WolfeNotes.com

What explains all these contradictions? 

How do you feel about a manipulative and fake media campaign to ignore real climate risks, to undermine real activists, to benefit elite interests & to give Gov. Murphy a pass?

NJ Spotlight published an Op-Ed today on the Penn East pipeline, ostensibly written by Brandon McCoy, President of NJ Policy Perspective:

• PENNEAST PIPELINE DOESN’T GO WITH A CLEAN-ENERGY FUTURE

Aside from Mr. McCoy’s lack of expertise, experience or prior involvement in climate or energy policy   –  while NJ Spotlight fails to publish Op-Ed’s by many groups and authors who have these qualifications or other fossil infrastructure projects – in reading Mr. McCoy’s Op-Ed, ask yourself one basic question:

Why is NJ Policy Perspective, a State level group, led by a President who touts his his personal leadership

“of the organization’s efforts in shaping policy debates to advance economic justice for the many, not a chosen few”

 and with a statewide organizational mission

“to advance economic justice and prosperity for all New Jerseyans through evidence-based, independent research, analysis and advocacy” (emphases added)

writing an Op-Ed about the Penn East pipeline, a project and narrow single issue (not any POLICY) that most directly impacts the backyards of and is opposed by the “CHOSEN FEW” of Hunterdon County? (do I need to publish the demographics of Hunterdon County? – or the Board , membership and financial contributors of the NJ Conservation Foundation?)

Why wouldn’t such an advocate of “policy” and “economic justice“, leading an organization seeking to “advance economic justice and prosperity for all New Jerseyans”, actually mention any of that in an Op-Ed?

Why wouldn’t that President of that Organization, tackling climate and energy issues being addressed at the State level by BPU and DEP, instead focus on real statewide policy issues that impact the 99% of New Jerseyans, other than the “chosen few” wealthy property owners in Hunterdon County impacted by the Penn East pipeline?

There is nothing in Mr. McCoy’s Op-Ed of statewide significance.

There is nothing about climate change or energy policy.

There is nothing about the disproportionate impacts of climate chaos on distressed urban communities or economic and environmental justice for those communities.

There is nothing about Gov. Murphy’s rhetorical commitments to battle climate change and promote environmental justice and the need to hold the Governor accountable to those commitments.

There is nothing about the pending Murphy BPU Energy Master Plan, the driver of Statewide energy policy and whether it will enforce and finance the dire warnings of climate scientists and make deep and accelerated reductions of greenhouse gas emissions.

There is nothing about DEP’s failed efforts to implement the Global Warming Response Act or flaws in the GWRA or RGGI.

And why would opposition to a specific pipeline not criticize the fact that DEP regulations do NOT consider climate change in fossil infrastructure permitting? (Or that the Christie DEP rolled back these protections?)

There is nothing about all the other pending fossil infrastructure projects and the Coalition of numerous state and local groups that are urging Gov. Murphy to impose a moratorium on new fossil infrastructure.

Virtually nothing that meets the stated mission of NJ Policy Perspective and the leadership commitments of its President, Mr. McCoy.

On top of all those failures, while Mr. McCoy does mention New York State – yet amazingly, he fails to mention the most obvious and significant fact that NY Gov. Cuomo previously has killed pipelines, most recently the proposed pipeline under Raritan Bay currently pending an imminent DEP permit decision!!!

Instead, we get the same recycled arguments and talking points of Tom Gilbert and Rethink Energy NJ.

What explains all these contradictions?

Could it be that Jon Shure – longtime  partisan NJ Democratic political operative and corporate democratic policy wonk with relationships with Gov. Murphy –  the Founder and current member of the Board of Trustees of NJ Policy Perspective, and currently employed by Taft Communications, had something to do with writing and marketing this Op-Ed?

[Jon Shure]He was communications director through Gov. Jim Florio’s term in office. Jon was founding president of New Jersey Policy Perspective, building it into an influential state research/advocacy organization, and was director of state communications at the Center on Budget and Policy Priorities in Washington, D.C.

