In the dark of night, yesterday the 2010 – 2011 Legislative session finally ended.

It was a very bad day for the environment, public health, truth, and democracy.

Fittingly, one of the final shameful legislative acts was a 27-9 [error: 29-7] Senate vote to confirm Richard Vodhen to the Highlands Council.

Vohden had not only strongly opposed and worked against the Highlands Act (and failed to disclose that on the Judiciary Committee questionnaire), but outright lied to the Judiciary Committee about it.

(see this superb blow by blow piece by  Juliet Fletcher of the Record’s “The Source” blog: Christie’s Highlands nominee once fought against preservation act

But imagine that: only 9 [7] NJ Senators have a problem with confirming a liar.

(and its not the first time. The precendent for getting away with lying to the Judiciary Cmte to get confirmed as a Highlands Council member was set by the Rilee confirmation, see: Another Christie Highlands Act Opponent Released by Judiciary Committee_

We are reminded of Greek philosopher Diogenes, who carried a lamp through the streets of Athens in search of one honest man.

But Vohden – a political small fry – only engaged in little lies.

The Big Lies were played by the Leadership.

The Republicans, led by Governor Christie – with support of Democratic leaders like Sweeney and their corporate puppet masters in the Chamber of Commerce – have shamelessly propagated a Big Lie (and I use “Big Lie” as a term of art in the realm of propaganda).

The Big Lie is that environmental regulations – cynically scapegoated with the slogan “Red Tape” – harm the economy and are a significant cause of the economic recession, unemployment and fiscal crises.

But heck, don’t believe me – read Nobel Prize winning economist Paul Krugman, who recently wrote:

The good news: After spending a year and a half talking about deficits, deficits, deficits when we should have been talking about jobs, job, jobs we’re finally back to discussing the right issue.

The bad news: Republicans, aided and abetted by many conservative policy intellectuals, are fixated on a view about what’s blocking job creation that fits their prejudices and serves the interests of their wealthy backers, but bears no relationship to reality.

Listen to just about any speech by a Republican presidential hopeful, and you’ll hear assertions that the Obama administration is responsible for weak job growth. How so? The answer, repeated again and again, is that businesses are afraid to expand and create jobs because they fear costly regulations and higher taxes. …

The first thing you need to know, then, is that there’s no evidence supporting this claim and a lot of evidence showing that it’s false. …

So Republican assertions about what ails the economy are pure fantasy, at odds with all the evidence. Should we be surprised?

At one level, of course not. Politicians who always cater to wealthy business interests say that economic recovery requires catering to wealthy business interests. Who could have imagined it?

Yet it seems to me that there is something different about the current state of economic discussion. Political parties have often coalesced around dubious economic ideas — remember the Laffer curve? — but I can’t think of a time when a party’s economic doctrine has been so completely divorced from reality. And I’m also struck by the extent to which Republican-leaning economists — who have to know better — have been willing to lend their credibility to the party’s official delusions.

Partly, no doubt, this reflects the party’s broader slide into its own insular intellectual universe. Large segments of the G.O.P. reject climate science and even the theory of evolution, so why expect evidence to matter for the party’s economic views?

So lets look at just one of the Big Lies the Legislature swallowed last night.

Following Governor Christie’s lead, they passed a bill to allow extension of sewer lines into and promote development of 300,000 acres of NJ’s last remaining environmentally sensitive lands: forests, endangered species habitat, sensitive stream corridors, and reservoir watersheds.

The alleged justification of the bill was to promote economic development and jobs. As Tom Johnson wrote:

Business lobbyists disputed the environmentalists’ take on the day. Michael Egenton, senior vice president of the New Jersey State Chamber of Commerce, said the day’s agenda reflected recognition of how bad the state’s economy is.

“I think the legislature has had a reality check,” Egenton said. “They realize that jobs and the economy are the top priority. When they look at a bill, they ask, ‘Does it create jobs, does it stimulate the economy, and can it put people to work?’ ” he said.

As we’ve noted numerous times, the economic recession has nothing to do with environmental regulations and everything to do with lack of regulation of Wall Street speculation and fraud.

The construction industry is depressed due to the bursting of the real estate bubble, which was fueled by reckless Wall Street excess. There are record surpluses of vacant commercial space and foreclosed upon homes. At the same time, there is record low demand for new construction.

So, the legislation to allow expansion of sewers purportedly to serve construction will do absolutely nothing to create jobs or economic development.

Even worse – if that is imaginable – is that even if there were demand for new construction, the bill still would be insane.

NJ has a $28 BILLION water infrastructure deficit.

We can’t maintain the existing sewer infrastructure, so why on earth would we want to spend money on extending new sewer lines?

This kind of legislation could only pass in our totally corrupt, fact free political environment, fueled by lies, special interest money, and divorced from all democratic principles or public opinion.

Dupont Partial Lake Cleanup Plan Uses Flawed Science to Minimize Problem

Florio Lets Liability Cat Out of the Bag

EPA must stand by Regional Administrator Enck’s commitment and their own science and reject the Dupont proposal.

sun sets on mercury laced Pompton Lake (1/5/12)

Dupont has a big mercury problem in Pompton Lakes, NJ (in addition to the cancer cluster and vapor intrusion).

Scientifically and legally, the problem is similar to General Electric’s (GE) problem with dumping toxic and bioaccumulative PCB’s in the Hudson River, where, according to EPA:

From approximately 1947 to 1977, the General Electric Company (GE) discharged as much as 1.3 million pounds of polychlorinated biphenyls (PCBs) from its capacitor manufacturing plants at the Hudson Falls and Fort Edward facilities into the Hudson River.

