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The Pallone bill is an excuse and the cover for a Biden EPA to do nothing

NJ Spotlight has written another story on the family of chemicals known as PFAS, or “forever” chemicals, see:

• Clock ticking on ‘forever chemicals’? Biden win spurs revival of plans for federal regulation

Once again, the narrative misleads and diverts readers and activists about a host of issues. We’ll try to correct the record.

First, let’s start with the headline: it does mention “regulation”, but the story is about legislation, i.e. the Pallone bill.

EPA does not need new federal law to define PFAS as a “hazardous substance” and regulate it under Superfund. EPA has that authority under current law.

EPA does not need new federal law to require cleanup of PFAS contamination and make polluters pay for cleanups and natural resource damages under Superfund. They have that authority under current law.

EPA does not need new federal law to establish national drinking water standards for PFAS. They have that authority under the current federal Safe Drinking Water Act.

EPA does not need new federal law to establish water quality standards and pollution discharge permit (NPDES) limits for PFAS. EPA has the authority under the current Clean Water Act.

The reasons Democrats, like Frank Pallone, are pushing new legislation right now is:

1) to take the heat off the Biden administration and lower expectations and divert environmental activists and media away from focusing on and making regulatory demands of the Biden EPA.

Now that Democrats control EPA, Pallone should be focused on regulatory solutions available under current law, not new laws that have zero chance of passage; and

2) to make House Democrat’s look good and blame Senate Republicans for inaction.

During the last Congressional session, it was easy to sponsor legislation because Pallone and Democrats knew that the Senate would block it and/or Trump would veto it (and keep in mind that last session, Frank Pallone took the lead on opposing and derailing the Green New Deal).

Now that Democrats control EPA – and especially while Republicans hold veto power in the Senate on any new legislation – they should focus on EPA regulation.

The fact that Pallone and other Democrats are ginning up a national legislative strategy (in a press event coordinated with national environmental groups) is proof positive that they are playing political games and are not serious about protecting public health.

The Pallone bill is a diversion and an excuse and the cover for a Biden EPA to do nothing.

Second, The Pallone bill is another example of flawed, piecemeal, narrow, single chemical, and single issue/objective regulation.

There are perhaps 100,000 toxic chemicals being manufactured, used, and discharged to the environment that are either not regulated at all or are under regulated.

The last thing we need is more politically driven flawed legislative initiatives like Frank Pallone’s bill. Even within drinking water protections, it makes no sense to address chemicals one by one, with risk assessment and cost benefit analysis based standards. As we’ve written many times, a “precautionary principle” and “treatment based approach” would be far more protective and effective.

Third, NJ Spotlight fails to even mention the underlying federal law that EPA has authority to enforce and is failing to implement, despite its serious flaws.

That underlying flawed federal law is what allows corporations to keep information about the use and safety of toxic chemicals “secret”.

That law prohibits federal EPA regulators from disclosing “secret” information publicly, including information about the manufacture, use, discharge, and safety of toxic chemicals, and the development and manufacture of alternative new chemicals.

That law pre-empts more stringent and protective State law and muzzles State DEP regulators.

That law fails to enforce the “precautionary principle” and instead imposes a heavy scientific burden on EPA regulators. 

That law erects numerous legal and procedural burdens to effective regulation of chemical safety.

That federal law is known as the Toxic Substances Control Act (TSCA)

The Toxic Substances Control Act of 1976 provides EPA with authority to require reporting, record-keeping and testing requirements, and restrictions relating to chemical substances and/or mixtures. …

Various sections of TSCA provide authority to:

• Require, under Section 5, pre-manufacture notification for “new chemical substances” before manufacture
• Require, under Section 4, testing of chemicals by manufacturers, importers, and processors where risks or exposures of concern are found
• Issue Significant New Use Rules (SNURs), under Section 5, when it identifies a “significant new use” that could result in exposures to, or releases of, a substance of concern.
• Maintain the TSCA Inventory, under Section 8, which contains more than 83,000 chemicals. As new chemicals are commercially manufactured or imported, they are placed on the list.
• Require those importing or exporting chemicals, under Sections 12(b) and 13, to comply with certification reporting and/or other requirements.
• Require, under Section 8, reporting and record-keeping by persons who manufacture, import, process, and/or distribute chemical substances in commerce.
• Require, under Section 8(e), that any person who manufactures (including imports), processes, or distributes in commerce a chemical substance or mixture and who obtains information which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment to immediately inform EPA, except where EPA has been adequately informed of such information.  EPA screens all TSCA b§8(e) submissions as well as voluntary “For Your Information” (FYI) submissions.