Back in February, we exposed the role of Taft Communications in an incredibly timed prior NJ Spotlight Op-Ed by Tom Gilbert, which we called out as an effort to sabotage the fossil moratorium campaign, see:

• Rethink Energy NJ Is Sabotaging The Fossil Moratorium Campaign

Rethink NJ pays for a consulting firm for communication services, including drafting Op-Eds and working behind the scenes to get them published (it is not easy to get an Op-Ed published, and as noted above, Tom Gilbert meets NONE of the traditional qualifying tests for an Op-Ed opportunity).

That consulting firm is Taft Communications.

If you hit the link on “Client List”, you can see Rethink Energy NJ listed as a client.

But if you also look slightly above Rethink, you will see that PSEG is also a Taft client.

Mr. McCoy – and Mr. Shure – are engaged in the same game that Mr. Gilbert played back in February.

They won’t put any pressure on or make any demands of their political friend, Gov. Murphy.

The won’t join is solidarity with other NJ Communities and activists battling fossil infrastructure projects.

They work hard to marginalize the radicals, co-opt the local activist, and take credit for their work.

They are willing to sellout out their grandmothers and lie to the public (by commission or omission).

All they care about is the wealthy elite who fund them and their own careers and salaries.

I call bullshit on all that and shame on them.

Bill would provide liability relief based on private consultant’s certification

Significant flaws and need to strengthen NJ laws are ignored

On Thursday, the Senate Environment Committee will consider S3682, a bill that would amend and further weaken NJ’s toxic site cleanup laws, despite numerous examples where cleanup laws need to be strengthened to protect public health & restore natural resources; expand public involvement in private cleanup decisions; accelerate complete cleanups, not “pave and wave”; and stop illegal dumping and abuses of “dirty dirt” loopholes and lack of DEP enforcement.

The bill would make numerous changes in current law that would expand the powers of and economically benefit private Licensed Site Remediation Professionals (LSRP’s), including granting LSRP’s a virtual monopoly on cleanup consulting work, delegating regulatory and enforcement powers to the private LSRP Board, and providing liability relief for corporations who rely on a LSRP certified remedial action workplan. Previously, provision of liability relief was limited to and under exclusive DEP’s control. The bill would privatize this core government function.

I’d name the bill the “NJ Boeing Self Certification and Privatization of Regulatory Oversight Act”.

I wrote the following letter to sponsor Chairman Smith – I urge interested readers to weigh in with Smith and your legislator:

Dear Chairman Smith –

I write to request amendments to your bill, S3682, which would make several changes to NJ’s site remediation laws.

First of all, there are several gaps and flaws in current cleanup laws and DEP implementation that the bill fails to address. If the Legislature is re-opening the cleanup laws for amendment via S3682, I request the following issues be included in amendments:

1) what ever happened to proposed legislation to increase Spill Act liability, that would raise or eliminate the current $50 million cap?

2) what ever happened NRD standards Taskforce?

3) what ever happened to the Environmental Advisory Task Force (created by the Legislature) and DEP’s regulatory initiative to promulgate ecological cleanup standards?

4) several recent episodes, similar to the abuses and controversies in Mercer County that led to passage of P.L. 2006, c. 65, strongly indicate the need to expand public involvement the cleanup program, including in the selection of remedy that current law delegates to the responsible party.

5) Recent public controversies strongly suggest the need to restore remedy selection authority to DEP.

6) Recent controversies in Vernon and proposed legislation to respond to the SCI report on “dirty dirt” enforcement is clearly in need of amendments to enhance DEP regulatory oversight and enforcement. Those amendments could be incorporated in this bill.

7) Current law and DEP regulations address vapor intrusion in a reactive fashion on a case by case basis. Implementation experience strongly suggests the need to develop a Statewide program.

8) The Christie DEP rolled back important regulations, including soil/groundwater and vapor intrusion standards. This issues warrant legislative oversight and strengthening amendments.