That GE dumping poisoned 200 miles of the Hudson River, leading EPA to declare that portion of the River a Superfund site and forcing GE to cleanup the river at a cost of over $500 million.

Like GE, for almost 100 years, Dupont used and disposed of mercury compounds at their explosives manufacturing facility.

Like GE, mercury air emissions and mercury dumping on the Dupont site have led to significant off site releases, so that soils and sediments along the the Acid Brook, Pompton Lake, and natural resource and the downriver region are poisoned.

fish consumption warning posted on Pompton Lake

Mercury is highly toxic to humans, fish and wildlife – it bioaccumulates through the food chain. Its effects are magnified by predators up the food chain and persist for many years.

Like in the the Hudson River, because of mercury pollution, it is unsafe to eat freshwater fish in NJ – and consumption warnings are posted on Pompton Lake (but largely ignored).

Dupont wiped out an entire fishery.

And like Hudson River PCB’s, EPA has extensive national scientific and regulatory experience with mercury in the Great lakes region that is relevant to Dupont Pompton Lakes.

Like GE, Dupont wants to minimize the cost of cleanup and resists EPA cleanup mandates.

I don’t know about GE/Hudson, but in Pompton lakes, EPA Regional Administrator Judith Enck has given the community multiple assurances that EPA will hold Dupont accountable and strictly enforce environmental laws. For example, in an October 14, 2010 reply letter, RA Enck assured me that:

You have my commitment that the Environmental Protection Agency will ensure that Dupont will fulfill its RCRA obligations for this facility.

But Dupont has proposed a partial cleanup plan of just a 26 acre portion of the 250 acre Pompton Lake – no downriver sediment removal is being considered at this time. Dozens of areas of toxic soil contamination on the Dupont site still have not been cleaned up (after 30 years).

The plan is not only for only a small part of the Lake, but it is based on flawed science.

The Dupont plan must be approved by EPA under the Resource Conservation and Recovery Act (RCRA), the most important environmental law you probably never even heard of (and the polluters like it that way).

But now the Dupont plan is in EPA’s lap, which in some ways makes Dupont’s mercury problem EPA’s problem too.

Was Dupont’s plan reviewed and approved by EPA’s national scientific experts on mercury and USFWS scientists? Here’s why we need to know answers to those questions:

I)  Florio Lets the Liability Cat Out of the Bag

Jim Florio, sponsor of 1980 Superfund law, speaks at community rally (1/5/12)

The residents of Pompton Lakes want the site designated and cleaned up by EPA under the Superfund program.

Thus far, their primary reasons for wanting Superfund instead of RCRA is that Superfund would bring more federal resources, a higher priority and visibility, and more community involvement in cleanup decisions.

But Jim Florio, Former NJ Governor and original sponsor of the 1980 Superfund law, just let the legal liability cat out of the bag.

The Superfund liability scheme adds another very good reason to use Superfund to compel Dupont to conduct a comprehensive and complete cleanup of the entire site, Pompton Lake, and downriver and compensate the public for huge natural resource and ecological damages they have caused (just like GE in the Hudson).

Florio went out of his way to emphasize that under Superfund, the legal liability scheme is known as “strict, joint, and several”.

Practically, what this legalese essentially means is that:

• Dupont is 100% on the hook for the ENTIRE problem
• EPA does not have to prove negligence  by Dupont
• EPA has enormous power to force Dupont to do a complete cleanup.

This is key because mercury pollution comes from multiple sources: coal power plants, garbage incinerators, and smelters and industrial sources.

Dupont is arguing that they are responsible ONLY for the mercury they allegedly contributed – and only via Acid Brook runoff, NOT THE TOTAL HISTORIC MERCURY AIR EMISSIONS FROM THE DUPONT PLANT AND ALL ON SITE DISPOSAL PRACTICES.

EPA has agreed to this bogus Dupont argument and that is why only a 6 inch deep small 26 acre portion of the 250 acre Lake (the “Acid Brook Delta”) sediments are being dredged.

Dupont could not get away with that under Superfund.

While it is true that EPA has less legal leverage under RCRA that Superfund, EPA still could do the right thing by forcing Dupont to scientifically establish how much mercury came from their facility and how much came from other sources.

But Dupont has not done any of that kind of work and EPA therefore has no scientific basis upon which to approve the plan. (and that’s just EPA’s problem #1)

II)  Dupont’s Science is Flawed and Can Not Be Approved BY EPA

EPA has done an enormous amount of scientific work on mercury.

In contrast with this rigorous EPA body of work, Dupont’s various regulatory documents rely on cursory and flawed science and assessment methods.

These flawed Dupont approaches provide the basis for the Dupont partial Acid Brook Delta cleanup plan and ecological assessment.

Dupont’s science and methods are inconsistent with, do not meet the rigorous standards of, and contradict EPA science. [Update: See

• EPA Lake and Reservoir Bioassessment and Biocriteria Technical Guidance
• EPA Region 8 Ecological Risk Characterization
• ASTM Method E1706 ]

As such, EPA can not approve of them by approving a cleanup plan based on them.

The primary EPA scientific sources for mercury, for our purposes are (there are lots others):

• EPA Report to Congress
• EPA Regulatory Impact Analysis of Mercury Air Toxics Standard
• EPA Great lakes Mercury Initiative

(examples of additional studies of scientific and regulatory relevance are the

• NOAA Report to Congress on Mercury Contamination in the Great Lakes
• various US Fish and Wildlife Service bird studies and fish studies and
• the 1996 Biological Opinion of the USFWS NJ Field Office
• NJ DEP’s 2002 proposed “wildlife criteria” SWQS for mercury
• EPA’s letter of support of the NJ DEP proposed SWQS wildlife criteria

Compared with the EPA Recommendations to Congress on ecologically protective mercury fish tissue levels, fish in Pompton lakes contain 2 – 10 TIMES safe levels.