Given that TSCA is the source of all these problems, has far broader application than the Pallone bill, and who could provide significant solutions – including lack of strict EPA regulation and enforcement, a problem that can be partially remedied by an aggressive Biden EPA – why is it never even mentioned by environmental groups and media coverage?

TSCA is an egregious example of law and regulation being used to protect corporate interests, not to protect the public and public health and the environment.

I’ve made NJ Spotlight reporter Jon Hurdle aware of these issues numerous times – here’s my latest attempt today:

Jon – the underlying federal statute whose flaws are exposed by Paulsboro PFAS and the use of more toxic “secret” alternatives in the Toxic Substances Control Act (TSCA).

If it were fully enforced across the board, it would be far broader and more effective than a single drinking water standard for PFOA.

Why is NO ONE reporting about TSCA regulation and what it is supposed to do? Why are ENGO’s not even mentioning it? NJ Senator Booker was lead sponsor of “reforms” that have proven ineffective.

Here’s EPA press release:

“WASHINGTON (June 22, 2020) — Today, as part of the U.S. Environmental Protection Agency’s (EPA) Per- and Polyfluoroalkyl Substances (PFAS) Action Plan, EPA is issuing a final rule giving the agency the authority to review an expansive list of products containing PFAS before they could be manufactured, sold, or imported in the United States. This action, issued under the Toxic Substances Control Act (TSCA), means that EPA is prohibiting companies from manufacturing, processing, or importing products containing certain long-chain PFAS, which persist in the environment and can cause adverse health effects, without prior EPA review and approval. As part of the agency’s review, EPA could place restrictions on these products to protect public health.”

https://www.epa.gov/newsreleases/epa-takes-action-stop-use-certain-pfas-products-and-protect-american-consumers

Wolfe

Despite all this, I have never seen any NJ press corps ever report substantively on TSCA (other than to praise prime sponsors former Senator Frank Lautenberg and current Senator Cory Booker).

Booker has bragged about his role in “reforming” TSCA and celebrated the passage of that weak law, so one would think he would be accountable for TSCA’s blatant failures.

What explains that news blackout?

[Personal Endnote:

While at Cornell graduate school (1983-1985), I wrote a paper on TSCA for Professor Ted Lowi’s government class. (Ted died in 2018)

As somewhat of an aspiring expert in the interface of administrative law, environmental law, and science, I was able to write in depth about the various nuanced scientific and legal burdens and administrative and rulemaking procedures under TSCA, how they had been interpreted by the US Supreme Court, and explain how they handcuffed EPA and represented a strong pro-industry bias.

Professor Lowi provided both the highlight and the humiliating lowlight of my short lived academic career.

On an exam paper, he blasted me for “spewing drivel and parroting lectures”. Of course I was crushed by that!

But on the TSCA paper, he wrote that it was very good, good enough to be published!

Had I any ambition and run with that, things would have worked out very differently. ~~~ end note]

DEP Deputy Commissioner Pledges That DEP Regulations Will Not Deter Corporate Investment

Echoes of Biden’s Pledge To Wall Street: “Nothing Will Fundamentally Change“

Look, I’m wasted in the Sonoran desert and absolutely terrified by the night sky, so I must be brief.

For tonight, a very quick note – which I will followup on soon with details when I can work off the transcript – regarding the NJ Spotlight Roundtable on the so called “landmark” environmental justice legislation recently signed into law by NJ Governor Murphy.

I’ll admit that I’ve never watched a NJ Spotlight panel discussion before, and was especially skeptical of this one, given how much I’ve written about the flaws in the EJ law, the panelists, and the last minute participation of NJ Gov. Murphy and NJ’s US Senator Booker.

No doubt, the NJ Democrats are trying to make this an important NJ state and even a national issue – and Gov. Murphy is using it as a second term electoral issue –  which has relevance in light of the Biden transition.

