WolfeNotes.com

Countless fiasco’s show that voluntary compliance, privatization, deregulation, subsidies, and reliance on private consultants failed

Bill WolfeLisa P. Jackson, DEP Commissioner.

In testimony before a rare April 15 joint hearing of the Senate and Assembly Environment Committees, Department of Environmental Protection (DEP) Commisisoner Lisa P. Jackson presented the Corzine Administration’s plan to reform the “broken” toxic site cleanup program. The “cornerstone” of the plan is privatization. Jackson opened by invoking the definition of insanity:
“it’s foolish to believe that doing things same way will make things change… it’s a curse to expect a different result by doing the same thing over and over again and expecting success”. (for Jackson’s written testimony, see: http://www.state.nj.us/dep/srp/stakeholders/testimony20080415.pdf
We agree with Jackson – and therefore suggest that the Commissioner is either insane of she has caved in to political pressure by the Governor’s Office.
Does she really believe that corporate polluters are chomping at the bit to spend billions of dollars to clean up 20,000 toxic sites now backlogged at DEP? Does she think DEP staff are preventing polluters from cleaning up sites? That all we need to do is get DEP bureaucrats out of the way and let the private sector solve the problem?
If insanity is doing the same wrong thing over and over and expecting success, then more privatization and deregulation policies are insane – that is exactly what we have been doing for the last 15 years that is causing the problem. Here’s why:

Bill WolfeAssembly and Senate Environment Committee Chairs John McKeon (D/Essex, left) and Bob Smith (D/Middlesex, right).H

Senate Committee Chairman Bob Smith (D/Middlesex) opened the hearings with remarks about Earth Week. Smith touted recent progress on the environment, noting the passage of the Highlands Act, diesel particulate controls, updating of DEP’s environmental enforcement powers, and enhanced electronic waste recycling. Smith’s examples were ironic because the common thread of all these laws are based on traditional regulatory controls, NOT on privatization and voluntary compliance.
Senator Gordon’s (D/Bergen) – burned by major cleanup breakdowns from Hoboken’s Grand Street Mercury poisoning, to Ford in Ringwood, to Paramus toxic schools, to Encap – observed that paperwork was being pushed between DEP and consultants, yet no real cleanups were being completed.
Assemblyman Rooney (R/Bergen) testified that the existing DEP private consultant certification program known as “Cleanup Star”, was “an abject failure”. He repeatedly warned that current widespread use of politically connected pay to play cleanup consultants must stop. “The program has been broken for a long time” Rooney concluded.
Assistant Commissioner Kropp testified that last year, – after 15 years of voluntary compliance and virtually no enforcement – a new DEP enforcement initiative found that more than 80% of sites were violating DEP cleanup rules.

Bill WolfeDEP Commissioner Lisa P. Jackson (right) and Assistant Commissioner Irene Kropp (left) present privatization and deregulation plan for toxic sites.

In stark contrast to the recent progress that rely on a traditional regulatory approach that was emphasized by Chairman Smith’s introductory remarks, since the Whitman Administration, the thrust of toxic site policy has been to shift from disparaged “command and control regulation” to voluntary compliance, privatization, and deregulation. Cleanup laws were amended in 1993 and again in 1997 – at the request of industry. Those changes privatized cleanup decisions, allowed partial cleanups (caps), weakened DEP oversight, expanded the use of tax credit subsidies and market mechanisms, gutted DEP enforcement, and eliminated public participation in the cleanup process.
Ten to fifteen years later, experience has shown that the current flaws in the DEP toxic site cleanup program can be traced back to these policy changes.
Specifcally, these are the failed Whitman era policies that: 1) promote what Commissioner Jackson herself referred to as partial “pave and wave” cleanups that cover up pollution with caps; 2) allow the private sector to set priorities based on real estate markets and economic investment preferences, instead of risks to the community; 3) set cleanup standards based on development and land use of the site instead of protecting public health and the environment; 4) rely on private market “buyer beware” mechanisms such as deed restrictions instead of regulation; 5) to walk away from costly groundwater cleanup requirements (“classification exception areas”); 6) to vest the critical choice to select the cleanup plan solely with the polluter, with no alternatives presented to the public or local oversight; and 7) to allow private contractors to control the cleanup process. All these policies have proven a disasterous failure and directly led to the current backlog.
Why would anyone promote more of the same of these failed policies??
That’s why we conclude that Jackson must be insane to be proposing expansions in the very same policies that have created the problems. After all, it is insane to repeat the same mistakes over and over again and expect success. Either that, of course, of Jackson has caved into the pro-economic development agenda of certain influential members of the Corzine Administration (ahem, Gary Rose).