9) The DEP recently issued a Spill Act Directive and AG Grewal filed litigation regarding toxic chemicals PFOA and PFAS to the same responsible parties.

The AG’s lawsuit raised many issues, including fraud and withholding and failure to disclose materially significant data and science on the public health and environmental risks.

These claims raise gray areas in current NJ law that warrant legislative consideration. But the bill fails to address any of them.

Similarly, I urge you to consider the Dupont/Chemours and Dow responses to DEP’s Spill Act Directive. The Dupont reply was written by NJ firm McCarter & English. Those responses provide a roadmap to significant gaps in NJ law.

Finally, I urge you to delete or revise the following flaws with the bill:

1)  Section 4 (p. 15-16) liability relief –

It is unsound public policy to provide liability relief, based on an LSRP certified remedial action workplan. This invites abuse and would legally equate LSRP decisions with DEP regulatory powers.

2. Section 9 – The proposed sustainable and green practice provisions lack standards and technical requirements. There are no mandatory DEP rule-making requirements, thus these provisions are voluntary and aspirational and not enforceable.

3. Section 13 – public information requests – This section would expand current law, but it puts control of information in the hands of LSRP or the polluter. This could be interpreted to undermine DEP’s obligations under OPRA. It should be amended to clarify that DEP is required to provide information for public records requested by the public pursuant to OPRA.

4. The bill would narrow the definition of “Immediate environmental concern” by deleting the current term “condition” and replacing that with “confirmed contamination”. Given the potential public health risks involved in the IEC framework, “confirmation” is too high a bar. This would undermine a precautionary public health approach. For example, in the Kiddie Kollege disaster, it took 14 weeks for DEP to “confirm” contamination, during which period toddlers were exposed to poisonous mercury vapors. I urge you to delete this proposed revision.

5. Section 21 – would delegate regulatory authority to the LSRP Board, a private entity.

This raises a host of signifiant legal and policy concerns, including constitutional issues about delegating regulatory authority to private entities.It also could be interpreted or applied in a way that undermines DEP’s exclusive enforcement authority. I urge you to delete this proposed revision.

6. Section 22 – This section should be amended to address situations where LSRP’s and/or responsible party withhold material data or science or information. See AG Grewal’s lawsuit on PFOA/PFAS for illustrations.

The standard for LSRP certification is proposed to be based on “belief” – This should be strengthened to require the LSRP base certification on “verified” data and/or “confirmed” information

7. The bill would revise IEC notification standards and obligations to require that the LSRP must “obtain specific knowledge”. Again, similar to the proposed change to the definition of IEC, this is not precautionary and undermines a public health approach.

8. Section 23 –  This section is based on”specific knowledge” of IEC – again, this is a too restrictive standard.

9. section 25 – Defines the LSRP’s obligation to submit records, as limited to those “prepared or relied upon” –

There could be cases where data or documents were rejected, withheld and/or not “relied upon”. This standard needs to be expanded to require full disclosure of all data, documents and information.

9. Section 26 – Would reduce and undermine DEP direct oversight. This would undermine accountability to statutory and regulatory cleanup deadlines and inject further unacceptable delays in cleanup. These provisions should be deleted.

Additionally, this section would undermine deadlines and DEP direct oversight at federal sites. For an example of why this is ill advised, consider the fact that Dupont Pompton Lakes is a federal RCRA corrective action site. There are approximately 100 similar EPA federal RCRA Corrective Action sites in NJ that would be impacted adversely by this provision.

10. The bill would also weaken direct DEP oversight by allowing consideration of vague standards, such as financial hardship, and provide unbounded discretion to DEP to waive direct oversight requirements “in the public interest”. These provisions should be deleted.

I appreciate your favorable consideration. Please enter these comments in the record on the bill.

Respectfully,

Bill Wolfe

Murphy BPU Dodges & Defers Huge Corporate Ripoff

NJ Spotlight puff piece parrots Murphy spin

Note how BPU masks a huge debate in a slogan of efforts to “ensure investment”.