Let’s just say that I was deeply disappointed by the discussion.

The climax of the discussion came when NJ Business and Industry (NJBIA) VP Ray Cantor – formerly the Christie DEP Deputy Commissioner – claimed that the legislation would create uncertainty that would discourage private corporate investment in NJ.

Challenging that assertion – not on its merits, but from the Wall Street corporate right – was Murphy DEP Deputy Commissioner Shawn LaTourette, who bragged about his own prior private sector experience in the investment community and pledged that DEP’s regulations would in no way impede Wall Street or corporate investment.

Get that? A DEP Deputy Commissioner was more supportive of corporate investment than the business community’s lobbyist.

Given that extraordinary, unprecedented, and and absolutely jaw dropping DEP claim, I wrote the following to NJ Spotlights’ editor John Mooney:

John – 2 quick comments/requests on the EJ panel roundtable:

1) your sponsor (engineers union) spent over 1 minute of their 5 minutes on spewing factual falsehoods. Specifically, the EJ law explicitly exempts site remediation (and therefore brownfields and their cleanups).

DEP LaTourette and one EJ panelist vaguely alluded to this falsehood as “misinformation”, but did not explicitly correct it.

Because they were a sponsor, it is incumbent on NJ Spotlight to either publicly correct the record, or request that the engineers’  union correct it.

2) I urge you to post a link to the entire unedited video and to post a transcript as well.

DEP made some extraordinary statements about regulation and private sector investment that demand accountability. What DEP’s LaTourette said – especially about his prior career with private investment community – was unprecedented and highly revealing, particularly coming from a Wall Street Governor’s policy spokesperson.

The same holds for Ray Cantor’s grossly misleading statements about 250,000 manufacturing jobs lost since 1990 – clearly a false insinuation that environmental regulation caused those job losses.

Obviously, I don’t need to tell you that – as Senator Booker’s participation signaled – this is an emerging national issue with transition to a Biden administration underway.

Spotlight owes full disclosure not only to its NJ readers, but to a national audience.

Wolfe

Huge Flaws Render Scientifically Credible And Protective DEP Regulations Impossible

NJ Spotlight is holding a virtual roundtable on Friday afternoon, on what they call NJ’s “Landmark Environmental Justice Law”, to register, see:

• New Jersey’s landmark Environmental Justice Law: How Will It Work?

NJ’s US Senator Cory Booker is scheduled to make opening remarks, so I decided to register and see what he has to say.

I suspect that Booker’s political interests in EJ are similar to his interests and role in talking the lead sponsorship of “reforms” to the federal Toxic Substances Control Act enacted in 2016.

That role would be to co-opt and marginalize the activists, derail and weaken aggressive regulatory requirements, and put a fake veneer of progressive and black EJ cover on what will amount to protections for corporate polluters (something Booker has done before with his colleague NJ Senator Sweeney).

Upon registering for the event, I noted an opportunity to submit questions for the panelists, so I submitted the following: (which I guarantee will not be engaged, so I urge readers to submit similar questions):

The NJ EJ law does not apply to greenhouse gas emissions & climate adaptation

It also does not apply to “extraordinarily hazardous substances” (i.e. to facilities subject to NJ’s Toxic Catastrophe Prevention Act and federal Clean Air Act Sect. 112 Risk Management Planning requirements).

It also exempted contaminated sites & air pollution sources that emit less than 100 tons/per year (including industrial emissions of hazardous air pollutant (HAP)s, many of which are carcinogens and create unacceptable risks in far lesser quantities).

NJ DEP’s own prior “cumulative risk” research in Paterson NJ (funded by US EPA) found, among other things, that small air pollution sources, particularly HAP sources close to sensitive receptors (scientific jargon for vulnerable kids in daycares and schools), create unacceptable health risks and pollution “hot spots” (see:

• DEP Suppressing Study That Shows Breathing Air in Paterson is Hazardous to Your Health

In light of these flaws, how can DEP conduct scientifically credible cumulative impact, climate justice, and EJ reviews?

Maybe NJ US Senator Booker, who is making opening remarks, can answer them.

