WolfeNotes.com

You like roses and kisses and
pretty men that tell you all those pretty lies.
Pretty lies.
When you gonna realize they’re only pretty lies.
Only pretty lies, just pretty lies.
~~Joni Mitchell

Bill WolfeJanine Commerford, Assistant Commissioner, Mass. DEP (Center), Irene Kropp Assistant Commissioner NJ DEP (right) and Mass. cleanup consultant (left) testify to Senate Envrionment Cmte. Commerford has Bachelor and Master degrees in geology from MIT

In reporting the news from Lake Wobegon Minnnesota, Garrision Keillor, host of the popular NPR radio show “A Prarie Home Companion“, ends with the famous line:
“That’s the news from Lake Wobegon, where all the women are strong, all the men are good looking, and all the children are above average”. http://prairiehome.publicradio.org/
In a similar fashion, two earnest folks from Massachusettss dropped in to Trenton last Monday to advise the Senate Environment Committee that all the corporations were dedicated to protecting the environment, all the consultants were honest and competent, and all government officials ethical and well intentioned.

Bill WolfeCommerford downplayed data on the high percentage of privatized toxic site cleanups that fail audits: “failure may mean that someone hasn’t explained themselves very well” she said.

Massachusetts DEP Assistant Commissioner Janine Commerford provided an overview of the privatized toxic site cleanup program. Her 11 minute testimony prompted 45 minutes of questions from the Committee.

Bill WolfeSenate Environment Committee Chairman Bob Smith (D/Middlesex).

Committee Chairman Bob Smith probably made the right decision in prohibiting public testimony, lest the NJ lobbyists burst their Massachusetts bubble with some harsh rebuttals from the NJ experience in toxic site cleanup. We don’t want to be rude to such nice guests, now, they travelled all the way from Massachusetts!

Bill Wolfe

Listening to the Committee’s deferential demeanor and softball questions, it was obvious that the Committee was … ahem… stimulated by the Massachusetts testimony.
According to the May 20 Courier Post story, Vice Chairman Jeff Van Drew even dropped the “M” bomb to describe the testimony. Van Drew concluded:

Bill WolfeVice-Chairman Jeff Van Drew (D/Cape MAy)

“It was the perfect marriage of insuring we are maintaining the environment and at the same time being cost-effective and stimulating the private sector”

