Bad Day for DEP – Admits Leachate Not “Natural”; Faces Senate Attack on Shellfish Program; and Sham Gas Pipeline Deal Exposed

It was an unusually bad day today for DEP on at least three fronts. They admitted they made a mistake in calling landfill leachate “natural”; they admitted that their State Land lease appraisal methodology was seriously flawed; and they engaged in unprecedented and transparent bad faith in negotiating with the Senate Environment Committee  Chair and a republican Senator.  Here’s these stories in a nutshell.

[Update – see point #2 –  this is getting rather nasty – Kirk Moore writes the real story in Asbury Park Press: DEP: Oyster restoration project must be removed

Baykeeper and its supporters say the confrontation only arose because the DEP has failed to maintain adequate shellfish patrols, a shortcoming cited by the U.S. Food and Drug Administration in its annual reviews of New Jersey’s shellfish program. DEP officials say they cannot provide enough security for oyster projects in prohibited waters because they are hard-pressed to maintain patrols to keep the shellfish industry open.

“They need to buy a vessel, they need to beef up patrols” over the rich Sandy Hook-Raritan Bay clam grounds, said Bill Wolfe, a former DEP worker and New Jersey state director of Public Employees for Environmental Responsibility, who obtained and released a copy of the 2009 FDA assessment.

The federal report by longtime shellfish specialist Gary Wolf found the DEP’s marine law enforcement patrols were too infrequent to meet federal standards on 70 percent of the state’s shellfish areas.]

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1. Riegle Paper Co. landfill – toxic leachate not “natural”

 We recently criticized DEP’s claim that an old landfill discharging leachate to the Delaware River was “natural” – see: DEP calls toxic landfill leachate “natural”

Today’s Hunterdon County Democrat story vindicates that criticism. DEP rescinded the “natural” remark and agreed to conduct environmental sampling and cleanup. (see: Orange goo from Alexandria Twp. landfill will be tested

Many thanks to the diligent efforts of Alexandria resident Rick Toone who flagged the problem, and good old fashioned reporting by Teresa Fasanello.

Give DEP credit for admitting mistake and agreeing to do the right thing. I filed OPRA and will keep you posted once I get a chance to review the file.

 

2. Eat NJ shellfish at your own risk

This story sheds a really negative spotlight on Commissioner Martin’s judgement and strongly suggests DEP engaged in bad faith during legislative testimony today. 

Yesterday, we criticized Martin for using shellfish restoration research projects as a diversionary scapegoat, while ignoring far more significant risks to public health. Martin seeks to divert atttention from the fact that DEP has failed to comply with FDA requirements and not honored previous commitment to FDA to correct deficiencies.

The most recent FDA evaluation Report found that the NJ shellfish program does not meet FDA food safety standards.  The FDA Report repeated prior report findings.

A March 2010 FDA Report found that cutbacks in state inspections and enforcement “could negatively impact the public health as well as New Jersey’s large shellfish industry”. Critical state reductions come just as the state is supposed to expand its disease prevention oversight on oysters and DEP Commissioner Martin is under fire for his termination of shellfish restoration research projects, under the guise of meeting FDA requirements (despite one of the dumbest Star Ledger editorials ever, which absurdly concluded that NJ could no longer afford basic food safety protections:

At a time when New Jersey is throwing people off health care programs and cutting tax credits for the working poor, we can’t spend money to boost our (shellfish food safety) patrols.

 (see:  CHRISTIE CUTS JEOPARDIZE JERSEY SHELLFISH SAFETY — New FDA Report Details Risks to State’s Billion Dollar Shellfish Industry

Today, a bill by conservative republican Senator Cardinale to over-ride Martin’s decision was heard in the Senate Environment Committee. (read Cardinale’s bill (S2122).

DEP took a pretty good beating and it is clear that there is legislative support for Cardinale’s bill.