Depending on trophic level of the fish, the EPA finding is 0.077 ppm – 0.346 ppm.

According to DEP, the fish in Pompton Lake average 0.72 ug/g (ppm).

[Update: A May 6, 2008 DEP email to Dupont specifically addressed this issue:

in order to present a balanced comparison, DuPont shall compare the average concentrations of mercury in largemouth bass from Pompton Lake to the regional average of 0.46 ug/g mercury in largemouth bass and/or the statewide average (0.44 ug/g) in the Remedial Investigation Report.

Judith Enck, EPA region 2 Administrator came to NJ to warns residents about risks of eating contaminated fish from waters nearby toxic sites

Additionally, Dupont’s ecological risk analysis is flawed, as it relies too heavily on alleged no impacts on the benthic (bottom) macroinvertebrate community structure. Community structure is a poor indicator of bioavailability, bioaccumulation, and ecological risk that I haven’t seen used anywhere else. And even if you were looking at macro invertebrates, you would be doing so to consider food chain bioaccumulation, so you would look at tissue concentration of mercury, not community structure.

[Update: I may have misread the Dupont documents on this point – macro-invertibrate community structure is of relevance, and YOY fish are trophic indicator in food web design – see Mercury Cycling in Stream Ecosystems. 3. Trophic Dynamics and Methylmercury Bioaccumulation – Where Dupont draws misleading conclusion is with this assertion:

However, tissue concentrations measured in the delta in 2005 do not indicate an increased accumulation of mercury by chironomids and YOY fish tissue relative to the tissue data collected during the 1998 ecological investigation. – end update]

[Update 2 – Here is what I meant to say, as provided by DEP’s Ecological Evaluation Guidance says about limitations of macro invertebrate sampling:

Some limitations are that they do not identify the contaminant responsible for the observed toxicity, population impacts are not readily translated into contaminant remediation goals, and results are often confounded by variables not related to contaminant toxicity (predation, seasonal differences, physicochemical sediment characteristics, food availability).]

Similarly, Dupont sampled “young of year” (YOY) fish, which minimizes bioaccumulation as young fish haven’t lived long enough to bioaccumulate the mercury in the system.

Here are additional serious flaws in Dupont’s analysis:

1) I didn’t see anything in Dupont’s documents concerning terrestrial mammals

2) There was no data or discussion of the bird sampling – other than a cursory claim of low/no adverse impact on 4 of 5 bird species sampled. What bird species? What tissue (or egg shell) concentrations found? What adverse impacts were considered?

3) There was no discussion of biological mechanisms that convert mercury they propose to leave in the sediments into bioavailable forms.

4) There was no data provided or consideration given to Dupont’s historic use of mercury compounds in manufacture.

5) There was no data or estimate of Dupont’s mercury air emissions and how those emissions deposited locally.

6) There was no dating or chemical analysis of soil or sediment cores that would suggest historic patterns of mercury deposition.

7) The full extent of mercury deposition and off-site release from the Dupont facility has not be adequately characterized.

8) There was no valid characterization of “mercury background”.

[According to the USEPA, background refers to constituents that are not influenced by the discharges from a site, and is usually described as naturally occurring or anthropogenic (USEPA, 2002a). U.S. Environmental Protection Agency (USEPA). 2002a. “Role of Background in the CERCLA Cleanup Program.” Office of Solid Waste and Emergency Response.

[ According to NJ DEP Ecological Evaluation Guidance:

Background area samples should be collected from an area outside the site’s potential influence and not in locations directly influenced by or in proximity to other obvious sources of contamination.

9) There was no data provided to support apportionment of mercury in the environment as Dupont alleges to minimize their cleanup obligations (i.e. Dupont share and other source share).

10) There was no data or estimate sof total mercury loading; mechanisms and estimates of methylation; fate/transport modeling; bioaccumulation mechanisms; and human and wildlife exposure and risk assessments from air emissions, contaminated soil, surface water runoff of mercury disposed on site.

I assume that some of this data and analysis were provided in the original ecological assessment submitted to NJ DEP in accordance with State cleanup regulations (and rubber stamped by DEP’s broken cleanup program).

[Full disclosure Update: in 1995, a former NJ Governor, with DEP’s help, was shown to misrepresent the science on mercury in fish tissue to downplay risks – when I disclosed this scheme, management retaliated and I was forced out of DEP as a whistle-blower. Hit that link for all the documentation.]

Lois Gibbs speaks at community rally (1/5/12)

However, this is an EPA federal RCRA action that must be EPA approved. Accordingly,  all the documents must be made available to the public during the comment period. That has not been done in this case so EPA can not approve the Dupont plan based on documents and analyses that have not been made publicly available.

III)  EPA is Required to Consult with US Fish and Wildlife Service

RCRA regulations require EPA to consult with federal agencies, including the US Fish and Wildlife Service during the RCRA permit process.

We advised EPA Regional Administrator Enck on November 17, 2011 that RCRA regulations include full federal partner review including, but not limited to, U.S. Fish and Wildlife Service, National Oceanic and Atmospheric Administration, and Agency for Toxic Substance and Disease Registry, pursuant to regulation 40 CFR 124.10(c)(iii).

Certainly such consultation is required BEFORE EPA issues a “tentative approval” and proposes a draft RCRA permit for public comment.

Thus far, it appears that EPA has not complied with these consultation requirements prior to issuing the draft permit.

