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Deregulation and Privatization Combine to Return NJ To A Toxic Polluter’s Haven

mer·ce·nar·y [mur-suh-ner-ee] working or acting merely for money or other reward; venal. Any hireling.

Just ask yourself these kinds of questions:

• Is the guy with a dump truck and backhoe that’s been removing gas station tanks as credible, reliable, and professional as your Doctor, lawyer, engineer, or architect?
• Is the industry paid “consultant” with who knows what academic credentials as trained, trustworthy, and credible as a University professor?
• Is there a Hippocratic Oath (First, Do No Harm), developed science, accredited academic program, established professional code of responsibility, and ethical culture guiding these mercenaries? Is it possible to wave a legislative wand and create all that in one stroke and dismantle government oversight?
• Would you put the health of your family in these mercenaries hands, with no effective government oversight?

The “regulatory relief” driven Christie DEP thinks so.

After working quietly behind closed doors for over a year with a private industry group I will call mercenaries (AKA “Licensed Site Professionals – or LSP’s, the guys the Christie DEP calls “customers”) and lobbyists for the chemical industry and Chamber of Commerce, the DEP today held a 9:00 am early bird Trenton public hearing on final rules to govern the cleanup of toxic sites.

The DEP proposal is a hefty 946 page tome (read it here). DEP conducted no public outreach on this proposal and there were no fact sheets or other explanatory FAQ like documents for public consumption. And because most news reporters don’t roll out of bed till after 9 am, of course they were not there to report on the hearing.

The magnitude of the proposal, the complexity, the public health significance, the dominant industry influence, the lack of public involvement in and transparency of the stakeholder process, and the manner in which the public hearing was conducted are extraordinary and unprecedented in my 30 year career.

Gee, one might rationally think that DEP was intentionally trying to limit public participation.

The process for drafting these rules was so dominated by regulated industry that it makes the notorious Dick Cheney Energy Task Force seem like the League of Women’s Voters – the May 31, 2011 Bergen Record wrote about that alone (see: Polluters rewriting rules for site cleanup

Key committees writing rules for New Jersey’s new program to clean up contaminated sites are made up entirely of the polluting companies and their contractors.

The 16 committees, which have been putting together rule and guidance documents, include no one from environmental or resident advocacy groups, no health specialists, and no outside experts who aren’t affiliated with the cleanup industry.

The linkage between political “pay-to-play” donations and access prompted a Star Ledger editorial about how one engineering firm dominated the process:

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.

None of this is criminal. To qualify as a bribe, evidence would have to show that these payments were explicitly linked to winning government favors. No one has alleged that here.

But Christie himself, when he was a federal prosecutor, favored the ban on big donations from firms doing business with the government.

He understood that it’s a sleazy practice that puts both parties within winking distance of a bribe, and that it engenders widespread mistrust.

Aside from these corrupt tendencies, the rules themselves represent a massive bait and switch.

While the mercenaries and their polluter paymasters did “convince” the Legislature to privatize the broken DEP cleanup program in 2009,  the law did provide some safeguards of the public interest, including:

• DEP would retain direct oversight of the “worst” high risk sites
• the mercenaries would only control low and moderate risk sites
• DEP’s existing stringent cleanup standards and technical requirements would remain in place
• the LSP’s would be subject to strict auditing and enforcement sanctions

But those backstops have been abandoned and thrown out the window in the rule-making phase.

• The rules do NOT include the “Remedial Priority System” (RPS) mandated by law and necessary to assure that DEP retains the high risk sites.
• The rules would put the mercenaries fully in charge of determining if a site is polluted, how to clean it up, and when its been cleaned up, with no DEP oversight.
• The mercenaries can now merely certify that a site has been cleaned up and no further action is required. Incredibly, this certification eliminates any future liability from State lawsuits to compel cleanup
• Mandatory regulations are being abandoned in favor of voluntary and unenforceable Guidance
• audit requirements are vague, and do NOT include field audits, making fraud detection and enforcement very unlikely

These decisions – how to delineate the extent of soil and groundwater pollution, how to cleanup, and whether an site is adequately cleaned up and safe – not only involve many millions of dollars, but require the exercise of professional judgements that determine whether nearby residents will get cancers from drinking polluted water, ingesting toxic soil, whether kids breathing toxic vapors in their basements are safe, and whether we have healthy fish and wildlife.

These are all essential government functions that should never be made by private mercenaries with an economic stake in the outcome.

Does anyone think that private LSP firms will attract corporate clients by stringently protecting public health in a way that costs their corporate clients tons of money? Or that an individual employee of an LSP firm will advance their career, get raises, and be promoted for being a hard ass and diligently doing his/her job?

The economic incentives and lax oversight mechanisms actively promote cutting corners and continuing the LSP role to act as a mercenary, not a professional.

Obviously, any rules to implement such a program with inherent conflicts of interest would require strong transparency, monitoring, public oversight, auditing, and enforcement safeguards. Academic and professional credentials would need to be robust (far more than DEP “integrity review” for the solid waste industry).

But none of that happened in the rules DEP proposed.

Even more absurd, the rules even remove DEP from any role in determining the validity of LSP certifications in revoking false certifications, instead relying on LSP’s to revoke their own false certification.