Bill Wolfe

Well now that the ….ahem…. dust from the hearing has settled (or is the bloom off the rose?), let me lay out some data (no pun intended) to critique and distinguish the Massachusetts program from the NJ experience.
First of all, Commerford testified than in Massachusetts, only 2% of toxic site cleanups leave contaminated soils under a cap and include land use deed restrictions. Over 30% are cleaned up to background. There are no continuing monitoring and maintenance requirements.
In contrast, NJ relies almost exclusively on caps and deed restricts more than 90% of sites, allowing toxic soil and/or polluted groundwater to remain (groundwater CEA’s). Virtually none are permanently cleaned up to background levels. Last year, when DEP finally took a look (after 15 years of blindly issuing thousands of approvals that relied on them for “public protection”), DEP found that 80% of deed restricted sites were in violation of basic requirements, like filing the deed notice. These findings of widespread non-compliance prompted DEP Commissioner Lisa Jackson to warn that the DEP voluntary compliance system was broken and the private sector could not be trusted:
“We realize that the state’s system that allows self-reporting for monitoring of these contaminated properties is broken, and we are taking the first steps toward fixing this,” Commissioner Jackson said. “Still, this situation seriously undermines the department’s ability to ensure protection of public health and the environment. We are committed to using every enforcement tool available to bring these responsible parties into compliance as promptly as possible.”
(see: DEP TAKES ENFORCEMENT ACTIONS AGAINST RESPONSIBLE PARTIES FOR FAILURE TO MEET CONTAMINATED SITE MONITORING REQUIREMENTS
http://www.nj.gov/dep/newsrel/2007/07_0041.htm
DEP’s compliance effort had to rely on a paper file review, because they have only 1 “cap cop” to field inspect thousands of capped sites across the state – no big deal I guess, because the Massachusetts program does not even require ongoing oversight, monitoring, and maintenance (Wonder what they do with those pesky groundwater cases? NJ has over 6,000 of them impacting drinking water supplies) .
Second, Commerford testified that 20 of her staff conducted 3,000 “audits” of private toxic site “cleanups” (that’s 150 per staff ~ roughly 3 per week). She also said that an “audit” took “3 hours” to conduct. So what Massachusetts calls an audit is not even equivalent to what NJ DEP would call an administrative completeness determination review. I have conducted numerous file reviews of toxic site cleanups. Believe me, 3 hours barely enables a superficial scan of the scientific documents and regulatory correspondence at a typical cleanup site.
Third, with respect to compliance and enforcement, Commerford testified that Mass DEP had never initiated criminal investigations; had issued financial penalties in only 1 case (for over 30,000 “cleanups”) and only for $1,000 per violation. Commerford said that the privately controlled Licensing Board she also Chairs had revoked only 26 licenses over a 15 year period at almost 50,000 cases. Commeerford’s idea of enforcement deterrence was to post notices of license revocation on her website.
In comparison to NJ, while NJ DEP has been extremely lax in enforcement actions, there have been criminal referrals in dozens of cases. In many other highly visible cases, gross incompetence, negligence, and fraud by cleanup consultants and corporations have prompted lawsuits, newspaper headlines, media investigative series, and public outrage across the state. This has prompted an unprecedented series of 3 consecutive years of legislative oversight of the failed DEP cleanup program.
Fourth, Commerford promoted more “non adversarial face time” between DEP and private consultants to “build relationships and trust”. She acknowledged that she had “gone easy on enforcement” and once unsuccessfully tried to “stop being nice”. She was oblivious to the need for a critical distance between the regulator and the regulated community. She seemed ignorant of the extensive public policy literature on the damaging consequences of “agency capture”.
Fifth, Commerfod used ideologically loaded industry propaganda code words that revealed bias. Specifically, Commerford parroted the extremely negative connotative phrase “command and control” to describe traditional government regulatory oversight. At the same time, she spewed praise for the glories, repeatedly claiming how well “the private market” was working.
Last, Commerford was extremely vague on the audit data. In attempting to downplay and dismiss high audit failure rates, she erroneously claimed that her agency “did not grade” audits. That is false. According to the Licensing Board’s own Loss Prevention Committee March 2006 Report, “audits” are in fact “graded”. Specifically, “audits” where “serious violations” are discovered are issued a “Notice of Non-Compliance” (NON). According to the Report’s data, as of 2006, 386 “serious violations” were found (a 46% rate) and issued NON’s (see page 4-5 of Report @ http://www.lspa.org/download/whitepapers/InternReportForm1112005.pdf
So, while Commerford’s testimony was refreshingly engaging by Trenton standards, unfortunately it was both sketchy on critical details and dangerously naive.
Certainly not a model for NJ to consider.
For a more realistic view based on DEP and Massachusetts’ own audit data, see: NEW JERSEY MODEL FOR PRIVATIZED TOXIC CLEAN-UPS FAILS AUDITS — Serious Violations Found in More than Two-Thirds of Audited Massachusetts Sites
http://www.peer.org/news/news_id.php?row_id=1034
NEW JERSEY ADMITS PRIVATIZED CLEAN-UP PROGRAM HAS FAILED — State Relies on Industry and No Longer Inspects Sites Until They End Up in the News http://www.peer.org/news/news_id.php?row_id=932

ps – oh, Ms. Commerford, the population of your home state is estimated by the US Census bureau as 6,437,193 in 2006 (when asked by Chairman Smith, neither NJ DEP or Mass. DEP officials knew this): http://quickfacts.census.gov/qfd/states/25000.html