Bill WolfeRoy Jones, South jersey Environmental Justice Alliance testifies. Urban and minority communities are disproportionately impacted by toxic sites and other environmental health threats.

For additional details – see PEER testimony, see: http://www.peer.org/docs/nj/08_14_4_wolfe_testimony_and_exhibits.pdf
NEW JERSEY TO PRIVATIZE POLLUTION REGULATION TO SAVE MONEY — Outsourcing Clean-Ups Is Recipe for More Toxic Disasters, Legislature Told
http://www.peer.org/news/news_id.php?row_id=1027
To listen to the April 15 hearing: https://edit-blog.advance.net/cgi-bin/mte/mt.cgi?__mode=view&_type=entry&id=1035091&blog_id=2882&saved_changes=1

From Andy Card to Josh Bolten – Bush sells out public to Corporate interests. Ideology and political power trump science and facts
Today’s NY Times story on Bush administration policy prompts historical reflection – and repeats a deeply disturbing pattern. (Administration Moves to Avert a Late Rules Rush http://www.nytimes.com/2008/05/31/washington/31regulate.html?ref=us
Immediately upon assuming office in 2001, the Bush administration imposed a blanket moratorium on all federal regulations then in the pipeline. Hundreds of rules were killed, including protections for clean air, clean water, wild lands, and National Monument designations.
Written at the request of corporate cronies, the infamous “Card memo”, by former auto industry lobbyists and new Bush Chief of Staff Andrew Card, killed scores of environmental and public health protections (see: http://www.ombwatch.org/ombwatcher/ombw20010205.html#lwq
For copy of the Card memo, see: http://www.whitehouse.gov/omb/inforeg/regreview_plan.pdf
The scope of abuse of the public interest by the Bush Administration is staggering – for a fact sheet and Obama campaign position statement on needed reforms see: http://www.scribd.com/doc/191311/Barack-Obama-08-Taking-Back-Our-Government-Back-Final-Fact-Sheet
Today the NY Times reports that Bush new Chief of Staff Josh Bolten has issued what amounts to a moratorium on new regulations on the way out. According to the NY Times:
“The White House has also declared that it will generally not allow agencies to issue any final regulations after Nov. 1, nearly three months before President Bush relinquishes power.“
But this latest stealth maneuver fooled no one:
“John D. Walke, director of the clean air program at the Natural Resources Defense Council, denounced Mr. Bolten’s memorandum as intending to “shut down regulation for the remainder of the Bush administration.”
“Until the bitter end,” Mr. Walke said, “the administration will pursue deregulation on behalf of polluting industries and avoid regulation that would protect public health, welfare and the environment. This memo is a codification of that agenda.”

For as copy of the Bolten memo, see: http://graphics8.nytimes.com/packages/pdf/washington/COS%20Memo%205.9.08.pdf
Reforming the Executive Branch, including weeding out pro-industry political appointees (hacks) and undoing all the regulatory damage of the Bush regime will be an enormous challenge of the next administration.
But this type of corruption is not limited to Washington DC beltway.
Right here in NJ, we face similar challenges at the Department of Environmental Protection (DEP). It is widely recognized that DEP never recovered from the Whitman Administration’s budget and staff cuts. But very few are aware of the damage to the environment done by pro-industry imposed policy and regulatory changes that still have not been repaired after 8 years of Democratic administrations.
On top of all that, personnel problems caused by pro-industry and/or incompetent middle and upper management block needed environmental progress. DEP as an institution is in real distress.
Worse, we face equivalent threats of a Card/Bolten anti-regulatory policy in multiple places:
1) DEP budget cuts continue – the third consecutive Corzine budget cuts environmental funding;
2) The Corzine Administration’s Fast Track pro-economic development regulatory policy and the pending Permit Extension Act legislation would roll back and freeze environmental protections;
3) Under the bogus pretext of a depressed housing industry, DEP Commissioner Lisa P. Jackson established a “Permit Efficiency Task Force” stacked with industry lobbyists to further roll back protections; (see: http://nj.gov/dep/permittf/
4) Jackson is promoting privatization and more deregulation of the toxic site cleanup program. Yet these same policies are the causes of multiple very visible and controversial botched cleanups – guess we should call it “the surge” on the environment.
When a set of privatization and deregulation policies are not working, just do more of them. That’s working for Bush in Iraq, right?

