WolfeNotes.com

Another Example of “Regulatory Relief”  Chickens Coming Home To Roost

… the record reflects that much of the focus during legislative hearings in the spring of 1985 was on the need for various incentives, including tax breaks and regulatory relief, to encourage private investment in the diversion and recovery of recyclable materials from the conventional solid waste stream. (State Commission Of Investigation Report, (March, 2017, @ p. 5)

NJ Spotlight finally reported today on last week’s Senate Environment hearing on “Dirty Dirt”.

Today’s Spotlight coverage seeks to shift the focus away from DEP, environmental regulation, and the recent “dirty dirt” disputes in Vernon and Cumberland County, in favor of what they describe as a long dispute about closing loopholes in and applying NJ’s “A901″ integrity review program conducted by the Attorney General’s Office to the recycling industry:

An eight-year struggle to close loopholes to keep bad actors out of the recycling sector is moving closer to winning legislative approval.

The legislation (S-1683), spurred by a 2011 report by the State Commission of Investigation into illegal dumping of toxic-tainted soil and debris, cleared the Senate Environment and Energy Committee last week.

Note that Spotlight cites the SCI 2011 Report, not the more recent SCI 2017 Report. That is no accident, it is part of Spotlight’s diversion.

As I wrote about that Senate hearing, there are significant and longstanding failures in DEP regulatory oversight of “dirty dirt”, a reality that NJ Spotlight and the Senate legislation completely ignore.

Worse, NJ Spotlight is not only ignoring DEP and the failure to enforce environmental regulations, thereby letting DEP off the hook. Spotlight is actively misinforming and misleading readers about the issue.

Specifically, NJ Spotlight falsely reported that DEP has no regulatory authority in overseeing not only transportation, beneficial re-use, and recycling of dirty dirt, but in the actual disposal of dirty dirty.

NJ Spotlight misreported this in the recent controversy in Cumberland County.

In a January 28, 2019 story, NJ Spotlight, uncritically citing the NJ DEP press office, reported:

Hazardous waste is defined by the federal government as that which presents an imminent danger because of qualities such as explosiveness or corrosiveness, said Larry Hajna, a spokesman for the DEP, which is not required to issue permits for the dumping of contaminated soil.

As I wrote to correct this error – DEP does issue permits “for the dumping of contaminated soil”:

[DEP’s] Hajna is just flat out wrong. While the federal EPA does define “hazardous waste” pursuant to Subtitle C of the federal Resource Conservation  and Recovery Act (RCRA) – and “solid waste” pursuant to Subtitle D of RCRA – NJ’s Solid Waste Manage Act State law and NJ DEP regulations define and regulate “hazardous waste” and “solid waste” far more broadly and strictly than federal RCRA. Hajna also is wrong in his “imminent danger” claim as the basis for EPA federal regulation.

Even after the Navy deal was nixed, DEP doubled down on this false position:

“Brendon Shank, communications director for the DEP, on Tuesday said no state permit is required to ship the soil.”

In fact, while no “DEP permit” is required, DEP does regulate dirty dirt haulers and the DEP does regulate the Cumberland County landfill. DEP issued a solid waste facility permit for its operation, including the types of waste it is allowed to accept. DEP has authority to determine compliance with the landfill permit, and to sample incoming loads to assure compliance and prevent illegal disposal of wastes not authorized by the permit. DEP also regulates all waste haulers that transport and dispose of wastes at NJ solid waste facilities and can sample loads to assure that they are hauling solid waste and not illegal hazardous waste. Read the applicable DEP regulations, which include this:

7:26-2.10 General engineering design submission requirements

[…]

vii. A waste inspection plan, which shall include a program for detecting and preventing the disposal of all unauthorized waste types, including regulated hazardous wastes. This program shall include, at a minimum, but not be limited to, the following:

(1) Random inspections of incoming loads unless the owner or operator takes other steps to ensure that incoming loads do not contain unauthorized waste types, including regulated hazardous waste or TSCA waste;

I provided this correct information and links to the Department regulations and SCI 2017 Report to Spotlight reporter Jon Hurdle, who has yet to correct his error.