IV)  Dupont is Required to Comply with Clean Water Act Standards

The federal Clean Water Act applies to Dupont’s water pollution discharges.

The CWA also applies to the RCRA permit process, which must meet CWA requirements.

NJ DEP State surface water quality standards (SWQS) have been approved by EPA and are federally enforceable. They trigger enforceable requirements on pollution discharge that may “cause or contribute to” a violation of a SWQS.

NJ DEP SWQS designate Pompton Lake for recreational use (fishing, swimming,etc), aquatic life protections, and water supply.

The SWQS have policies and narrative and numeric standards that the RCRA permit and Dupont clean up must comply with.

The Dupont proposed cleanup plan provides no discussion or demonstration regarding compliance with the legally applicable and binding provisions of the CWA or NJ SWQS.

Accordingly, EPA can not approve the Dupont proposal as a final RCRA permit in the absence of this compliance demonstration.

EPA must stand by their own science. According to the EPA supported NJ DEP wildlife criteria proposal. According to the DEP SWQS proposal (which USFWS and EPA supported)::

“As part of the 1994 approval of the New Jersey SWQS triennial review process, the USEPA, in collaboration with the USFWS, indicated that the human health based criteria for PCBs were not protective of the threatened and endangered species bald eagle, peregrine falcon, and dwarf wedgemussel. As a result, the Service prepared a Biological Opinion document in 1996 (Biological opinion on the effects of the U.S. Environmental Protection Agency’s approval of the state of New Jersey’s surface water quality standards on the bald eagle, peregrine falcon, and dwarf wedgemussel. U.S. Department of the Interior, Fish & Wildlife Service, New Jersey Field Office, Pleasantville, New Jersey. 1996). The lack of wildlife criteria for DDT and its metabolites, mercury, and PCBs was a concern to the USFWS. DDT and its metabolites, mercury, and PCBs are bioaccumulative pollutants that are persistent in the environment, accumulate in biological tissues, and biomagnify in the food chain. Due to these characteristics, the concentration of these contaminants may increase as they are transferred up through various food chain levels. As a result, adverse impacts to non-aquatic, piscivorous (fish-eating) organisms may arise from low surface water concentrations. The peregrine falcon is not a piscivorous species. However, it feeds on other piscivorous bird species. Therefore, biomagnification may be of even greater concern for the peregrine falcon.

The USEPA developed site-specific wildlife criteria for the Great Lakes based on a number of factors, including the toxicity of various pollutants and their tendency to bioaccumulate and biomagnify. In addition, the USEPA gathered and applied information about piscivorous wildlife endemic to the Great Lakes region in its derivation of water quality criteria. That effort resulted in the promulgation of numeric surface water concentrations designed to be protective of all avian and mammalian wildlife using Great Lakes waters. “

EPA must now stand by Regional Administrator Enck’s commitment and their own science and reject the Dupont proposal.

1) Dupont’s proposed cleanup of Acid Brook Delta is only partial – we demand that all mercury and all pollutants be completely and permanently cleaned up so that the Lake is fishable and swimmable as mandated by the federal Clean Water Act and NJ Water Pollution Control Act;

2) The original 1992 EPA issued RCRA permit must be enforced and has numerous loopholes that must be closed – all RCRA “SWMU’s” and off site releases which are sources of toxic soil, sediment, vapor, and groundwater contamination must be cleaned up under more aggressive schedules and obligations than those EPA unilaterally imposed in a “compliance schedule modification” on May 4, 2010 without public notice and comment;

3) Natural resource damages and toxic fish and wildlife impacts of Dupont’s pollution have not been assessed fully and must be assessed and the public fully compensated;

4) EPA must take enforcement action and collect fines such that vapor mitigation systems are immediately installed in all impacted homes.

The plume area may be larger than currently thought, when subsurface infrastructure migration is considered.

Rally before EPA RCRA permit hearing (1/5/12)

On Monday, NJ Spotlight held a policy roundtable on NJ water supply (see my prior post).

Today, considering similar multi-billion dollar water infrastructure deficits and financing issues, but in a very different format, the NJ Clean Water Council (“Council” or “CWC”) held its annual public hearing.

For water wonk insiders, the Council’s first ever joint meeting with the Water Supply Advisory Council (WSAC) was a quiet rebuff to DEP Commissioner Martin’s ill advised and failed recommendations to consolidate the North Jersey District Water Supply Commission and the New Jersey Water Supply Authority and combine the Clean Water and Water Supply Advisory Councils, pursuant to Governor Christie’ Executive Order #15.

The joint meeting with WSAC also served to shed light on DEP’s long delay in updating the Statewide Water Supply Master Plan, which the Chair of the Water Supply Advisory Council said would be “forthcoming shortly”.

Last year, the Council’s hearing focused on infrastructure deficits and asset management. At that hearing, I testified to urge the CWC to 1) oppose Martin’s EO 15 recommendations to consolidate; 2) to recommend regulatory mandates for asset management; and 3) to recognize the public health significance of so called “end of pipe” regulatory mandates, not disparage them (see hearing transcript at page 42, line 15).

So while I was pleased to see issues #2 and 3 of my testimony last year reflected in the Council’s 2010 recommendations to Commissioner Martin, I was disappointed that the topic for this year’s 2011 hearing – which was set by Commissioner Martin – was a repeat of last year’s hearing: Infrastructure Asset Management.

Despite Martin’s direction to the Council to recycle the infrastructure issue, Martin failed to include infrastructure as a priority in his recently issued 2010 DEP vision and priorities document.