Let’s be super scientific in our characterization and just say that scientists for Baykeeper, Rutgers, and the Hudson River Foundation absolutely kicked DEP’s ass – it was no contest, stop the fight (even Senator Cardinale, someone I don’t think I ever agreed with, made sense).

Chairman Bob Smith tried to save face for DEP by holding the bill and gave DEP an opportunity to reach some compromise with Baykeeper and Cardinale.

DEP Assistant Commissioner Cradic agreed with Smith and said she was committed to reaching a negotiated solution. Chairman Smith invited Senator Cardinale and Baykeeper to a meeting to work it out.

Smith clearly warned Cradic that if DEP didn’t reach a compromise soon, then the bill would be passed quickly.

Remarkably, after agreeing to work on a solution, not 2 hours afer the Senate hearing, DEP issued a press release announcing an enforcement action against Baykeeeper. (read the Star Ledger and Bergen Record stories)

I have never seen anything approaching this kind of bad faith by DEP in 25 years in Trenton.

But, the narrow focus of the hearing on shellfish gardening ignored the gorilla in the room – the far larger FDA compliance and risk issues. Those issues are not going away, so Martin’s little gambit will eventually be exposed.

 

3. Sweetheart gas pipline deal

There’s no way to sugar coat this one – the deal amounted to theft, deception, and coverup – to a transparent and shameless degree that is unusual, even by Trenton’s standards of corruption.

Last week, we wrote about a DEP sweetheart deal to lease forested water supply watershed state park lands to Texas based Tennessee Gas Co. (see: Gas Pipeline Deal Just One Example of Far Larger Problems at DEP

In anticipation of today’ hearing, we expanded that criticism: MARCELLUS GAS PIPELINE’S CHEAP PATH THROUGH JERSEY PARKLANDS — Paltry $45,000 for 24-Year Lease on $2 Billion Pipeline Up for Quick Approval

While the deal was again severely criticized from all quarters, the State House Commission today approved the deal.

Only one legislator, Senator Bob Smith (D-Middlesex) opposed the deal. Smith complained  that the State was not fairly compensated by the $45,000 negotiated by DEP. Smith said the lease value should be based on gas pipeline revenues. Smith opposed the 24 year term DEP negotiated as a transparent attempt to circumvent public hearing requirements (an extreme abuse designed to cover up a really bad deal) and challenged DEP land value cap of a maximum of $7,500 per acre for restoration of high value upland forest. 

Assemblyman Cryan, who at the prior July 2 SHC hearing said the deal was so bad it “shocked the conscience” (click for 7/2 hearing transcript), voted in favor of the deal today after Senator Cardinale moved to increase the DEP’s negotiated $45,000 compensation value fourfold to $180,000.

Wonder who got to Cryan?

The deal was so dirty that even the Attorney General’s Office reversed themselves.

On July 2, the AG took the unusual step and ruled that Senator Kyrillos could not vote because he had not attended the hearing or listened to the testimony. This apparently outraged Kyrillos, who arrogantly saw it as a challenge to his power and legislative perogatives.

Today, in what can only be described as an unprincipled capitulation, blow to the concept of representative democracy, betrayal of the public trust, and promotion of the back room deal, Deputy AG Gary Kotler reversed his own July 2 opinion and said Commission members could vote, even if the did not attend the hearing hear the testimony, or review transpcripts!

On a positive note, DEP admitted that their lease valuation method was flawed – again vindicating our criticism – and pledged to reform the program and renegotiate existing and new leases and easements for utility lines. Based on OLS audits, there are perhaps hundreds of easements and utility lines involved, suggesting a potential to achieve thousands of acres of mitigation and millions of dollars is renegotiated fair market value compensation, so this kind of reform could be huge.

Star Ledger coverage: N.J. commission approves gas line construction through Highlands region

All in all, while we’ll note vindication, a small win on the Tennesse gas lease deal, and potentially significant reforms, it was a very bad day for DEP.