What that really means is that BPU must guarantee high enough monopoly profits to attract greedy PSEG & Wall Street investment.

I just started looking into NJ’s energy efficiency program, after recently learning that the Clean Energy Act (the law that funded the notorious billion dollar nuke bailout and put a 7% cap on rate increases to support renewables) also mandated that BPU impose a special new “surcharge” to guarantee “full recovery” of “revenue impact of sales losses resulting from implementation of the energy efficiency”, see:

“Each electric public utility and gas public utility shall file annually with the board a petition to recover on a full and current basis through a surcharge all reasonable and prudent costs incurred as a result of energy efficiency programs and peak demand reduction programs required pursuant to this section, including but not limited to recovery of and on capital investment, and the revenue impact of sales losses resulting from implementation of the energy efficiency and peak demand reduction schedules, which shall be determined by the board pursuant to section 13 of P.L.2007, c.340 (C.48:3-98.1).

Get that?

Private corporations are guaranteed to recover all reductions in revenues and profits from energy efficiency, and you pay for it.

This is truly remarkable. What you should save in monthly utility bills for reducing your energy consumption is wiped out completely – on a 1 to 1 basis – by a special surcharge on your bill to guarantee PSEG profits.

So, despite the fact that you use less energy, your monthly utility bill remains the same, and you must pay more for the investments you made in energy efficiency, like new windows, insulation, a super efficient furnace, AC, heat pump, LED’s, and/or refrigerator, etc.

On top of that, PSEG and friends are seeking to profit on their expenditures for energy efficiency programs, which you also will pay for in this new special “surcharge” mandated by the Clean Energy Act.

I call that an outrageous corporate scam.

But the BPU and NJ Spotlight ignored all that controversy, as reported in today’s NJ Spotlight puff piece.

Actually, it’s worse.

NJ Spotlight swallowed the Murphy Administration’s Orwellian spin and described a continuing $87 million diversion of Clean Energy Fund revenues as a “phase out”, and a roll over of unexpended funds from last year’s budget as “extra funding”.

So, let me be clear: A flat energy efficiency program budget and a diversion of $87 million in Clean Energy Funds directly contradict Gov. Murphy’s commitments to a transition to 100% clean energy and to battle climate change.

The NJ Spotlight puff piece is based on BPU’s energy efficiency budget plan.

I reviewed that plan to try to understand how BPU engaged the controversial issues that will arise as the public learns about this special “surcharge” to guarantee private corporate monopoly profits.

BPU not only ignored these issues, they actually masked them in their program budget report.

Specifically, BPU’s Report does not even specifically mention the Clean Energy Act’s mandate that they impose a new “surcharge”.

The Report buries and masks this issue in the following bureaucratic jargon and euphemism:

The CEA requires the Board to adopt an electric and gas energy efficiency program in order to ensure investment in cost- effective energy efficiency measures, ensure universal access to energy efficiency measures, and serve the needs of low-income communities. (@ page 6)

Note how BPU masks a huge debate in a slogan of efforts to “ensure investment”.

What that really means is that BPU must guarantee high enough monopoly profits to attract greedy PSEG & Wall Street investment.

The Report not only fails to engage and masks this controversial issue, it delays consideration of it until next year (under another bureaucratic euphemism: “cost recovery“):

In FY20, additional discussions will take place related to utility-specific energy usage and peak demand reduction targets, the program structure, cost recovery, utility filing requirements, program timeframes, evaluation, and reporting requirements . (@p. 7)

So again, let me be clear: Failure of the Murphy BPU to engage this fundamental issue of allocation of the financial burdens of financing critical investments in energy efficiency in it’s program budget planning documents is NOT leadership, and it belies Gov. Murphy’s commitments on clean energy and climate change.

The Murphy BPU policy reflects a long history of privatization and deference to corporate greed.

