled. The chemical affects thyroid function, especially in infants, pregnant women and their fetuses.
New Jersey’s proposed perchlorate standard could have been finalized when EPA Administrator Lisa Jackson served as DEP Commissioner, but she unaccountably delayed her decision. Now New Jersey’s fate on this issue is again in Ms. Jackson’s hands under a time-line that is no less elusive than before.
“Waiting for EPA on perchlorate may be like waiting for Godot,” added Wolfe. “State governments are supposed to protect their citizens, not pass the buck to Washington.”
###
See the e-mails from EPA experts recounting what they told Martin
View the DEP press release stating Martin’s reasons
http://www.nj.gov/dep/newsrel/2010/10_0017.htm
Look at the background of the proposed New Jersey perchlorate standards
http://www.peer.org/news/news_id.php?row_id=1310
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
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Court Favors Plaintiffs – Remands Hudson Farm Commercial Shooting Preserve License for Reconsideration
Court Decision Requires New Jersey Division of Fish & Wildlife to Now Serve the Public’s Interest
August 9, 2010 Appellate Div: ROSEFF et al v. MMK REINSURANCE, LTD.
Six residents1 of Byram and Andover Townships, NJ, representing themselves before the Appellate Court, have successfully fought both the Attorney General of NJ and Mr. Peter Kellogg – the billionaire holder of the Hudson Farm Commercial Shooting Preserve (CSP) license. The CSP License previously permitted the release of 23,000 birds per year to be shot alongside their community, raising concerns of noise, safety, predator attraction, home valuation and pollution of the local water supply from lead shot. The CSP is located adjacent to a playground with recreational fields, a bird sanctuary and wetlands and over a regional aquifer. The license was issued although a specific statute required a determination of “no conflicts with a prior reasonable public interestâ€. On August 5, 2010, the Appellate Court decided that the Division of Fish & Wildlife (DFW) has misinterpreted the statutory language. The DFW also has never adopted regulations implementing its authority to issue CSP licenses and has no requirement that adjacent landowners be given notice and for opposition to be considered. The Court has remanded the license to DFW for reconsideration of its licensing decision and to develop the proper criteria and process to determine “no conflicts with a prior reasonable public interestâ€.
For 3 years, residents of Byram and Andover Township have fought a complex, large shooting range land use proposal that is surrounded by 450 existing homes. One aspect of the use has been State licensed bird shooting (with local use approval in dispute). After 2 meetings with the DFW, each punctuated with a DFW statement that there is no interpretation for the statute focused on protecting the public (“no conflicts with a prior reasonable public interestâ€), the six Plaintiff’s1 filed a legal complaint. There simply was no evidence that the DFW tried to understand the neighborhood and the public’s prior reasonable interest. For 28 months, the pro se Plaintiffs travelled through Superior Court’s Chancery and Law Divisions and the Appellate Court, received charges of harassment from the billionaire’s lawyer and had their “first day in court†initiation with their Appellate Court oral arguments.
The Court expressly rejected the State’s legal argument that safe shooting distances should be the determinant of “prior reasonable public interestâ€. It was already required. “This is but another Government Regulatory body, as we have seen with our finance and offshore drilling oversight bodies, that has forgotten who they protect and who is to be regulatedâ€, said Plaintiff Mr. Harvey Roseff. “Incredibly, just recently the Federal EPA pressured DFW to close four of its shooting ranges due to shotgun debris impacting wetlands. I can only hope that in the remand process for this CSP, we see proper criteria and procedures implemented for the noise, toxic debris control, compatability with neighboring residential property use and the other prior reasonable public issues as to which we have expressed concern for the public interest.â€
The Court’s decision stated that they “…ordinarily accord considerable deference to an administrative agency’s interpretation of its governing statute. …Deference is not justified in this case because the agency’s interpretation is not supported by the clear language of the statute.â€
The Court stated that “Looking at the plain meaning of the language before us, which requires that “[t]he operation of [the] shooting preserve. . . not conflict with a prior reasonable public interest,” we conclude that the Legislature wanted DFW to compare the prior use of the property with its proposed use as a shooting preserveâ€. Plaintiff Mr. Fred Gillespie, who for 26 years has lived across the street from the proposed shooting range stated “sporadic hunting has occurred on the farm property for years, but it was tightly restricted in terms of seasonal timeframes, Sunday restrictions and most importantly, game count (only two pheasants per hunter). This CSP operation releases for a shooting event 50, 100 and at times more than 500 birds. The continual shooting barrages are totally inconsistent with prior use and reasonable public interest.â€
Just 4 miles away, Mr. Kellogg runs another CSP. “Proliferation of this impactful land use is not in the public’s interestâ€, said Mr. Roseff
The court went further to state that local government and land use boards have authority over land use. They were clear in stating, “Because the zoning ordinances applicable [to this property] do not permit commercial uses, that area of the preserve cannot be operated as a commercial venture.†Plaintiff Adrian Gonzalez, who lives in the neighboring Forest Lakes community and serves on their Board of Governors stated, “The fact that they put the authority back in to the local government’s hands is a big win for us. Our 450 home community as a whole has been very active in fighting the CSP at Hudson Farms, filling town council and planning board meetings to capacity to voice their opposition.â€
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1 Plaintiffs: Harvey Roseff, Fred Gillespie, Josephine Lee, Adrian Gonzalez, Merwyn Lee and Lorna Lee
Press Release Contact: Harvey Roseff, 33 Sleepy Hollow Road, Andover, NJ 07821
Court Decision: http://www.judiciary.state.nj.us/opinions/a6209-07.pdf
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