After all, Booker did such a great job in sponsoring “reforms” of the federal Toxic Substances Control Act, reforms that are working so well in Paulsboro, NJ, see:

• Once Again, DEP Gets A Pass, We Get Poisoned, And Polluters Continue To Evade Regulation And Dodge Huge Liability

I left out a whole bunch of other stuff.

For those interested in going into the weeds, see:

• An Open Letter To NJ’s Black, Poor, and Environmental Justice Communities – You Were Just Sold Out

Supreme Irony?

Extraordinary Hypocrisy?

Or Farce?

Christian fascists understand the deep sickness that infects American society. They know how to exploit the moral and physical decay, as well as the despair it causes, to lure its followers towards their brand of tyranny. They are not wrong when they lambast the cruelty, corruption, emptiness and hypocrisy of the ruling elites, especially the liberal elites. They are not wrong when they mock cultural relativism, the idea that good and evil, right and wrong, truth and untruth, do not exist. It is part of the sad irony that the Christian Right effectively exploits this cultural relativism to seize power. The failure of the liberal Christian Church to denounce the Christian Right as heretics, in the name of tolerance and cultural relativism, has given the Christian fascists religious legitimacy. ~~~ Chris Hedges

[Update below]

As the Cold War was emerging, in 1952, theologian Reinhold Niebuhr wrote an influential book: “The Irony of American History”.

Among many other things, that book provided an historical and ethical framework for understanding the operation of power, particularly salient were definitions and distinctions between tragedy, irony, and farce.

It speaks to us today, as some argue that we are on the verge of a coup after 4 years of unprecedented abuses of power by President Trump.

If that happens, would that be ironic or farcical? Niebuhr wrote:

The ironic nature of our conflict with communism sometimes centers in the relation of power to justice and virtue. The communists use power without scruple because they are under the illusion that their conception of an unambiguously ideal end justifies such use …. Sometimes it verges on that curious combination of cynicism and idealism which characterizes communism, and is prepared to use any means without scruple to achieve its desired end.

No doubt, Trump has and is “prepared to use any means without scruple to achieve its desired end.”

But is Trump alone in that corruption? No.

So, perhaps an even larger irony stems from the fact that the feared and now widely reported strategy Trump is set to deploy – i.e. pressuring Republican State legislatures in swing states to over-ride the electoral results and select a slate of Trump electors to the electoral college – was originated by the Democrats and liberal Harvard Professor Larry Lessig in response to the 2016 election! (as we wrote):

Harvard Law Professor Lawrence Lessig makes the case that electors are not legally bound to honor their state vote, that the ethical obligations are complex, and that they should instead vote their conscience.

Contrary to Naomi Klein’s claim, David Sirota was not the first to report this scheme (even we wrote about it on Election Day). Sirota was only the first to report on the prescient law review article.

I’ve not seen it reported anywhere that, in December 2016, Democrats held protests in State Capitols across the country. The slogan and demand was thus: “Electoral College Do Your Job, Don’t Elect a Demagogue!”

We repost this December 19, 2016 report on the Trenton protest:

“Electoral College Do Your Job – Don’t Elect A Demagogue!”

Federal and State Laws Protect Polluters More Than People And Allow Secrecy

Environmentalist And Media Miss The Chemical Forest For The Solvay Tree

photo: Bill Wolfe

NJ Spotlight wrote another story today on the toxic chemicals PFAS, this one is based on a new Natural Resource Damage (NRD) lawsuit filed by AG Grewal on behalf of DEP against Solvey Specialty Polymers chemical corporation, see:

• State lawsuit targets South Jersey chemical company and its predecessor

No mention of the fact that Solvay is one of NJ’s “Fatal Fifteen”. The significance of that is suggested in point #3 below. Briefly, NJ’s suite of chemical safety State laws, the “Toxic Catastrophe Prevention Act” (TCPA), Pollution Prevention, Right To Know, and Spill Acts, have huge loopholes and the federal law under The Toxic Substances Control Act (TSCA) is far worse, and it pre-empts the flawed but still stronger NJ State laws.

[Update: 11/13 – while we’re on the topic of PFAS, consider this:

Biden’s environmental team is infested with industry hacks, like Michael McCabe, a former EPA official and aide Biden, who led DuPont’s defense of the toxic PFAS chemical PFOA, and is now  once again advising Biden on the EPA… ~~~ end update]

Once again, the coverage ignores the legal and regulatory framework that allows individual cases of abuse to occur and relies heavily on DEP and AG press releases.