In addition to failure to correct this error, Spotlight’s failure to report on lax DEP regulatory enforcement is despite the fact that the SCI Report (2017) NJ Spotlight reports on explicitly attributes a major cause of the problem to lax DEP environmental regulation. The SCI found:

Desert Sky On Fire

[update below]

Lilac rain, unbroken chain
Song of the saw-whet owl
Out on the mountain, it’ll drive you insane
Listening to the winds howl. ~~~ Unbroken Chain (Grateful Dead)

[Update:  2/19/19 – Just read this quote in a 2/18/19 NY Times article – as his “greatest fantasy”:

“to deliver oneself up, to hand oneself over, entrust oneself completely to the silence of a wide landscape of woods and hills, or sea, or desert; to sit still while the sun comes up over that land and fills its silences with light.” ~~~ Thomas Merton

Amen, Bro!

The photo above is a sunset – so here’s desert sunrise:

end update.]

If allowed to stand, these radical reinterpretations and narrowing of DEP’s regulatory authority would seriously undermine and effectively gut DEP’s powers to protect public health and environment – including addressing climate change.

Yesterday, the Senate heard proposed legislation to address illegal disposal of “dirty dirt” (see S1683).

No reports on that from media.

But, NJ Spotlight did report that Murphy administration DEP Commissioner McCabe issued a press statement criticizing the Trump EPA for inaction in adopting regulations – known as “MCL’s” – for the class of toxic chemicals known as “PFAS” (hit the links for the details I will discuss in a future post on MCL’s).

The McCabe DEP press release was issued the same day that McCabe was personally slammed in a Newark Star Ledger editorial and harshly criticized again in testimony later that morning in a Senate legislative hearing on illegal disposal of “dirty dirt” (see S1683). That DEP press release was a blatant diversion to cover up McCabe’s own serious failures.

The Star Ledger editorial blasted McCabe personally on her response to illegal disposal of dirty dirt:

After months of effort, Gottheimer got DEP commissioner Catherine McCabe to visit the site in December, but he found that they spent most of that time haggling over the legal definitions of “solid waste” and “de minimus.”

Construction waste is in the eye of the beholder, but the DEP believes its definition is inviolable. The agency monitors the site, yet it claims it has no probable cause to physically inspect the property or collect testing samples.

Besides, violations of soil controls are enforced on a county and municipal level, DEP points out.

McCabe can haggle with this, from NJ DEP recycling regulations:

and this:

We have been working on exposing the abuses and DEP regulatory failures on “dirty dirt” for over a decade – including while I worked at DEP on developing enforcement policy in the late 1980’s – see this post, where I outline DEP regulations and Guidance documents governing this set of issues:

• “Dirty Dirt” is Dangerous – and Ignored

As I said in a February 8, 2012 Bergen Record story on soil contamination that closed Votee Park in Teaneck:

“This stuff happens again and again and again, and nobody is connecting the underlying dots,” Wolfe said. “Are there laws in place to do this, and who is responsible for enforcing them? The answer is there are laws in place, but the government is completely asleep at the wheel. And the towns are left holding the bag.”

In 2006 testimony to a special legislative investigation on illegal disposal, we called for the Legislature and/or DEP to:

• Impose cradle-to-grave management requirements for contaminated soils and demolition waste

So, we must call out McCabe’s outrageous and totally unacceptable dissembling, diversions, falsehoods, and failures.

Because McCabe is a lawyer, her position regarding DEP’s jurisdiction and responsibility is so egregiously false and particularly troubling, so much so that she should be called to publicly testify before the Legislature to defend it.

DEP has broad authority and responsibility – repeatedly upheld by NJ Courts – under the NJ Spill Act, NJ Solid Waste Management Act, and NJ Water Pollution Control Act, to regulate both solid waste and recycling, from cradle to grave. DEP has lead authority. This is NOT a local issue. (See NJAC 7:26)

That authority includes DEP regulatory oversight of: the facilities and sites that generate the solid waste or recyclable material; the sampling, analytical chemistry, and regulatory classification of the material; the trucks that haul the material; and the places where the material is processed, treated, stored, recycled, or disposed of.

To address those DEP lies, I wrote the below letter to Chairman Smith:

Dear Chairman Smith:

I was deeply disturbed by the testimony during yesterday’s hearing on “dirty dirt”, particularly regarding statements about DEP’s jurisdiction, authority, and responsibility.

I have been involved in this set of issues for over 30 years, beginning with work as a DEP professional on developing a “waste flow” enforcement policy back in the late 1980’s and NJ’s recycling regulatory framework in the early 1990’s. I also met with Senator Greenstein during the 2006 illegal disposal scandals in her district, so have direct knowledge and experience to offer.

There is a pattern of radical reinterpretation and narrowing of DEP statutory powers and responsibility, including the recent episode at the Cumberland County landfill’s proposed disposal contract with the US Navy. When that story broke, DEP made this misleading statement:

“Hazardous waste is defined by the federal government as that which presents an imminent danger because of qualities such as explosiveness or corrosiveness, said Larry Hajna, a spokesman for the DEP, which is not required to issue permits for the dumping of contaminated soil.“

Hajna is just flat out wrong. While the federal EPA does define “hazardous waste” pursuant to Subtitle C of the Resource Conservation  and Recovery Act (RCRA) – and “solid waste” pursuant to Subtitle D of RCRA – NJ’s Solid Waste Manage Act State law and NJ DEP regulations define and regulate “hazardous waste” and “solid waste” far more broadly and strictly than federal RCRA. Hajna also is wrong in his “imminent danger” claim as the basis for EPA federal regulation.

Even after the Navy deal was nixed, DEP doubled down on this false position:

“Brendon Shank, communications director for the DEP, on Tuesday said no state permit is required to ship the soil.”

In fact, the DEP regulates the Cumberland County landfill and issues a permit for its operation, including the types of waste it is allowed to accept. DEP has authority to determine compliance with the landfill permit, and to sample incoming loads to assure compliance and prevent illegal disposal of wastes not authorized by the permit. DEP also regulates all waste haulers that transport and dispose of wastes at NJ solid waste facilities and can sample loads to assure that they are hauling solid waste and not illegal hazardous waste. Read the applicable DEP regulations, which include this:

7:26-2.10 General engineering design submission requirements

[…]

vii. A waste inspection plan, which shall include a program for detecting and preventing the disposal of all unauthorized waste types, including regulated hazardous wastes. This program shall include, at a minimum, but not be limited to, the following:

(1) Random inspections of incoming loads unless the owner or operator takes other steps to ensure that incoming loads do not contain unauthorized waste types, including regulated hazardous waste or TSCA waste;

The same false reinterpretation and radical narrowing of DEP’s authority also is occurring regarding DEP’s regulatory jurisdiction over emissions of greenhouse gases. As NJ Spotlight recently falsely reported:

“But the bigger issue for the state may be to regulate carbon dioxide, the most pervasive greenhouse gas pollutant. Sen. Bob Smith (D-Middlesex), the powerful chairman of the Senate Environment and Energy Committee, has urged the state agency to do just that, which would be a broad expansion of its authority.”

Contrary to that claim, there “would be no broad expansion of DEP’s authority”.  Greenhouse gases – not just CO2 – are already subject to DEP regulatory authority. See this 2005 DEP rule adoption document for support:

https://www.nj.gov/dep/rules/adoptions/2005_1121njac7_27.pdf

Getting back to the dirty dirt issue, I was stunned by the DEP claims regarding site access, sampling and DEP jurisdiction and denial of lead responsibility in the Vernon case.

FYI, contrary to testimony, here is DEP’s statutory authority, as set forth in DEP’s own Guidance document: (emphases mine)

https://www.nj.gov/dep/srp/guidance/fspm/pdf/fsmp2005.pdf

In addition, as you know, NJ laws even delegate this broad authority to private individuals – so obviously DEP’s State police powers are far broader (see DEP website):

…The Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-16 , requires the person conducting the remediation to gain access to real or personal property that is not owned by that person for the purpose of conducting remediation: 58:10B-16. Access to property to conduct remediation

I could expand on additional false interpretations that were presented in testimony and media reports.

If allowed to stand, these radical reinterpretations would seriously undermine and effectively gut DEP’s powers to protect public health and environment – including addressing climate change..

I strongly urge you to contact the Attorney General and DEP Commissioner McCabe and request that they issue written opinions of these matters – as well as OLS attorney’s.