Check out this history of the BPU energy efficiency program, which reflects an emphasis on privatization and corporate profits, described in BPU’s own budget plan:

From 2001 to 2006, the [energy efficiency] programs were managed by the state’s electric and natural gas utilities. In 2004, the Board determined it would manage NJCEP going forward and in 2005- 2006, the Board issued RFPs to contract the necessary administrative services to assist in oversight. In 2006, Honeywell, Inc. was engaged to manage the RE and residential EE programs, and TRC was engaged to manage the C&I EE programs. In 2007, AEG was engaged as the NJCEP Program Coordinator. These contracts, following multiple extensions, terminated on March 31, 2016.

In April 2015, the Board, through the Department of the Treasury, Division of Purchase and Property (Treasury), issued RFP 16-X-23938 seeking proposals for a single Program Administrator to provide the services then being provided by Honeywell, TRC, and AEG (2015 RFP). On December 1, 2015, Treasury awarded the Program Administrator contract to AEG. Subsequently, on January 13, 2017, TRC Environmental Corporation acquired,AEG’s New Jersey operation including the NJCEP Program Administrator contract from AEG and assumed AEG’s rights and obligations thereunder. TRC has subcontracted portions of the work under its contract to CLEAResult Consulting, Inc. and Energy Futures Group, Inc. AEG and, subsequently, TRC have managed programs since March 1, 2016, which marked the conclusion of the transition period set out in the RFP. (@ page 5)

It’s all one big corporate profit scam. No wonder the program has such poor performance.

Finally, let me illustrate this issue with a simple hypothetical (ballpark hypothetical numbers, so don’t quote me on these. The Christie BPU Energy Master Plan provides real data, if you’re interested in using real data).

An average NJ home pays about $150/month for electricity ($1,800/year). For ease of calculations, let’s round that up to $2,000 per year.

[Note: For statewide context, lets assume there are 4 million households in NJ (Census estimates 3.6 million), that amounts to $8 billion in revenue for just the electric power of the residential sector. Considering the commercial and industrial sector (which consumes about twice as much energy as residential) and gas in addition to electric, and we’re talking huge revenues and profits for energy services. The US Energy Information Agency estimated $18 billion in total energy expenditures in 2016 (but this is broader than utility electric and gas).

If even 10% of this revenue is reduced due to energy efficiency (and the BPU Report suggests closer to 25% is technically feasible and cost effective), then ratepayers, who must guarantee this lost revenue under the NJ Clean Energy Act, will be ripped off to the tune of billions of dollars a year in corporate welfare.]

The recent BPU consultant’s report on energy efficiency suggests that it is technologically feasible and cost effective to reduce energy use through efficiency by about 22%. For ease of calculation, lets round that up to 25%. Let’s also assume “cost effective” means a 10 year payback period (no interest and discount rates used here, I’m trying to keep it simple).

So, let’s say you reduce your energy consumption by 25%. That should translate into a 25% reduction in your $2,000/year energy bill, or $500/year.

But to achieve this 25% energy reduction, you had to spend $5,000 on efficiency (insulation, new windows, new furnace, new refrigerator, LED’s, and/or heat pump/AC). You financed that $5,000 investment with a 10 year home equity loan, paying the monthly payments with your anticipated 25% reductions in your monthly energy bill.

But after you do the numbers and finance these energy efficiency investments, you get whacked by a new special “surcharge” to guarantee the revenues PSEG lost as a result of your reduced energy consumption!

So, your monthly electric bill DOES NOT GO DOWN, IT STAYS THE SAME, WHILE YOU HAVE TO MAKE NEW MONTHLY PAYMENTS TO FINANCE THE ENERGY EFFICIENCY INVESTMENTS (and this assumes that BPU does not increase the “surcharge” to provide profits on PSEG’s own new energy efficiency investments, which would make your monthly bill even MORE).

Who would ever do this?

Given this financial reality,  I can only interpret the “full recovery” guarantee in the Clean Energy Act as a cynical poison pill to block any real reduction in energy use via energy efficiency.

snow capped mountains – sagebrush plateau

We write today from the Taos plateau, in Rio Grande del Norte National Monument.