Those major journalistic flaws mislead readers on important issues and let polluters, regulators, and legislators off the hook.

At least 3 critical points are either completely ignored or spun.

First of all, one reason that AG Grewal filed a lawsuit is because a prior DEP Spill Act Directive – which was highly praised by prior media coverage –  is not enforceable.

We explained why that DEP Directive was not enforceable in this May 31, 2020 post:

• DEP Lacks Authority To Enforce Directive Against Toxic PFOA Polluters

According to numerous favorable media reports and praise by environmental groups, Murphy DEP Commissioner McCabe and Attorney General Grewal are, in AG Grewal’s words, “dropping the hammer” on corporate polluters. For the typical narrative and spin, see:

• NJ attorney general ramps up efforts to hold polluters accountable

One of the more widely reported alleged “hammers dropped” was a March 25, 2019 DEP Spill Act Directive against major corporate toxic polluters Dupont, Dow, and 3M.

The reality is exactly the opposite.

What AG Grewal describes as legal “hammers” are actually pillows.

Today’s Spotlight story misleadingly mentions that history in passing and fails to explain the significance:

The action follows a “Directive” issued by DEP in March last year against Solvay and four other chemical companies, demanding that they clean up widespread PFAS pollution. The DEP said in the new suit that Solvay has not met all the requirements of the Directive.

Like we said: the DEP Directive was unenforceable. Both AG Grewal and DEP Commissioner McCabe misled the public about that.

Second, NJ Spotlight once again provides a platform for AG Grewal and DEP Commissioner McCabe to spin, mislead readers, and exaggerate the strength of the NRD program:

The suit is the latest in a series of Natural Resource Damage actions in which the Murphy administration has been seeking compensation from polluters for damages to the natural environment. The agencies also announced a Natural Resource Damage suit against Honeywell International for environmental damage at the Quanta Resources Superfund Site along the Hudson River in Edgewater, Bergen County.

“The days of free passes and soft landings for polluters in New Jersey are over,” said Attorney General Gurbir Grewal. “The corporations we’re suing knew full well the potential harms they were inflicting on our environment but chose to forge ahead anyway. When companies disregard the laws meant to protect our environment, they can expect to pay.”

Thats way over the top. (and I get a kick out of the “soft landing” rhetorical echo of my prior “pillow” analogy!)

Polluters continue to get “soft landings”. They continue to pay pennies on the dollar of the cost of actual damages to natural resources.

This NJ Law Journal article explains why, see:(read the whole thing)

• Some Say NJ Had Little Choice But To Settle With Exxon

The [Exxon] settlement, for a century of pollution at Exxon’s Bayway and Bayonne refinery sites, has been attacked as a deal that would pay less than three cents on the dollar for natural resource damage the state’s experts valued at $8.9 billion, in the context of a case where liability was already decided and a ruling on a dollar figure, after months of trial, was imminent.

But some lawyers and environmental advocates said the state’s failure to adopt a methodology for calculating damages for harm to natural resources through the formal rule-making process—as it committed to do more than a decade ago when it settled another suit—may have weakened its negotiating position and led to a lower settlement in not just the Exxon case but in other natural resource damage suits it has brought. ...

Bill Wolfe, the director of nonprofit environmental advocacy group New Jersey Public Employees for Environmental Responsibility, said the issue is one he’s been raising since the SEED case.

Wolfe is not a lawyer but spent 13 years as a policy analyst and planner for the DEP, and was policy director for the Sierra Club’s New Jersey chapter for seven years.

Wolfe said the lack of valuation rules leaves the state vulnerable to challenges on the amount of damages. The state “knows it has a weak legal hand,” making it reluctant to push too hard and more willing to settle, Wolfe said, adding that Exxon’s lawyers are “sharp enough to know this” too. “There’s this wink and a nod going on where the DEP is saying, ‘We won’t squeeze you too hard if you just come to the table and settle,’” Wolfe said, adding that it’s been “a quiet little dance for 10 years,” with the state knowing it can’t get more than pennies on the dollar.