Now how stupid is that? Does DEP think an LSP will voluntarily revoke their own certification? That’s about as likely as a bank robber voluntarily giving back the money and putting on the handcuffs.

But enough of the process and background issues, let’s get to today’s hearing.

The DEP hearing officer opened the hearing with a brief statement that called the mercenary drafted rules a “new paradigm”.

But the testimony of the mercenaries themselves was more blunt – they called the rules “The New World Order” – seriously, that’s a direct quote from the testimony of a gentleman named Nick DeRose (phon.)

But the mercenaries were not satisfied with merely having privatized the program, written the rules for the program, and controlled the LSP Board that will license, oversee, audit, and sanction their work.

This level of control is extraordinary – by analogy – it basically equivalent to writing the speed limit, calibrating the radar gun that measures speed, and employing the cops, the prosecutor, the judge, the jury and the jailor.

But today the mercenaries wanted even more.

Mike Egenton, lobbyist for the Chamber of Commerce, was given preference and the first to speak.

Egenton whined that the cleanup deadlines would be too tough to meet, would cost a lot of money to meet, and asked for more “flexibility”.

But the time-frames DEP proposed are a joke, they don’t even apply to actual site cleanup, but just the various steps in the process.

Egenton focused on the May 2014 deadline – but that comes from the statute, not DEP regulations – for completion of the “remedial investigation”. That is just the first phase in the cleanup process.

So after 30 YEARS of stalled cleanups, the Chamber of Commerce is bitching about having to take the first step by May 2014! That ought to tell you something.

His colleague, Tony Russo of the Chemistry Council, was next up (we’re sure DEP just happened to pick these heavyweights first to speak because they were the first to sign in – NOT).

Russo also complained about the time frames for remedial investigation, but he mounted a broader attack.

At the outset of his testimony, Russo thanked DEP for providing 4 years of access to chemistry industry, so that lobbyists could influence and write the law and DEP regulations.

But Russo was disappointed that there were some things the chemical industry requested that were not provided by the DEP stenographers in the rules.

Specifically, Russo didn’t like enforcement penalties – but Russo was just blowing smoke here, because he knows that actual enforcement is highly unlikely, because the DEP has proposed most of the technical requirements as Guidance which is subject to the LSP’s discretion, not enforceable regulation.

Russo also didn’t like the fact that DEP would not allow his Fortune 500 clients to use corporate self guarantees to back cleanup. DEP financial assurance requirements for cleanup do not allow these non-liquid risky financial instruments, which are about as solid as Wall Street toxic assets and junk bonds.

A lawyer for the mercenaries took strong exception to what might be the most absurd aspect of the rule.

Under the proposal, when a LSP certifies a site as clean (called a “Remedial Action Outcome” – RAO), its over. Fini!

This lawyer opposed DEP’s abdication of their responsibility under the law to review the RAO and make a final determination as to whether a site is fully cleaned up.

But the DEP rule – Pontious Pilate like – washes its hands of the LSP RAO determination.

The lawyer – correctly in my view – complained that not only did DEP abdicate its responsibility to be the final arbiter, but that this would undermine finality and erode confidence in the RAO.

To their credit, Bob Spiegel and Dana Patterson of Edison Wetlands Association, and Jeff Tittel of Sierra Club were the only other member of the environmental community to testify.

We all asked DEP to extend the public comment period by at least 90 days and hold hearings in communities across the state at times and places that make them accessible.

In addition to high risk sites, Dana Patterson of EWA sagely suggested that all sites in NJ DEP designated Environmental Justice Communities be eliminated from eligibility in the LSP program.

This DEP proposed rule is massive, complex, and will have significant impacts on communities across the state.

People and communities across the state at NJ’s more than 20,000 toxic waste sites have no idea how this rule will effect them.

This rule needs to be closely scrutinized and must not be adopted unless and until adequate safeguards are put in pace.

We will be writing more on this topic.

[Update: 9/14/11 – I want to make four more important points:

1) thank goodness for federal law: Superfund and RCRA. EPA Region 2, at the request of NJ Sierra Club, had to pressure DEP to make it clear that federal sites are exempt from the program.

This legal reality reminds me of Lisa Jackson’s US Senate confirmation hearing testimony for EPA Administrator, where Jackson faced harsh questioning from Chairwoman Boxer about her role in NJ DEP and was forced to state that she would NOT support privatization of EPA cleanup programs under RCRA or Superfund.

2) The Langan Engineering spokesperson who testified was so obnoxious he claimed to welcome the “publicity” I have provided for their firm for “volunteering their services” to DEP.

But his hands were trembling so badly I thought he might drop the written testimony – of pass out. And if Langan is so righteous, where was Jorge Berkowitz?

3) And speaking of profiles in courage, its a shame that the careerist chickenshit creators of this steaming pile of shit also were nowhere to be seen – having dumped this on fire bag of shit on the front porch of career DEP professional and new Assistant Commissioner Dave Sweeney.

4) As I wrote: “Forget it, Jake. It’s Chinatown”

Amazingly, not even the fact that 60 toddlers were poisoned in a daycare center located in a toxic former industrial mercury thermometer factory could match the political muscle of the toxic polluters in NJ.