The National Monument was designated in 2013 by President Obama (read the Presidential Proclamation, which so wonderfully describes this harsh and beautiful landscape, but please don’t tell Trump!)

Like Trump’s pursuit of a border wall, his shrinking of monuments is not merely about enforcing the boundaries of a physical landscape. It’s also about controlling the narrative of that landscape — about determining who is included and who is excluded. By reducing and eliminating monuments, he is erasing artifacts and people from our national story. In this case, nonwhite people.

In his memo to the White House, Zinke recommended shrinking the boundaries of four national monuments: Gold Butte in Nevada, Cascade-Siskiyou in Oregon, and Bears Ears and Grand Staircase-Escalante in Utah. Reducing the protected acreage, Zinke argued, would restore “traditional uses,” such as grazing, mining, hunting and timber production.

We reluctantly left lovely Taos early this morning. I’ve been in the mountains on outskirts of Taos for the last 4 days. Camped at about 10,000 feet elevation and I’m still not used to it. I can’t seem to marshal the energy and stamina and wind for a real hike and all the trails seem like they go straight up, so I’ve been basically been limited to wandering the base of the ski slopes and narrow valleys.

The weather pattern is gorgeous but crisp and cold in morning, gradually warming, and then afternoon winds and clouds and thunderstorms. We got a new air mass this morning – the air is not crystal clear like it was. I hope it’s natural pollen, and not smoke from Alberta wildfires.

A few miles out of town, we crossed the Rio Grande gorge:

As the Sagebrush scrub vegetation heated up this afternoon, it gave off this incredibly pleasant and distinct smell, kind of like buttered popcorn. I’ve noticed it before. Very nice. But the wind is constant and the sun is hot, making for harsh conditions (clouds formed over and shaded the mountain range, but the plateau is sun drenched).

Think we’ll hang here for a few days – I’ve got plenty of food, water and good reading (picked up a copy of Library of America’s volume on Jack London in a Taos bookstore) – and then head into Colorado.

It’s a shame I sold my canon L lenses and camera – the small mirrorless camera I have does not do justice to these landscapes!

Senate Urged To Close Legal Loopholes And Grant DEP Powers To Protect Public Health

AG Grewal’s alleged legal “hammer” is actually a pillow

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.

Unfortunately, while touting their efforts, the Murphy administration (and the media coverage) have failed to distinguish between two fundamentally different legal “hammers” that the AG and DEP have “dropped”, i.e: 1) traditional Natural Resource Damage (NRD) lawsuits versus 2) a novel DEP Spill Act Directive.

I previously have written to explain why DEP’s NRD program is flawed and why DEP has a weak legal hand in NRD lawsuits (see: Bombshell: DEP Bungling Led To Exxon Deal). As a result – unless these flaws are corrected via adoption of new DEP regulations – it is likely that DEP will be forced to continue to settle NRD claims for pennies on the dollar or else NJ Courts will continue to reject DEP NRD claims. (Of course, the Legislature could enact enforceable NRD standards, but there is no evidence of any appetite to do so, as a legislative Taskforce created for exactly that purpose has not issued any recommendations and no bills have been introduced).

So in this post today, I want to focus on the novel DEP Spill Act Directive.

AG Grewal issued a self congratulatory, complex and lengthy press release on March 27, 2019 that contributed to the media’s confusion and misleading conflation of the NRD lawsuits and the DEP Spill Act Directive.

The AG press release stated (emphases mine):

In addition to announcing today’s lawsuits, Attorney General Grewal and Commissioner McCabe noted at today’s press conference that, earlier this week, DEP issued a statewide directive on PFAS against DuPont, Chemours, 3M, Solvay and Dow Chemical — the main users, manufacturers, suppliers, and dischargers of PFAS in New Jersey.

Issued on Monday, the Directive orders these companies to pay for continued testing and treatment of PFAS-contaminated waters at and near the affected sites. It also orders them to pay for the additional treatment of private and public water supply wells, as well as the cleanup and removal of the contamination. Starting in the early 1950s, DuPont acquired a PFAS compound (perfluorooctanoate) from 3M and used it to manufacture its Teflon products. The State alleges that DuPont discharged massive quantities of PFAS-containing waste into water and on-site landfills at the Chambers Works site, and also released PFAS into the air.