DEP still has not adopted regulations to enforce the NRD program. That failure continues to undermine the State’s legal hand and allow polluters to settle for pennies on the dollar.

Surely, that is a “soft landing”.

Senate Environment Committee Chairman Bob Smith understood this DEP failure and formed a Legislative Taskforce charged with developing recommendations for legislation to mandate that DEP adopt regulatory standards, including methods to quantify and monetize natural resource injuries that formed the basis for NRD liability.

That Task Force never made recommendations and there has been no legislation.

Third, the Spotlight story reports – without connection to law or policy – great rhetorical umbrage that was taken by NJ environmentalists, particularly about secrecy and justice: (emphases mine)

“The secrecy that cloaks the truth about what Solvay has been releasing to the environment and exposing people to over the years is shocking,” she said. “That Solvay used the replacement compound without anyone, even DEP until recently, knowing it and without the toxicity known about the chemical and its properties, such as persistence in the environment and in people’s bodies, is nothing short of criminal.”

Delaware Riverkeeper Network and three other environmental groups welcomed the suit, and urged the DEP to halt the use of replacement chemicals until more is known about whether they threaten public health.

“People today may be drinking water that is contaminated but don’t know it,” the groups said in a statement. “The fact that these are the same people who were exposed to PFNA in the past is intolerably unjust.”

That’s bullshit. Federal EPA and NJ DEP knew all about the “replacement” chemicals and their toxicity.

What is “shocking” and “intolerably unjust” is the fact that federal law allows corporate polluters to manufacture, use, and discharge toxic chemicals that poison people and the environment.

This law allows chemical corporations to keep that information “secret”.

That same law prohibits federal and state government regulators from disclosing this information to the public and strictly limits government’s ability to regulate these toxic chemicals to reduce risks and impacts.

Remarkably, that disgraceful law was sponsored and negotiated by NJ’s US Senator Cory Booker, who bragged about the strength of and celebrated the passage of that weak law.

I have written NJ Spotlight reporter Jon Hurdle multiple times to explain that the source of these problems is the federal Toxic Substances Control Act (TSCA).

Here’s my latest effort to prompt more aggressive and accurate coverage:

Jon – a couple of points on your Solvey NRD lawsuit story today:

1. While you did mention the prior DEP Directive, at the time it was issued, NJ Spotlight and other media gave it very positive (and misleading) coverage.

I noted at the time that it was unenforceable, see:

DEP Lacks Authority To Enforce Directive Against Toxic PFOA Polluters

http://www.wolfenotes.com/2019/05/dep-lacks-authority-to-enforce-directive-against-toxic-pfoa-polluters-dupont-3m-dow/

So, once again, DEP is not held accountable for their spin and NJ ENGO’s get away with false praise. This misleads readers.

2. You gave AG Grewal and DEP McCabe a platform to tout the NRD program.

But check out this NJ Law Journal story on DEP’s NRD program. It explains why it is seriously flawed and can only recover pennies on the dollar of actual NR damage:

Some Say NJ Had Little Choice But To Settle With Exxon

https://www.law.com/njlawjournal/almID/1202722481576/Some-Say-NJ-Had-Little-Choice-but-to-Settle-With-Exxon/?/&slreturn=20201012114256

DEP is under a judicial settlement agreement to adopt NRD regulations and has simply failed to comply with it. They should be held in contempt of court, not praised.

Senator Smith formed a legislative task force to address the DEP’s failure to adopt NRD regulations and recommend legislative standards, including regulations to quantify NR economic damage.

That Taskforce has not met or made recommendations as far as I know and there has been no legislation, as Senator Smith previously pledged.

The big polluters like it just like this – they can go on paying pennies on the dollar.

3. The “secret” alternative toxic chemical was not “secret” – it’s use was disclosed to EPA under the Toxic Substances Control Act (TSCA).

Why not do a story on TSCA – especially since it was NJ Senator Frank Lautenberg’s baby and current US Senator Booker assumed his legacy and cut a very bad deal on “reform”.

What’s outrageous and unjust is the US law (TSCA) allows corporations to benefit from secrecy agreements with State and Federal regulators, who are prohibited from disclosing this information to the public, despite their knowledge that chemicals are poisoning people and the environment.

Wolfe