Martin has directed his DEP staff to “do less with less“; to focus on his “transformation” and “core mission” priorities; and to identify and eliminate non-core or redundant functions.

While ignoring infrastructure financing, those (warped) priorities do include:

• adherence to “customer service principles”;
• streamlining permitting;
• privatization and outsourcing;
• expanded access for regulated entities in permitting;
• elimination of the landscape project habitat map in DEP regulatory programs

In response to Martin’s directives, DEP staff have told me that DEP Mangers have told them that if an environmental program or regulatory function are not included as a Martin priority, then they will not do that work – regardless of statutory and/or regulatory mandates requiring them to do so.

But enough of Martin’s mismanagement, let’s get back to today’s Clean Water Council hearing.

As mandated by the Legislature, the Council holds an annual public hearing, to provide an opportunity for the public to weigh in on clean water priorities.

Typically, the Council, in consultation with the DEP Commissioner, selects a single topic to focus on, and invites expert panelists to make presentations on it.

The expert presentations and public testimony are considering by the Council, who then issue a set of recommendations to the DEP Commissioner.

In the last five years – ignoring many other pressing water issues – the Council has held 4 hearings on the infrastructure issue (2007, 2008, 2010, 2011).

Yet, DEP has failed to follow through and implement the Council’s recommendations.

For example, last year’s Council recommendations, conveyed in a November 17, 2010 letter to Martin, included the need for DEP to adopt regulations (boldface mine):

Yet DEP has done nothing to implement last year’s Council recommendations.

And today, we heard only rhetoric from Commissioner Martin, who stated that DEP “was developing an Asset Management Strategy”.

DEP should be proposing rules by now!

There were too many interesting things said today to rehash here, so, for those interested in the details, I will post a link to the hearing transcript when it is made available by DEP.

Other than myself and Jeff Tittel of Sierra Club (who delivered a tour de force on NJ’s longstanding serious water problems), the environmental community and the press corps were AWOL.

That is a shame, because this is an annual event to weigh in on clean water issues.

The NJ Environmental Federation, who sits on the Council and ostensibly represents environmental and public health interests, did not even testify and their rep arrived 40 minutes late (missing their friend Commissioner Martin’s remarks).

Dave Pringle, NJEF (R) shares deep thoughts with DEP Commissioner Bob Martin (L).

[Note: a reader who wishes to remain anonymous writes that “NJEF is the NJ affiliate of the national DC based group Clean Water Action (CWA). As the CWA affiliate, this should be their big issue/ big event – instead they are an embarrassment to CWA”]

I did not come prepared with written testimony, but did make a few extemporaneous remarks along the following lines:

1) regulatory mandates have been a success and should not be disparaged by slogans – we need more regulations and more enforcement.

2) I complimented the presentation by Dennis Doll, the President of Middlesex Water Company, who refreshingly highlighted the key barriers to progress: money, politics, and leadership.

Doll said, several times, that professionals seeking prudent solutions often go against the political grain, and do so at tremendous personal and career risk.

So, I advised the audience, composed mostly of water resource professionals, that PEER’s job is to defend scientific integrity and the front line professionals, who should never have to suffer career harm or retaliation for doing the right thing.

I urged anyone subject to that kind of pressure to contact me anonymously and with total confidentiality.

3) Governor Christie’s Strategic Economic Development Plan and EO 78 require that State agencies conform their functional plans to the State Plan.

This represents a threat to DEP functional plans mandated by statute, including the Water Supply Master Plan and the Water Quality Management Plan. I urged the Council to consider and make recommendations on these issues.

4) Mr. Doll also emphasized the need for leadership and building credibility to secure public confidence and support.

I completely agreed with that.

I then said that Governor Christie’s failed leadership, including his demagogic attacks on local authorities and public employees, along with his ideological opposition to government, taxes/fees or revenues, and regulatory intervention, were serious problems and exactly the opposite of the kind of leadership we need.

I urged the professionals in the room to address those issues head on and generate some pushback to the Governor.

5) In response to statements by Dean Noll that local governments were illegally diverting infrastructure money to other purposes, I urged the professional aware of those situations to blow the whistle: name names!

More to follow. In the meantime:

Turn on the bright lights,

Turn on the bright lights,

What a fool I have been.

I believed

I believed that you loved me

But I was sure taken in. ~~~ “Turn on the bright lights” (Jerry Garcia – 1974)

[Update 12/1/11 – wanted to include a few more points:

I) A Kinder, gentler, less greedy NJBIA?

NJBIA testified and took a different approach to paying for water than they are taking on paying for energy (which is: reduce our costs now, the public and the future be damned!).

Sarah Blum of NJBIA was on her best behavior, and meekly asked the Council and or DEP to estimate the costs on ratepayers, so that businesses could plan to include them in the cost of doing business!

But, if you listened closely, she still held out the threat by dropping the “R” word: recession (translation: don’t dare raise our costs in a recession).

II) Ironic history

Back in 2005, when there was no buzz on infrastructure financing and asset management, I testified to the Council as follows: (transcript at page 112 – 113):

My 2005 written testimony:

III) Empty suits and Empty chairs

Shared organizational traits – it’s not just Pringle

BPU President Solomon Says Fracking Poses No Risk to NJ Water Supply

Outgoing Christie BPU President Lee Solomon gets a laugh about bottled water at a water utility conference

[Important updates below]

NJ Spotlight held another event in their policy roundtable series at Rider University today titled: New Jersey’s Water Supply in the 21st Century (see this for agenda and panelists).

The event was moderated by Tom Johnson, veteran energy and environment reporter.

I won’t even try to rehash everything that was said, but instead simply touch on the highlights and lay out my major impressions (that’s why this site is called Wolfenotes! Interested readers can find followup info by hitting the links).