The corporate pushback on the DEP’s Directive didn’t take long. On April 17, 2019, Dupont’s lawyers pushed back, and hard.

According to a May 10, 2019 Bloomberg News story:

Chemours Co., 3M Co. and DuPont are taking a stand against what one company called an “unprecedented” New Jersey order, saying they won’t pay for a statewide investigation of fluorinated chemical contamination.

The companies asserted they aren’t responsible for contamination under the state’s Spill Compensation and Control Act, which prohibits hazardous substances and pollutants from being discharged and imposes liability on those who do so.

New Jersey’s Department of Environmental Protection in March ordered DuPont Specialty Products USA LLC, DowDuPont Inc., E.I. du Pont de Nemours & Co., Chemours Co., Solvay Specialty Polymers USA LLC and 3M to tell the state where and when they manufactured, dumped, supplied, or used poly- or perfluoroalkyl substances, known as PFAS.

And it didn’t take long for DEP Commissioner McCabe to fold the tent and cave in to the corporate pushback.

McCabe wasn’t “dropping any hammers”, she was “hoping for a voluntary resolution” and wanted to “work with” the corporate polluters!

Closely following the Bloomberg disclosure of the corporate pushback, 4 days later on May 14, NJ Spotlight reported on the DEP cave:

NEW JERSEY DEP SAYS IT’S WORKING WITH CHEMICAL COMPANIES TO CURB PFAS

[…]

“In response to the directive, we have met with several of the companies and received certain documentation and are hopeful we can continue working with the subject companies to reach a voluntary resolution to address statewide PFAS investigation and remediation without the need for further costly, protracted legal action,” the department said.

Unfortunately, I must note that the corporate lawyers for Dupont, Chemours, Dow and 3M absolutely destroyed the DEP’s Spill Act Directive. 

The Dupont legal attack was written by NJ law firm McCarter & English. I will not repeat it here, but strongly urge readers to consider their analysis

It clearly exposes the fact that DEP lacked authority under the NJ Spill Act to issue the Directive and made fundamental scientific and legal errors. Actually, it’s an embarrassment. In my 35 year career, I’ve never seen more incompetent DEP work.

And now, to further complicate the legal and policy issues and illustrate the comic failure of AG Grewal and DEP Commissioner McCabe to work together and get on the same page, the same day the NJ Spotlight story ran (May 14), where McCabe backed down and said she wanted to work with the polluters on a voluntary basis, AG Grewal issued a press release announcing a major new lawsuit against these same polluters for PFOA/PFAS!

I suspect that AG Grewal issued the lawsuit in part because he realized that the DEP Spill Act Directive was not enforceable. That AG ligation raises even more complex and novel legal issues – blending consumer fraud with environmental laws – that we will address in a future post.

Regardless of whether we look at the DEP Spill Act Directive or the AG’s lawsuit, clearly, the legislature will need to respond and enact legislation to address these glaring gaps and loopholes in NJ’s environmental laws exposed by the DEP Directive and Dupont pushback.

Given that the Senate Environment Committee will meet next week on Thursday June 6 to consider, among other things, comprehensive amendments to NJ’s toxic site cleanup laws (see, S3682  – more privatization and weakening of current weak protections, a specific post on the bill forthcoming) I wrote to urge Chairman Bob Smith to amend his bill to address the legal loopholes and flaws exposed by the McCarter & English legal criticism of DEP’s Spill Act Directive.

Because the DEP Directive also addressed issues of fraud, failure to disclose, and knowing withholding material and critically important data on the environmental toxicity and public health risks of chemicals, I’ve also urged Smith to either amend his bill (S3682) or introduce new legislation to make such actions environmental crimes.

Because this post is getting lengthy, I will post that letter to Smith in a subsequent post.