Bill Wolfe

State bill follows ALEC model and Trump Infrastructure Plan

More Privatization and Pay-To-Play Politics

Decarbonization of the economy and conversion to a 100% renewable energy infrastructure will cost many billion dollars. We simply can not afford to tack on 15 – 20% more in corporate profits, graft, and crony capitalism that the bill would produce.

(Update: 2/14/19 – in an unusual and embarrassing move, the Committe held the bill, with no explanation or public testimony. Hopefully its dead. Minor victory. ~~~ End update.)

Tomorrow, the Senate Environment Committee will consider proposed legislation (S2958) which would “Establish the “Energy Infrastructure Public-Private Partnership Act.”

In plain language, this means more privatization of energy infrastructure (billions of dollars of investment and profits are involved to finance the transition to efficiency and renewable energy).

NJ Spotlight ran the set up story yesterday, which inadvertently exposed the vultures circling the carcass of our decrepit 19th century energy infrastructure, gleefully anticipating another round of pay to play, patronage, profits, and pillage (P3):

The legislation would allow private entities to be responsible for designing, building, financing, operating, and maintaining the energy projects. The bill provides a lot of flexibility on financing, letting private entities take advantage of tax abatements, long-term bonding, and other funding mechanisms.

“It has the potential to fund billions of dollars of projects that otherwise would not be done,’’ Goldenberg said. In some cases, the projects could include renewable energy — like solar or wind or geothermal — as well as more conventional power systems, like combined heat and power.

We recently suggested that Spotlight had turned a blind eye to the privatization issue, perhaps due to conflicts of interest with Spotlight contributors. But we were wrong – no more blind eye: they now fully embrace and promote it.

The bill is co-sponsored by Senators Sarlo (D) and Oroho (R-ALEC).

As we’ve noted, Senator Oroho is the NJ Chair representative on the American Legislative Exchange Council (ALEC).

ALEC was exposed as a Koch brothers funded right wing ideological think tank and propaganda mill that drafts radical model legislation that is then stealthed into State legislatures to further a corporate agenda of privatization, deregulation, tax cuts, dismantling of government and austerity, among other radical right wing projects.

Not surprisingly, the NJ bill closely follows the ALEC model bill, Establishing a Public-Private Partnership (P3) Authority Act

This Act establishes a state Partnership Committee and an Office of Public-Private Partnerships to identify and establish public-private partnerships and approve qualified bidders, requests for proposals, and template contracts. The Act is designed to improve public operational efficiency and environmental performance, promote public safety, attract private investment in the state, and minimize governmental liabilities.

Ironically, the ALEC model is actually more sensitive than the NJ bill to public participation, open government, accountability, and transparency and seeks more objective technical performance standards for public-private partnership agreements and contracts.

The NJ bill expands a pattern by NJ Democrats of privatization of critical infrastructure, with an important difference. (ALEC has model legislation on all that as well – interested readers can start with wastewater).

Prior NJ Democratic legislative initiatives to promote privatization of toxic site cleanups, drinking water, wastewater treatment, and, most recently, stormwater management, have been stealth efforts that mask the real policy objectives and ideological assumptions.

With this effort to expand privatization of energy infrastructure, the ideological mask is off. No more stealth. Democrats now brazenly reveal their corporate ideological agenda.

The NJ bill explicitly is based on Neoliberal austerity assumptions (recall the Grover Norquist quote about making government small enough to “drown in the bathtub”). The bill finds that:

The need to upgrade the State’s energy infrastructure comes at a time of fiscal austerity and budgetary constraints. Governmental entities have witnessed dramatic reductions in available revenues as a consequence of the recent recession and major storm events, among other reasons, which have adversely affected the ability of State, county, and municipal governments to make needed investments in energy infrastructure.

Austerity and government budget cuts – as well as tax cuts and corporate subsidies that drain government budgets – are a matter of ideology and conscious policy. They are not, as the bill claims, a “consequence of the recent recession and major storm events,”

Based on this Orwellian finding, the bill openly promotes privatization:

b. The Legislature therefore determines that:

     (1)  It shall be the public policy of this State to foster energy-related public-private partnerships that will enable governmental entities to partner with private entities to develop needed state-of-the-art energy projects and obviate or minimize the need for capital investments in energy projects by governmental entities, taxpayers, and energy public utility ratepayers;

     (2)  In order to foster the energy projects contemplated by P.L.    , c.    (C.      ) (pending before the Legislature as this bill), it is necessary and appropriate for the Legislature to authorize the use of public-private partnerships to leverage private sector financial resources and expertise and permit governmental and private entities to share the responsibilities and benefits of these projects;

Shamefully, the bill promotes this ideological agenda hiding under the skirts of so called “weather events”  – no mention of climate change – like Superstorm Sandy and slogans about “vulnerability” and “resilience”:

2)  The increasing magnitude and frequency of weather events, such as Winter Storm Quinn, Hurricane Irene, and Superstorm Sandy, and the devastation they inflicted on the State, has revealed the vulnerability, inadequacies, and obsolescence of the State’s energy infrastructure, which has failed, sometimes for prolonged periods of time, to provide adequate, reliable, and resilient service to the State;

Weather events? Not climate change? ALEC is a climate denier too.

Yet the bill would do nothing to mandate reduction in fossil energy consumption and greenhouse gas emissions that are driving the underlying vulnerability and damaging energy infrastructure.

The NJ bill also shares core premises and programs of the failed Trump Infrastructure Plan – a plan denounced by national Democrats and many others, who railed against privatization, corruption, conflicts of interest, and “crony capitalism”. The Hill reported:

Democrats on the Joint Economic Committee have unveiled a new report that bills the administration’s proposal as a “bait and switch,” slamming the public-private partnerships the White House is slated to expand in the plan.

“We can all agree that our infrastructure needs a major investment and upgrade, but indications of the president’s plan simply won’t cut it,” Sen. Martin Heinrich (D-N.M.), the ranking member of the committee, said in a statement. ….

But the proposed expansion of public-private partnerships quickly ran into opposition from critics, who say the incentive program won’t provide an adequate revenue source for a comprehensive overhaul of U.S. infrastructure.

“While there may be room to increase the usage of [public-private partnerships] in the United States, it is unrealistic to expect a large enough increase in projects to account for the level of investment that the economy needs or the administration is promising,” Democrats on the Joint Economic Committee said in their report.

Critics of the administration’s expected principles emphasize the federal government’s crucial role in funding infrastructure, while Trump himself has questioned whether the use of public-private partnerships for infrastructure would work.

Private firms would look to invest in projects that can recuperate costs through potential revenue sources like user fees or tolls, but critics are also concerned about both profitability and possible conflicting interests between the public and private sectors...

The administration is also running into allegations of corrupt conflict-of-interests in its drafting of a plan to rebuild the nation’s infrastructure. Democracy Forward, a nonprofit group, released a report Tuesday accusing the Trump administration of creating a proposal borne out of “crony capitalism.”

“President Trump’s infrastructure strategy would leave American communities behind, as private special interests like his friends and business associates get rich,” the report says.

The NJ Democratic bill also closely follows a failed national Republican US Senate Bill – known as the Energy Savings Through Public-Private Partnerships Act of 2017

Yet we hear about none of that from cheerleading NJ Spotlight.

The NJ bill comes at a time when national progressives are driving the policy agenda, with calls for a Green New Deal, Medicare For All, and expansions of government and the public realm are receiving huge media coverage and public support.

A time when Neoliberalism and austerity have been intellectually discredited and shown as failures

The NJ bill comes at a time when discussion of Socialism and criticism of capitalism are no longer taboo in American politics.

So, why are NJ corporate Democrats going in the opposite direction?

Are there any progressive voices in the NJ Democratic Party that can stand up and call this out?

Decarbonization of the economy and conversion to a 100% renewable energy infrastructure will cost many billion dollars. We simply can not afford to tack on 15 – 20% more in corporate profits, graft, and crony capitalism that the bill would produce.

Will the “green” groups raise these concerns, or are they wholly owned subsidiaries of the corporate Democrats?

We’ll listen in tomorrow and let you know.

NJ’s US Senator Booker declared victory 

Now that he’s running for President, will he be held accountable for failure?

Bill Wolfe, director of the New Jersey office of Public Employees for Environmental Responsibility, said not having Lautenberg in the Senate is a “huge loss.” He would “step on toes to get things done,” whereas Wolfe said Booker is “the antitheses of that.” He called the former mayor a “calibrated corporate Democrat who worries about alienating Wall Street and corporate America.” ~~~ E&E News (10/31/13)

[Update below]

Scientists at the NJ Department of Environmental Protection are criticizing the US EPA for failure to consider the toxicity of alternatives to the controversial group of toxic chemicals know as PFAS.

NJ Spotlight reported:

• DEP SAYS EPA DIDN’T CONSIDER MANY HEALTH RISKS WHEN APPROVING PFAS REPLACEMENTS

New Jersey scientists are accusing the federal government of failing to consider many health risks posed by a group of chemicals that are designed to substitute for some of the controversial PFAS substances which are now being strictly regulated by the state. Regulation of PFAS has been deemed necessary because of growing evidence that they are a danger to public health.

[Update: For context,  according to US EPA:

That DEP criticism directly contradicts claims by NJ US Senator Cory Booker, who declared victory on this set of issues:

• Sen. Booker Celebrates Final Senate Passage of Agreement to Reform Chemical Safety Laws

“Congressional approval of this bipartisan chemical safety law is a major victory for our state and for the legacy of Sen. Frank Lautenberg who championed this fight.  I am proud of the long-overdue improvements I fought to include in this bill, including provisions that strengthen EPA’s ability to regulate toxic chemicals, provide EPA with dedicated funding, give more scrutiny to new chemicals before they come on the market, allow states to continue to co-enforce with EPA, and minimize animal testing when scientifically reliable alternatives exist.

As we recently wrote (scroll down to second point)

II)  GO ASK BOOKER

Second, while exposing the failure to screen the toxicity of substitute chemicals, NJ Spotlight failed to note the key reason for that failure:

New Jersey’s nation-leading efforts to protect the public from a class of toxic chemicals in drinking water are being threatened by the emergence of substitutes that may be just as hazardous to human health, experts argue.

That failure is due to a federal law known as the Toxic Substances Control Act (TSCA).

The Toxic Substances Control Act (TSCA) is a law, passed by Congress in 1976 and administered by the United States Environmental Protection Agency, that regulates the introduction of new or already existing chemicals.

TSCA was just overhauled in 2016 by legislation negotiated by NJ Senator Cory Booker–

Here’s Booker’s self congratulatory press release:

“Congressional approval of this bipartisan chemical safety law is a major victory for our state and for the legacy of Sen. Frank Lautenberg who championed this fight.  I am proud of the long-overdue improvements I fought to include in this bill, including provisions that strengthen EPA’s ability to regulate toxic chemicals,provide EPA with dedicated funding, give more scrutiny to new chemicals before they come on the market, allow states to continue to co-enforce with EPA, and minimize animal testing when scientifically reliable alternatives exist. Despite long odds and difficult challenges, common sense and finding common ground won the day. I want to thank all of my colleagues on both sides of the aisle that came together to make this bill possible. I look forward to celebrating when President Obama signs this important chemical safety reform legislation into law, helping to keep American families and children safe from toxic chemicals.”

In May, Sen. Booker spoke on the Senate floor urging swift passage of the bipartisan, bicameral agreement on the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which makes badly needed reforms to the Toxic Substances Control Act of 1976.  His remarks can be viewed here.

To read the act, see:  

• Frank R. Lautenberg Chemical Safety for the 21st Century Act

Someone needs to go ask Booker about all that.

Is EPA stronger and subject to stricter legal standards? Is so, how could they do what DEP claims?

Is NJ DEP authorized to enforce those stricter standards? If so, why are they blasting EPA?

Are children safe from toxic chemicals, as Booker claimed?

And we predicted this Booker sell out:

Bill Wolfe, director of the New Jersey office of Public Employees for Environmental Responsibility, said not having Lautenberg in the Senate is a “huge loss.” He would “step on toes to get things done,” whereas Wolfe said Booker is “the antitheses of that.” He called the former mayor a “calibrated corporate Democrat who worries about alienating Wall Street and corporate America.”