The panel was comprised of outgoing Christie BPU President Lee Solomon and 4 water industry representatives. There was a lack of countervailing expertise and balance in terms of academic representatives, public policy experts, and environmental advocates.

I was surprised that even DEP was not represented (although DEP did have at least 3 senior middle managers in the audience).[Correction: these were DEP senior professionals, not middle managers].

Although Tom Johnson asked some good questions, the panelists tilted the discussion towards the industry perspective and narrowed the focus to private sector economic and financing issues.

However, audience members were given ample opportunity to ask questions, which generated the best discussion of the day.

I asked 4 questions (which got addressed in some way) as follows:

1) What is the water industry’s take on the long delay in DEP update of the Statewide Water Supply Master Plan? What are key industry issues in that plan?

2) How are competing water uses, i.e. for ecological health, recreation, and fishing purposes, protected in water supply planning and management and DEP water allocation permitting?

3) What are the public health risks and economic concerns in upgrading treatment systems to remove over 500 currently unregulated contaminants USGS and DEP have detected in NJ water supplies?

4) What are the implications of global warming for NJ water supply?

(I forgot to ask about the collapse of the NJ Drinking Water Quality Institute, which has been quietly killed by DEP Commissioner Martin).

Outgoing BPU President Solomon – who was outed as the Christie Cabinet member who denied the reality of global warming – made the most newsworthy and provocative claims.

He began by predicting that although we spend a lot of time and attention on energy issues, “water will be the crisis issue of the 21st century“.

Solomon almost seemed to welcome the controversy and to use the panel as an opportunity to take a few parting shots, particularly at environmentalists who he claimed used misleading “rhetorical, unsubstantiated allegations” against fracking. He stressed that we must not let that rhetoric determine what we do.

During the Q&A session, Solomon was asked by Tom Johnson whether we needed stronger regulations and then “what threat fracking posed to NJ water supply”.

Solomon replied “none” (mimicking Christie’s “frack off”)

Here is what the DRBC impact assessment identifies as impacts and risks of fracking:

Lifting the current DRBC moratorium would open the door to over 18,000 wells in NY and Pennsylvania, according to DRBC. Those wells would use over 100 BILLION gallons of water; generate more than 25 BILLION gallons of toxic hazardous wastewater with unsafe levels of radioactive contaminants; and destroy over 150,000 aces of forests and farms, more than all the land protected by the NJ Highlands Act.

In response to a subsequent question, where Tom asked panelists if they’d like to challenge Solomon’s remarks on fracking, Solomon tried to walk that comment back by claiming that there was “no evidence” that horizontal fracking had ever caused methane gas to migrate to a water supply well.

Solomon said that because horizontal fracking occurs more than a mile below the aquifer that it was geologically “impossible“. He claimed that there has “never been a case of gas migration into a water supply”.

(this is the gas industry spin and it totally misrepresents the totality of the risks and impacts of fracking. The evidence is too abundant to lay out here).

Solomon then went on a rant against environmental activists who he said had used movies and rhetoric to scare and mislead the public.

By comparison, fellow panelist Karen Alexander, President of the NJ Utilities Assc., didn’t attempt to deny the risks of fracking. Instead, she admitted that there were impacts and risks, but that they were due to “bad players” and small companies. (funny, Karen didn’t mention the fact that the risks from well casing of fracking wells are the same as the casing cement job and lax pro-industry regulatory oversight that caused BP Gulf oil blowout. )

An audience member posed a question to the panel about what the profit rate was for the water companies. After a moment of uncomfortable silence, Solomon jumped in and proceeded to spend 15 minutes defending Wall Street investor interests. He explained why Wall Street investors needed to receive at least a 10% guaranteed return on investment (comparing that to the fact that average people earn a paltry 1% or less on bank deposits).

Never was it made so obvious that Wall Street investors hold NJ water consumers hostage to their profits. Thanks Lee, you did a heckofajob!

Solomon arrogantly chuckled that he was glad he didn’t have to face the voters, as he even mocked democracy by claiming that voter referendum was a threat to privatization of water systems. He used the recent Trenton experience, where voter referendum struck down a proposed privatization scheme as his example.

Solomon exhibited perfect Christie style: defend Wall Street investors, promote privatization, mock democracy, attack environmental advocates, and defend and echo the spin of the gas industry.

The majority of the discussion focused on the water industry issues agenda, and the need for government to:

1) educate the public about water issues and the real value of water;

2) increase investment is water system infrastructure

3) increase ratepayer water use charges (average household rate is $42 -$48/quarter – rate cases filed that seek a 25% increase)

4) provide regulatory incentives for investment and privatization (e.g. allow appraisal value to be automatically passed on into rate base rate of return; make it easier to consolidate and privatize public systems, et al)

5) be sensitive to the costs of upgraded treatment systems to meet costly new EPA requirements (EPA unregulated contaminant monitoring rule and new trihalomethane requirements came in for specific criticism)

6) increase beneficial refuse of wastewater

7) deflect and better manage (ill informed) public perception about the risks of contaminants –

The Dupont PFOA south jersey litigation was used as an example where the water company took precautionary preventive actions based on perception of PFOA, even though DEP and EPA did not require it.

But no one talked about any of this: (see: Dupont – Too Big to Jail)

In response to those recommendations by DEP scientists:

• Dupont hired experts to manufacture uncertainty and challenge the DEP’s scientific risk assessment of PFOA;
• Dupont intimidated and attacked the integrity of the DEP scientists, and
• Dupont lobbied the DEP Commissioner to block application of DEP science in DEP regulations and drinking water standards(which drive toxic site cleanup).