DEP Caves to Bristol-Myers Squibb, IntraWest Mountain Creek Resort, & other developments – abandons Pequest, Wallkill and Stony Brook

Bill WolfeBPG properties 359 acre Hopewell Campus – proposed 800,000 square foot expansion along rural Carter Road impacts a tributary to Stony Brook. Textbook car dependent sprawl.

“Also noteworthy, is the fact that Governor Jon Corzine personally visited Mountain Creek and expressed his belief that the proposed redevelopment project is a definitive example of smart, environmentally sensitive, economic development.”
Schoor-DePalma engineers – comment that killed Black Creek in Vernon to allow destruction of threatened Bog Turtle habitat (see: http://www.peer.org/docs/nj/08_27_5_intrawest_black_creek_comments.pdf
Trenton – A long awaited decision on protecting New Jersey rivers and lakes from pollution and development is disappointingly modest and pockmarked with exceptions and loopholes, according to Public Employees for Environmental Responsibility (PEER). As adopted this past week, many key water-bodies will not be safeguarded and any added protections are unnecessarily vulnerable to legal challenge.

Bill WolfeBPG Hopewell campus

The May 20, 2008 decision by the state Department of Environmental Protection (DEP) applies the “Category One” (C1) designation, effectively the state’s highest level of water-quality protection which limits development impacts and discharges of pollutants, to streams, rivers and lakes that either support critical wildlife or feed into a major drinking-water source.
According to DEP, it adopted C1 status for 686 of the 910 stream miles proposed back in 2007. DEP’s Earth Day press release boasted that the proposal was “unprecedented” and “the largest ever” – both factually false claims, as the McGreevey DEP designated over 3,000 miles of C1 buffers. Ironically, the DEP press release was titled “DEP Delivers on Commitment to Protect Water Quality” – a commitment clearly contradicted by major concessions to powerful interests.

Bill WolfeBMS Hopewell campus expansion – pressure from BMS forced DEP to eliminate proposed Stony Brook C1 designation

Even the DEP claim on 686 new stream miles protected is an overstatement, because approximately half of these new C1 waters (between 250-400 miles) are located within the Highlands Preservation Area and thus were already protected by the Highlands Act. That Act legislatively established 300 buffers on all waters in the Preservation Area, designated all Preservation Area waters C1, and strictly prohibited water quality degradation. Further drawbacks which undermine the DEP claim of a major water quality achievement include the following serious flaws:

Bill WolfeStony Brook, directly behind BMS Campus.

• DEP eliminated the backlogged C1 “candidate waters” list of 1,600 streams that DEP scientists determined met the C1 criteria. This backhanded repeal opens more than 1,000 stream miles to development; and

Bill WolfeThese headwaters of Stony Brook were not even considered by DEP as a C1 candidate, despite exceptional ecological values. DEP ignored a petition from the Stony Brook Watershed to do so. Hundreds of miles of headwater streams remain unprotected statewide.

• DEP adopted a new, less protective C1 designation methodology. DEP embraced this revised C1 criteria despite virtually unanimous opposition from the environmental community. These method revisions create two problems by –
1) Erecting arbitrary, non-scientific barriers against safeguarding a wide variety of water-bodies, such as those providing drinking water for less than 100,000 people, important for recreation, and saline waters (estuaries and coastal bays); and

Bill WolfeStony Brook is a DEP stocked trout stream.

2) Exposing the entire plan to new legal challenges. Just last year, the prior C1 criteria had been upheld by the Appellate Division as scientifically sound and legally valid against a lawsuit by the Builders Association. Thus there was no reason to change the method and invite new legal challenge.
“DEP seems determined to snatch defeat from the jaws of victory by giving industry opponents a second bite at crippling lawsuits,” stated New Jersey PEER Director Bill Wolfe, a former DEP official and architect of the C1 program initiative from 2002-2004. “A new round of litigation could tie things up for some time and, if successful, force DEP back to the drawing board, undoing years of work.”

Bill WolfeDEP Commissioner Jackson held Earth Day photo op at the Stony Brook watershed – only to abandon proposed upgrade to accomodate BMS.

DEP eliminated a portion of the Stony Brook (Hopewell), portions of the Wallkill River, including tributary Black Creek (Vernon), and portions of the Pequest – one of NJ’s most renowned trout streams – from the C1 final list due to corporate pressure. DEP dropped protection for a specific stretch of the Stony Brook to accommodate 1.6 million square feet of proposed corporate office park expansion and expansion of the Pennington sewer plant. Similarly, it abandoned high quality waters on the Wallkill to satisfy InraWest’s massive 1.6 million ski resort in Vernon.
“Loopholes in this decision read like they were written by their corporate beneficiaries,” Wolfe added, noting that specific DEP stream deletions match public comments filed by developer opponents and surgically accommodate their developments. “DEP did not even protect the portion of Stony Brook where it held its Earth Day photo-op press conference announcing its plan.”

Bill WolfePennington water supply well sucks water from Stony Brook, just feet from BMS and sewage plant discharge. DEP abandoned this portion of the Brook, allowing treatment plant and BMS expansions.

Bill WolfeBuilders go wild before Senate Legislative Oversight Committee on May 1, 2008. They strongly opposed C1 protections.

Opponents who filed comments against the original C1 plan include the state Builders Association, Business and Industry Association, Chamber of Commerce, Bristol Myers Squibb (Hopewell Campus expansion), Intra-West Mountain Creek Resort, BPG (former Lucent Technologies Hopewell site), Princeton Institute for Advanced Study, Heritage Minerals, and the Departments of the Army (Picatinny Arsenal) and Air Force. Significantly, the DEP plan was also opposed by both Governor Corzine’s Office of Smart Growth and the state Department of Transportation.
(comments provided upon request)
Prior to the proposal, the environmental community met with and tried to warn Jackson not to go forward with gutting the C1 method. This strongly worded January 24, 2007 letter was ignored – later comments on the proposal restated these objections: http://www.peer.org/docs/nj/c1_letter.pdf
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Read the2007 Earth Day release ballyhooing the original C1 proposal
http://www.nj.gov/dep/newsrel/2007/07_0023.htm
View the C1 decision document with revisions noted
http://www.peer.org/docs/nj/08_27_5_c1_decision.pdf
Compare the full original proposal
http://www.nj.gov/dep/rules/notices/052107b.htm
Review how DEP weakened C1 stream buffers earlier in 2008
http://www.peer.org/news/news_id.php?row_id=986
New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability

“corporate makeover of politics struggling to be democratic”

Bill Wolfe

On this Memorial Day, as I sit on my porch, basking in gorgeous tree dappled sunlight, my tranquillity is upset by reading a powerful analysis that concludes that our vaunted Constitutional republic has been hijacked.
This reading forces me to reflect upon my own career – and recall the fact that some of my own most cherished values and aspirations have been relegated to the ash heap.
For those who still read and reflect, let me share an excerpt that captures the essence of sense of loss:
“[Corporate values are] [n]ot, one might think, the kinds of qualities desirable in those sworn to “protect and defend” a Constitution of limited powers and checks and balances. That familiar phrase from the oath of office points to the traditional understanding that served to distinguish public from private institutions. Its crucial supposition was the government consisted of nonprofit institutions whose basic responsibility was “to promote the general welfare.” The measure of performance was political, not economic; the common good, not the bottom line. That ideal was to be represented in its personnel; they were depicted in democratic terms, as “public servants” whose ranks were open to all who were qualified, and dedicated not to acquisitive pursuits but to defending and improving the lives of citizens. The ideal of public service was meant to embody a mode of conduct and a set of ideals emphasizing the responsibilities accompanying public power and the near absolute contrast between “government service” and business practices.
[…]
Public servants were supposedly the instruments by which a democracy could be realized. That same ideal of the public servant, chosen solely on the basis of merit, represented the point where the ideal of democracy and republican elitism converged in a kind of salutary tension; between the values of commonality and equality and the claims of excellence, not of superiority. The ideal of a merit system was an offshoot of the classical republican conceptions of elites. Classical republicanism had conceived elites in purely political terms: disinterested service on behalf of the public good, not the amassing of wealth. The corporate revolution has reshaped the republican ideal in the image of the corporate executive. In the process it has ruptured the alliance between the demos and the elite, between democracy and republicanism.
Instead of a convergence of commonality and excellence, the skills and ethos of aggressive management – its culture and beliefs and practicices, its forms of corruption – have been rationalized into a corporate makeover of politics struggling to be democratic. It signals the defeat and corruption of commonality. Accordingly, recent policies of the Bush administration have deliberately promoted inequalities of wealth, taxation policy, health care, educational opportunities and life prospects. In the process the egalitarian momentum generated during the thirties and revived during the sixties … has been reversed. As a result democracy has been reduced to a rearguard action, struggling not to advance and improve the lives of the Many but merely to defend the shredded remains of earlier achievements.”
(emphases mine)
(“Democracy Incorporated” Sheldon Wolin. page 145-146)
[closing note: [if this post in any way implies that I support the technocratic elite model, be advised that I come down firmly on the side of Dewey – see Dewey Lippman debate: http://www.wier.ca/~daniel_schugurens/assignment1/1922lippdew.html

[Update: most recent – Bergen Record Editorial: Soiled again
http://www.northjersey.com/opinion/editorials/Soiled_again052208.html

Let me preface this post with two brief points of perspective.

First, I strongly support additional funding for school construction and operations in Abbott school districts.

Second, I worked for Scott Weiner when he was Commissioner of DEPE and have great respect for his intelligence, accomplishments, and commitment to public service.

It is with that perspective in mind that I throw down this challenge to Weiner, one he invited by calling out critics of NJ’s schools construction program.

According to yesterday’s Star Ledger article, Weiner not only went on offense, he expanded the policy purposes of the schools program to reflect a new development orientation:

Lawmakers ask extra $2.5B for school construction
http://www.nj.com/news/ledger/jersey/index.ssf?/base/news-0/1211431109318780.xml&coll=1

“Weiner said the authority is also working on plans to generate additional funding for schools by incorporating them into broader development projects or by selling development rights atop new school buildings.

Weiner insisted the revamped Schools Development Authority has eliminated the management problems that hampered the early years of the program, and called on superintendents to challenge critics who imply the program is still mismanaged.

“We need to be able to call them out on it and say that’s simply not true,” he said. [end quote].

I will respond to that challenge and ask that you post here (or otherwise make publicly available) responses to these two simple questions:

First question: Inspector General Cooper’s April 21, 2005 Report to former Governor Codey found that $330 million had been spent on sites “patently unsuitable” for schools -perhaps the poster child for these findings are the purchase of a Superfund site in Gloucester City and former Manhattan project site in Union City. Cooper’s Report also found (quoting findings) (full Report here: http://www.state.nj.us/oig/pdf/njscc_preliminary_report.pdf

1) SCC purchased lands that are patently unsuitable for schools or that pose excessive acquisition costs. Sites targeted for school construction have been found to be environmentally contaminated, requiring substantial additional expenditures for cleanup and remediation;

2) SCC has minimal guidelines for what constitutes an acceptable site for a school and generally accedes to the site submitted by local school authorities. To date, the SCC has committed to or paid approximately $328.8 million for the acquisition of sites or associated costs;

3) SCC has no mechanism to assure that he Board is provided with a complete profile of candidate sites or with information on potential alternate sites;

4) [these flaws] hamper SCC’s ability to bring proper due diligence to land acquisition.

So my question is: I understand that you have revoked the Memorandum of Understanding (MOU) with DEP regarding environmental review of school sites (per your comment in the Bergen Record story on the Union City Manhattan Project site).

But what process has replaced that DEP MOU? What standards and safeguards have been put in place to guarantee that the community is involved in school siting decisions; that schools are not sited on contaminated land unless it is demonstrated that there are no clean alternatives; that complete cleanups take place (permanent remedy, unrestricted use) at any contaminated site that is selected; and that we stop wasting lots of money on avoidable cleanup costs due to bad siting decisions and otherwise stop needlessly putting our children at risk?

What specifically has SDA done to set enforceable standards and policies to prevent recurrence of these problems?

For additional details, see also:

NEW JERSEY SCHOOL CONSTRUCTION REFORM GETS FAILING MARKS — No Environmental Reviews Prior to Building More Schools on Toxic Sites
http://www.peer.org/news/news_id.php?row_id=899

NEW JERSEY LEAVES DOOR OPEN FOR MORE SCHOOLS ON TOXIC SITES — Governor’s “Working Group” Dodges Question of Acquiring Toxic Land for Schools
http://www.peer.org/news/news_id.php?row_id=762

RADIOACTIVE SCHOOL SITE IS TIP OF NEW JERSEY TOXIC ICEBERG — Over 100 School Site approvals expedited under Secret Deal
http://www.peer.org/news/news_id.php?row_id=679

Second question: You stated that

“the authority is also working on plans to generate additional funding for schools by incorporating them into broader development projects or by selling development rights atop new school buildings”

Why is everything considered a development, finance, or moneymaking operation?

Why can’t the basic problems be solved before sophisticated new policy initiatives are embraced? Has this Administration learned nothing from the “asset monetization” fiasco?

Looking forward to your reply. Governor Corzine has not responded to my letters, See: http://www.peer.org/docs/nj/06_24_4_corzineltr.pdf