8. reduce the use of road salt

All the panelists downplayed  the existence of

• water supply deficits and constraints to growth;
• the public health risks of water pollution;
• the ecological, river/stream flow, and other competing non-human needs;
• the need for planning and/or more regulation;
• the role of water conservation; and
• controversial issues surrounding privatization of public water systems.

Wednesday, NJ Clean Water Council holds its annual public hearing at 9 am in the DEP building – see link for agenda and details. They are recycling last year’s topic!

[Update 1: water industry panelists repeatedly stated that bottled water was “unregulated” (curious, the corporations who should be looking out for clean drinking water had no problem with the fact that fracking is exempt from federal environmental laws, like the Safe Drinking Water Act!).

But it is NOT true that bottled water is unregulated in NJ).

Pursuant to (N.J.S.A. 58:12A-1)., according to the NJ Department of Health and Senior Services:

Specific standards have been developed for impurities that have been detected in ground and surface water supplies. Bottled water sources must meet the same water safety standards that have been developed under the State’s Safe Drinking Water Act and the regulations establishing New Jersey Maximum Contaminant Levels (MCLs) for public drinking water supplies. …

In addition to the potential for chemical contamination, source water supplies can also be subject to microbiological contamination. Spring water supplies can be vulnerable to the infiltration of surface water and pathogenic microorganisms including protozoa, such as Giardia lamblia and Cryptosporidium parvum. These pathogens may enter the ground water strata from which a bottler draws their supply. While pathogenic bacteria are readily eliminated through disinfection, standard disinfection techniques employed by water bottlers such as ozonation and ultra-violet light (UV) treatment do not eliminate protozoan cysts. In order to address this potential problem, the DHSS established rules that require water bottlers to evaluate their source of supply for direct surface water influences. Microscopic particulate analysis or other hydrologic evaluations are conducted and the bottlers must certify that their water is not under the direct influence of surface water or employ additional treatment, which includes submicron filtration to eliminate the potential for the presence of protozoa.

Pants of fire!

The reason the water industry LIES about this is because it is a State level regulation –

They have convinced the Christie Administration to forego state standards at DEP, so they don’t want to talk about State regulations at all – even those that BENEFIT their industry!

[Update 2: Water industry panelists strongly opposed the idea of reducing reservoir storage in advance of a storm to reduce flooding. Solomon agreed with them, and threatened that if pending legislation were passed (see A4287 and A4320), then State regulators would impose (unspecified) new costly infrastructure requirements in response.

I was aware of that issue in the Delaware, where a United Water reservoir release may have caused flooding damage, but now see that it is an issue in north jersey as well, see today’s Bergen Record story: Tough questions on flooding in New Milford for United Water oficials

DEP Breakdown – Yet Oversight Weakened and Incompetent Managers Promoted

[Update: 11/22/11 – parts 2 and 3 of Fallon’s series ran yesterday and today.

While I’ve said I am pleased to see some investigative journalism on this issue, I won’t go into a lot of detailed criticism here, but I am forced to make at least this statement.

Fallon documented massive DEP failures and incompetence. DEP has lied to the public for years to cover those failures up.

During this time, Governor’s and Legislators (of both parties) – beholden to corporate polluters’ campaign cash – despite being fully aware of what is going on, have shown a deep indifference to public health and allowed the problems to fester.

So DEP and Legislators should have absolutely zero credibility based on this performance and pattern of pervasive lies.

So, how does Fallon deal with this credibility problem?

He uncritically and without any factual basis swallows their diagnosis of the problem wholesale (i.e. just too many cases for each DEP staffer!).

DEP officials admit that the remediation program has been deeply flawed, if not broken. Caseworkers were just overwhelmed with too many polluted sites.

But, as we revealed, US EPA Inspector General audits of NJ DEP’s cleanup program found no evidence to support the claim of an over-loaded staff (see EPA IG Report):

Claims about New Jersey’s overwhelming workload were brought to our attention during the evaluation, At that time, we requested documentation from NJDEP to support this workload challenge. We specified that we would need evidence that spanned the 20 year period since these sites were listed on the NPL. NJDEP did not provide this information.

(Also see this a second negative EPA evaluation of NJ DEP performance)

Worse, based only on a total straw man (no one has ever said they wanted “instantaneous environmental cleanup“?) he again uncritically and without any factual support, writes unequivocally prints their solution: privatization

“There are people who want to see instantaneous environmental cleanup,” said McKeon, chairman of the Assembly Environment and Solid Waste Committee. “It’s difficult. We’re dealing with very complicated matters, geology, chemistry, biology.”

Fallon – again uncritically and without rebuttal – allows Assemblyman McKeon to pile on the bullshit even further:

State officials say the program has to work better than the old remediation system, under which sites languished because DEP workers were overwhelmed with cases.

“The alternative was to do nothing and let the contamination sit there,” said Assemblyman John McKeon, a sponsor of the law that established the program. “This gives us the ability to get more sites cleaned up rather than have them sitting around.”

But there were alternatives to privatization – even DEP Commissioner Lisa Jackson testified to the Legislature that the law needed to be strengthen and enforced (see Jackson Oct. 23, 2006 testimony).

So, while Fallon borrowed heavily from this page (without recognition) and did some of his won good work, he ultimately misleads readers and thus fails ethically and journalistically.

And that amounts to cowardly and shoddy work= end update]

Scott Fallon of the Bergen Record wrote a killer story today, providing an in depth look at DEP mismanagement and lax oversight that allowed a Garfield NJ neighborhood to be poisoned with toxic heavy metal chromium.

(See: Dangerous chromium spreads through Garfield groundwater (but someone at the Record softened the original headline, which was: “A Neighborhood in Peril”

A highly toxic industrial chemical has been spreading under a Garfield neighborhood for almost three decades, slowly seeping into homes and threatening the health of thousands.

Residents live in fear that hexavalent chromium is infiltrating their basements, that their families could get cancer and that their property values have been destroyed.

And state officials allowed it all to happen.

We hate to say it, but we told you so – and several times, for several years now.

Back on February 12, 2011, I wrote: (see: Another ticking chemical time bomb goes off in NJ) – and yes we know that technically, chromium migration is not “vapor intrusion” – but issues are similar]

This [Garfield] is another example of negligent oversight and borderline criminal incompetence at the DEP cleanup program.

We predicted this and issued warnings almost 5 years ago: MERCURY-LADEN DAY-CARE CENTER IN NEW JERSEY IS NO ANOMALY – Lax State Brownfield Laws Make Tragedy an “Accident Waiting to Happen”

This is yet another example of “vapor intrusion“ how chemicals can migrate through groundwater, soil, and along infrastructure to poison people in buildings without their knowledge.

The NJ vapor intrusion poster child is the Dupont site, in Pompton Lakes, where 450 or more homes have been poisoned and elevated cancer rates have been documented by State health officials.

DEP knows exactly where all these potential “vapor intrusion” sites are located.

The sites (i.e. sites with known volatile organic chemicals in groundwater) are mapped in DEP’s  Geographic Information System (GIS) data layers (hit this link – scroll down for “groundwater contamination areas“). (Here is DEP GIS FAQ, which identifies software needed to access these maps)

Despite these known health risks, DEP refuses to act proactively to get control of these sites and warn people who live nearby who are being poisoned.

Again, local officials were unaware of what was going on at a highly contaminated site and forced to act and warn their residents“ all because DEP failed to do so.

This DEP failure to act is an outrage (see A Big Map for Toxic Site Cleanup).

DEP knows exactly what needs to be done (but is doing the opposite – even weakening groundwater cleanup requirements).

Worse, the problems in Garfield are not an anomaly.

The causes of those problems in DEP are well known, but have not been fixed and no one at DEP has been held accountable.

On May 20, 2010 I wrote:

So again we see many years of gross mis-management at DEP that resulted in people getting exposed and poisoned in their own homes.

DEP has known about the contamination since 1983 (27 years) , but made a decision (without the Garfield community’s knowledge or approval) that it was “prohibitively expensive” to cleanup the pollution, thus sacrificing people’s lives to industry profits.

Again we see a total DEP failure to enforce cleanup laws. And again DEP failed to notify or warn people of the risks – and as a result again people lose all trust in DEP.

Unfortunately, I’ve seen the same story played out across dozens of NJ towns. The most recent is in nearby Pompton Lakes.

When will the managers at DEP be held accountable for this? When will DEP begin to enforce cleanup laws and force polluters to cleanup?

How many people have to get sick and die before things change?

In fact, in DEP’s Alice in Wonderland World, the lax oversight policies that led to Garfield have been further weakened and the managers responsible have been promoted.

We have been warning about these issues since 2005 – specifically in the case of Garfield, I outlined the problems and solutions in this October 2010 post (see: Garfield cancer risks from chromium in basements is highest in US

The ATSDR “immediate and significant risk to human health” findings validate the concerns I expressed at the May 20 public meeting, when I accused NJ state officials of downplaying the risks, misleading the community, and dragging their feet in responding to an urgent problem.

At tonite’s hearing, when I pressed EPA scientists to quantify what a “very harmful” cancer risk is, they indicated that the risk in sampled homes was 2 in 1,000, or 2,000 TIMES higher than the acceptable risk under NJ laws, which is 1 in a million.

The more recent ATSDR findings also validate our prior work on chromium risks. We have been involved since 2005. […]

I don’t want to repeat the Bergen Record’scoverage, but do want to make a few points that are not gettting adequate attention:

1. The history of the site illustrates another DEP disgrace.

DEP discovered a large spill at EC Electroplating back in 1983.  DEP relied on the polluter, EC Electroplating to voluntarily clean up the site and protect the adjacent densely developed residential community.

That didn’t happen, yet DEP failed to enforce cleanup laws, conduct a cleanup themselves, or warn residents of risks so that they could protect themselves.

DEP requested that EPA take over the site in 2002. For 8 years, very little was done by US EPA.

EPA still has not taken enforcement action or even initiated the first step of cost recovery action against the polluter (RP) EC Electroplating.

2. There are widespread chromium problems in scores of NJ communities that are not getting the proper attention by DEP or EPA.

3. DEP continues to fail to move forward with adopting protective soil and groundwater cleanup standards for chromium, based on the most recent science. […]

6. EPA, ATSDR, and/or NJ DHSSS should conduct (and pay for) medical assessments, bio-monitoring and health tracking of residents in homes found to have high levels of contamination in order to establish a baseline, gauge exposures, and monitor potential health effects of chromium exposure.

It is good to see journalists like Fallon finally doing file reviews at DEP to research and support stories and hold DEP accountable.

But there are hundreds more skeletons in DEP files.

So, when will there be accountability and real reform?

(and why does the Record fail to credit dirty Hippie bloggers? Not only have we documented, written about, and predicted the entire Record story on Garfield, I even briefed a Record reporter on severe flaws in DEP methodology Fallon wrote about – e.g. just one example: DEP mapping of vapor/subsurface migration routinely identifies occupied buildings – yet DEP does not warn residents.)

[Update: