WolfeNotes.com

[Update: 1/14/22 – so incredibly sad that, 12 years later, I must post this clarification. By using that quote, I certainly did not mean THIS (Paul Street):

More than a third of APoT base believes it is legitimate to employ political violence – the rule of force and men over the rule of law – to save “the American way of life,” by which Republikaners mean white- and male-supremacist hierarchy and the holy, backstabbed nation’s intimately related right to extract and burn every last fossil fuel on a melting planet. ~~~ end update]

This is a wonderful story that I am glad is beginning to get the larger attention it deserves. It is a story that weaves history, local political activism, and people who care about their community.

This place is special to me. When our kids were young, we built a new home in Hopewell. Because we sold our old home before construction was complete, we had to live for the summer in a rented house just above Jacobs Creek.

We were within earshot of what our kids lovingly named “The Noisy Bridge”. When a car passed over the wooden deck steel bridge, it made quite a noise. We would laugh each time we heard that lovely sound during that wonderful summer of 1993.

But enough of my personal nostalgia – click on the below link and read Marc DiIonno of the Star Ledger today – he does a superb job:

At historic Victorty Trail in Mercer County, a new battle emerges at Washinton’s path

“This issue has brought a lot of people together,” Cooper said. “This a rural area, so we all just go along about our business. But the bridge issue got us involved.”

The group formed last summer to petition local leaders to spare the old bridge.”We heard over and over, this was a done deal,” Kerr said…

“This our town, and our way of life, and we are going to fight for it” Beth Kerr said.

[1/30/10 Update #1 below]

[Update #2 – 1/31/10 Bergen Record follows my lead with a good story, but crappy headline: NJ Gov. Christie’s transition team has harsh words about state’s environmental department

[Update #3 – 2/6/10: DEP rules under review, agency’s fate uncertain – Slammed By Transition Report By TODD B. BATES – ENVIRONMENTAL WRITER – February 6, 2010 – end update]

In my singular focus on economics, I failed to make an important point in yesterday’s post on the intellectual dishonesty of the Christie Environmental Protection Transition Report.

In addition to using the economic recession to scapegoat DEP and environmental protections, the Report actually blames DEP – not the developers and industrial polluters – for harming the environment. So DEP is killing the economy and the environment too!

Starting in the first paragraph, the Report lays its twisted assumptions and radical dismantling policy agenda right on the table:

When the Department of Environmental Protection Transition Subcommittee began its intensive investigation five weeks ago into how the Department operates, based on our collective experiences we were skeptical if it could possibly be reinvented and survive. The Department has created cumbersome, confusing and often conflicting regulations that in some cases go beyond legislative intent, and in others, have no enabling legislation at all.

Transition team members openly admit that they were skeptical and wondering if DEP could survive – in other words, they were considering abolishing DEP.

And exactly like the lies about DEP’s role in the economic recession, by claiming (without identifying a single case) that DEP rules go beyond legislative intent and lack enabling authority, the Report lies about DEP’s legal and regulatory policy.  The Legislature has Constitutional authority to veto any DEP rule that is inconsistent with legislative intent.

They have never done so.

Similarly, the Report cites none and I can’t recall a recent NJ court decision that found that DEP regulations were ultra vires and lacked enabling legislation (with partial exception of the Court decision on the CAFRA public access rule, which is cited appropriately).

But the Report plows on, in similar false, misleading, and fact free mode:

The Department has failed to fulfill its own mission statement of protecting our State’s vital natural resources while taking into consideration economic vitality. …

Simply put, the DEP must “do less with less” and do it better.

Yes, that was rather simply – or let’s say simplistically – put.

Aside from mis-stating the mission of DEP (i.e. it is not DEP’s statutory mission to promote or consider “economic vitality“, which is a slogan not found in any environmental law on the books), the Report is grossly out of touch with the people of NJ who want MORE environmental protection, not less (virtually all issue polls say this).

In concert with Christie’s Executive Orders 1-4 and his nomination of a DEP Commissioner with zero environmental experience or expertise, this represents a truly radical departure from NJ’s bipartisan support for strong environmental and public health protection.

So why are we not hearing howls of protest from NJ’s environmental community?

Where is the Minority Transition Report? The NJ Environmental Federation (NJEF) was represented on the Transition Team and their organizational name endorses the Report.  Do they agree with the Report’s recommendations?  Or is NJEF keeping their powder dry in hopes of appeasing Christie as his anti-environmental runaway train steamroller builds even more momentum as the economy continues to tank?

Where are the critical analyses of Christie’s Executive Orders? All I’ve seen is the Sierra Cub’s Bergen Record Op-Ed.

Where are the “action alerts” and State House press conferences? Where are the Democrats? Where are the moderate pro-environmental Republicans? Where is CWA Local 1034 that represents DEP professionals? Where is the media?

Shortly after reading the report, I read a January 22 story in the Star Ledger about a dispute about another Christie Transition Team. According to that story, a Rutgers professor with integrity and courage spoke out:

One team member, Rutgers University professor Nancy Wolff, quit the committee in December, saying “unprofessionalism and bias compromised the quality” of the final report, which was released today.

“The ability to consider important bold reform options was chilled by an orchestrated and deliberate act of bullying and coalition building,” she wrote in a memo outlining the reasons for her resignation. “Proprietary interests limited the free exchange of ideas and recommendations.“

Why no similar courage and integrity in the environmental community?

Given that there was no dissenting Report and no statements from environmental groups about the Report, are we to believe that they support the Report and that there was professionalism, lack of economic bias, a free exchange of ideas, and a high quality Report?

That silence is shocking in light of the following institutional dismantling and policy rollback recommendations in the Report. They would inject more corporate influence, privatize essential public functions, and further politicize public policy decisions by DEP. The Report, in the context of Christie’s Executive Orders, represent a systematic attack on DEP’s independence and capacity, on objective science, and an assault on environmental protection.

The policy agenda elevates economic considerations above public health and environmental protection in violation of law. The recommendations on science and regulatory policy are a formula for gridlock and would prevent DEP from adopting public health and environmental standards and protections. The Report reads as if it were written by lobbyists and lawyers for the Chamber of Commerce, Builders Assc., Chemical Council, and Pharmaceutical Manufacturers (and it probably was, given the Transition Team’s composition).

So here are the Report rollback recommendations, listed in the order they appeared in the Report, not priority. Some of the worst are boldfaced. We will discuss the implications of these recommendations in subsequent posts):

scale back or eliminate selected strategies that contribute the least to environmental improvement.

Reexamine regulations to ensure they are properly focused on specific, well defined goals, and minimize or eliminate peripheral requirements. An example of this is the waterfront Public Access rule adopted by DEP in 2007 without direction from the Legislature, which completely changed the existing waterfront public access framework and imposed onerous new fees without standards for how the fee would be applied or calculated.

Eliminate the Office of Policy, Planning and Science and allocate policy and planning responsibilities to the appropriate regulatory programs

Establish an advisory panel of external experts to advise DEP on matters of scientific and technological innovation.

Reinstate the Alternative Dispute Resolution program under the Counselor to the Commissioner which had helped expedite settlements, thus reducing the number of disputes referred to the Office of Administrative Law (OAL) as contested cases.

Establish an Office of Economic Analysis at the Department of State or the Office of the Governor as a shared service for all State agencies and tasked to provide advice directly to commissioners regarding economic drivers including the projected economic effect of new regulations. This office should also assist in risk assessment analysis for when agencies are setting regulatory policy.

For every rule proposal, require a comprehensive discussion and peer review of the science the DEP considered in support of each element of the proposal, and for every rule adoption, the science relied upon by those commenting to support different policy choices, and any agreement, disagreement and uncertainty regarding the science.

Require the Office of Economic Analysis to evaluate the economic and financial impacts of proposed rules or other major regulatory decisions, including the potentially adverse impacts associated with taking no action

Require the Office of Economic Analysis to evaluate the analyses of economic impacts received from interested parties during the public comment period.

Convene one or more informal meetings with stakeholders to discuss rulemaking objectives and accept input on policies, and whenever appropriate, distribute draft rule text to stakeholders for comment prior to the preparation of rule proposals.

The DEP must fundamentally overhaul the way development projects are regulated and streamline the permitting process. The State must create an office that provides a single point of entry with an accountable person to shepherd companies pursuing complex projects through the regulatory process. The DEP must immediately suspend the implementation of requirements that have not been properly adopted through rulemaking, and immediately reconsider existing regulations that impose requirements that are not grounded in sound science, are impractical to satisfy, and conflict with other State environmental and land use policies.

Create a business/project ombudsman in the Office of the Governor to create a single point of entry for complex projects.

Provide that jurisdictional determinations (determinations as to whether or not a permit is necessary) may be requested and provided on-line.

Delegate land use permitting to the Meadowlands, Highlands, and Pinelands Commissions for the areas within their jurisdiction.

Eliminate duplicative reviews by accepting the approvals conducted under the Municipal Land Use Law (MLUL) from other governmental jurisdictions when appropriate; for example, stormwater management plans need not be subject to multiple reviews.

Delegate land use permitting at brownfields sites to the Site Remediation Program

Immediately suspend the inappropriate use of the Landscape Project mapping of purported Threatened and Endangered species habitat.

Immediately rescind Administrative Orders requiring the application of 300-foot buffers from certain streams or rivers where existing rules require a 150-foot buffer.

Immediately suspend the practice of conditioning permits on the imposition of conservation easements on portions of property not subject to the pending application.

Revise existing rules to allow for the greater use of waivers and exceptions to specific requirements when project applicants demonstrate that alternatives will yield the equivalent or better environmental results. Immediately direct, as a matter of policy, that hardship waivers allowed under existing rules be granted when justified.

Reexamine buffer requirements in urban/disturbed areas and Planning Areas 1 and 2 designated for growth under the State Development and Redevelopment Plan (hereinafter referred to as the State Plan) as applied to wetlands, C-1 waters and potential Threatened and Endangered species habitat under Flood Hazard, Stormwater, and Wetlands rules.

Revise the Water Quality Management Planning rules (WQMP); update and improve sewer service areas through regional planning and coordinate with the State Plan.

Utilize the previously recommended business ombudsman to overcome existing regulatory hurdles without undermining environmental protections.

With respect to the State’s efforts to seek compensation for damages to natural resources (NRD), we recommend that NRD efforts fall under the jurisdiction of the Site Remediation Program, and that rules be adopted to provide transparency, certainty and consistency in the assessment of those damages.

Revise the Interim Rule to limit its scope to SRRA required elements. For example, the provisions of the interim rule applying new requirements for vapor intrusion were not mandated by SRRA and should be subject to fuller pubic review and comment before adoption. Vapor intrusion occurs when contaminants in groundwater or soil emit vapors that enter structures and could have a potential impact on human health.

Apply the DEP’s efforts toward compliance assistance to all site remediation professionals and responsible parties.

Review and revise current requirements pertaining to vapor intrusion within building structures, including how and when to test, notification, and/or mitigate

Transfer all responsibility for NRD assessment restoration and recovery to Site Remediation.

Adopt regulations regarding NRD assessment, restoration and recovery that are transparent, stable and predictable.

There needs to be a recognition that agriculture, like every other business in New Jersey, has been overregulated and burdened by DEP rules. Farmers should be recognized as stewards to the land and treated as partners in land preservation not potential polluters.

Revenue generation should be maximized through the use of concessions, camping and park rentals and forest management.

There needs to be a full examination of DEP’s existing self-audit policy utilized by the regulated community, to ensure it does not create disincentives for voluntary disclosure and provides adequate and appropriate time to correct violations

There needs to be a full examination of DEP’s administrative penalty regulations to ensure they are fair and consistent

There needs to be a full examination of the implementation of the “Grace Period” regulations to ensure that they follow the legislative intent of the Grace Period statute. The Grace Period statute was aimed at making a distinction between minor and non-minor violations and providing an appropriate time to correct those violations. However, the DEP has inappropriately implemented the regulations by issuing automatic violations with limited time to respond.

Simplification of the permitting process: Title V Permits which are permits for certain large facilities, administered by the DEP as required under the federal Clean Air Act, have become extremely cumbersome and voluminous in New Jersey. Steps should be taken to reduce the complexity of these permits.

Chromium Standard: Re-evaluate the current chromium standard, taking into consideration natural baseline levels and peer reviewed scientific data.

Prevailing wage at brownfield sites: In order for the State to attract investment and compete for economic development with bordering states, New Jersey must eliminate the prevailing wage requirement under State reimbursement programs for brownfield sites.

Update #1 – I would be remiss if I failed to include this clarification, which was just sent to my attention as a reminder of Dave Pringle’s NJEF statement (which I received in 1/22 and should have included in the original post):

On 1/22/10  2:37 PM, “David Pringle” <dpringle@cleanwater.org>  wrote:

As you consider the reports, I’d like to share some information.

The reports are the opinions of the chairs of the subcommittees, in DEP’s case, Marcia  Karrow, on Highlands I think it’s Mike DuHaime. They serve as recommendations to, not positions held by, either the Governor or Acting Commissioner. Exactly how much weight they will have remains to be seen and will be up to the Governor, DEP Commissioner, us, …

The DEP report was influenced by, but not always reflective of the Governor’s campaign positions, the other 16 members including myself, several staff, and dozens of stakeholders that met with and/or provided recommendations, including Sierra, NJEJA, NJAS, Baykeeper, KIG, and NJEF.

David Pringle, Campaign Director
NJ Environmental Federation
Garden State Chapter of Clean Water Action
cell: 732-996-4288
email: dpringle@cleanwater.org

“A cynic is a man who knows the price of everything and the value of nothing”

~~~ Oscar Wilde

A review of Governor Christie’s Environmental Protection Transition Report reveals that his environmental policy is based on lies, exaggerations, and unsupported and/or flawed premises.

Like a doctor misdiagnosing a disease, the cure is sure to do more harm than good.

So let’s begin our review today with a single focus on the economic claims. In future posts, we will analyze the policy and program recommendations.

The Report starts right out and forms its foundation on a flat out lie. With absolutely no evidence, the Report makes this radical claim:

“The Department has driven economic investment out of this State often with policies that, ironically, provide little or no environmental benefit. […]

… [DEP has] retarded both environmental progress and economic growth,

The Report provides no data – not even one “horror story” anecdote – to support a claim that any investment has been driven out of the state by DEP.

In fact, overwhelming evidence supports the conclusion that reckless private sector speculation has caused the economic collapse. The Wall Street driven collapse has caused the financial crisis and recession, not DEP or environmental protections.

The dual economic and state fiscal/budget crises have nothing to do with DEP or environmental regulation (in fact, there are DEP permits issued for thousands of projects that are not being built, as per the recent Permit Extension Act, legislation introduced back in 2008 because

An increasing number of permits are scheduled to expire due to inability of the banking, real estate and construction industries to obtain financing in the current economic downturn.

Because the Christie Transition Report recommends economic analysis, in terms of economic benefits, below I dust off the findings of a recent DEP economic study. Here is the DEP news release announcing $200,000 study.

For some odd reason, DEP managed to keep the final Report, issued in July 2006, a secret. I could find no press releases or any evidence that the Report’s findings were incorporated in any DEP policies, regulations, or permit decisions. The Final Report was quietly posted on the Division of Science and Research’s website. Despite score of press releases posted by DEP, the only place I could find Report mentioned was in July 31, 2007 Corzine press release:

“New Jersey has preserved over 1.3 million acres of open space and farmland. In addition to the environmental impact of preserving open space, a recent DEP report valued New Jersey’s “natural capital,” which includes open space, at $20 billion annually.”

Land cover data show that we are losing this natural capital. According to a May 1, 2007 DEP Report,

“The results indicate that New Jersey is losing open space at the rate of 15,000 acres a year, roughly the same rate as reported between 1986 and 1995.”

Christie’s DEP Commissioner nominee Bob Martin supports “good cost benefit analysis” – so here’s a starting point Bob:

First look at DEP annual “investments” – here is OLS analysis of DEP FY 2009-2010 budget: OLS Analysis

As I wrote on November 4, 2009:

“taxpayers pay less than 2 tenths of 1% of the State budget to fund the operating budget of DEP. This implements the polluter pays policy. There are no taxpayer savings to be had by further slashing DEP budgets. ONLY 24.7% of DEP’s FY 2009 $230 million operating budget, just $56.81 million, is paid by taxpayers from the state general fund. (read DEP budget here);

Then consider the economic benefit findings below – which don’t include public health benefits of DEP pollution control and environmental quality programs – and calculate the ROI on that small DEP investment!

Executive Summary

Our results are summarized below; all figures are 2004 dollars. The figures include only ecosystem services; they do not include ecosystem or abiotic goods or secondary economic activity related to a given ecosystem.

1. Wetlands provided the largest dollar value of ecosystem services: $9.4 billion/yr for freshwater wetlands and $1.2 billion/yr for saltwater wetlands. The most valuable services were disturbance regulation ($3.0 billion/yr), water filtration ($2.4 billion/yr), and water supply ($1.3 billion/yr) for freshwater wetlands, and waste treatment ($1.0 billion/yr) for saltwater wetlands. (Disturbance regulation means the buffering of floods, storm surges, and other events that threaten things valued by individuals or by society as a whole.)

2. Marine ecosystems provided the second-largest dollar amount of ecosystem services: $5.3 billion/yr for estuaries and tidal bays and about $389 million/yr for other coastal waters, including the coastal shelf out to the three-mile limit. (It should be noted that the fish and shellfish obtained from these ecosystems are covered elsewhere in this report and are not included in these totals.) Nutrient cycling (i.e., waste dilution and removal) was the most important service provided by marine ecosystems, with a value of $5.1 billion/yr.

3. Forests cover the largest area of any ecosystem type in New Jersey, and because of that the total value of the ecosystem services they provide is one of the highest at $2.2 billion/yr, excluding the value of timber. Habitat services are currently the most important of these services ($1.4 billion/yr); other important services provided by forests include water supply and pollination (about $238 million/yr each) and aesthetic and recreational amenities ($179 million/yr).

4. Urban green space covers relatively little of New Jersey but has a relatively high dollar value per acre and provides an estimated $419 million of ecosystem services annually, principally aesthetic and recreational amenities ($361 million/yr). Ecoservice values for other types of urban land and for barren land were not investigated in this study.

5. Beaches (including dunes) provided by far the highest ecoservice value per acre; their small area limited their annual ecoservice value to about $330 million, mainly disturbance regulation ($214 million/yr) and aesthetic and recreational amenities ($116 million/yr).

6. Agricultural land includes both cropland (estimated at $78 million/yr of ecosystem services) and pastureland (estimated at $45 million/yr). These values relate solely to the services provided by farmland, mainly habitat services from cropland ($75 million/yr) and waste treatment services from pasture land ($26 million/yr). They do not include the value of the food provided by farms, which is covered elsewhere.

7. Open fresh water and riparian buffers provided services with an estimated annual value of $66 million and $51 million respectively, mainly water supply ($64 million/yr) and aesthetic and recreational amenities ($51 million/yr). Another part of this report covers the value of water as an ecosystem good.

The total value of these ecosystem services is $19.4 billion/year. If we exclude studies which were not peer-reviewed and/or which did not report on original research, the result is a lower estimate of $11.6 billion/year. However, this exclusion makes it impossible to estimate values for a number of ecosystems and/or ecoservices, and we believe that the higher figure better represents the value of the services provided by New Jersey’s  ecosystems. If the excluded studies are added back but weighted at 50%, the total value of ecosystem services would be $15.5 billion/year.

[Update: YouTube videos of the testimony (click on]

Tonight, the Linden City Council voted to approve a Memorandum of Agreement (MOA) with Dupont.

The deal is designed to promote development of a new $5 billion 750 megawatt coal power plant at Dupont’s toxic waste site in Tremley Point on the Arthur Kill, known as “PurGen” (George Orwell couldn’t have thought up a better name: “pure” for dirty coal).

In extraordinarily transparent and corrupt fashion, the Dupont MOA requires that the Linden City Council shall support:

all resolutions or ordinances, approvals, permits, and agreements reasonably necessary to carry out the … development of the [PurGen] Power Plant;

The City will actively support the development of the [Dupont] property for the Power Plant by joining in applications for financing or other government assistance, and by endorsing permit applications….The City will request the Linden Planning Board to promptly schedule and hold all necessary hearings to implement the foregoing, as well as the requisite site plan approvals.

It could not be a clearer case of corruptly selling democratic power and responsibilities – and the Council did so for chump change. It was also a huge missed opportunity to take a renewable energy path and invest in sustainble jobs.

While PurGen has managed to secure BILLIONS of dollars in federal subsidies, including up to $90 per ton of carbon they capture and sequester in the energy/global warming legislation now pending before Congress (see the American Clean Energy and Security Act (H.R. 2454) (subsidies City negotiators seemed ignorant of), the City of Linden gave away the store and got jack shit for it.

Having fought exactly his kind of corporate ripoff by the garbage incineration industry in the 1980’s and early 1990 – and fought Dupont just last night in Pompton Lakes where hundreds of working families were poisoned by Dupont – to me, it was a painful and ironic defeat. Ironies – no, they were tragedies – abounded:

1. For 20 years, Dupont has failed to cleanup their 109 acre toxic site in Linden, and now has successfully used that criminal failure as blackmail against a City desperate for jobs and investment. Even worse, the thought of one of the world’s largest toxic polluters joining the coal industry that is killing the planet is almost too much of an outrage to consider;

2. former DEP Commissioner Brad Campbell, the man who hired me and I worked for, is the lead negotiator for the PurGen coal power plant. While DEP Commissioner, he cut a sweetheart “natural resource damage” deal with Dupont;

3. A retired General Motors Manager spoke in support of the deal. His testimony went unchallenged. Yet GM sued the City of Linden to reduce their tax assessment and GM has destroyed more American jobs than just about any other corporation;

4. Union workers rallied to politically support the deal – yet they were grossly manipulated by the big money players and will see no jobs from this project in any reasonable time frame, if at all;.

5. City Council thinks they negotiated a MOA that is in the economic interests of the City. Yet while the MOA requires concrete commitments by the City to support and approve the coal plant, the MOA only provides vague and unenforceable “benefits” and “protections” that will be ignored AFTER the City surrenders it’s leverage provided by the legal power to block the project. The MOA is a total giveaway. It fails to include a bottom line minimum on host community economic benefits, yet the agreement requires that the City support all land use approvals and environmental permits for the project. By making this concession up front, the City has lost all its leverage to extract economic fair share revenues. But, the agreement not only requires that City surrender its democratic rights to block the project, it require that the City provide tax breaks (PILOTs), tax exemptions, secrecy, and other economic concessions to Dupont and PurGen.

6. Perhaps most ironic and worst of all, the NJ Environmental Federation (NJEF), NJ’s largest “grassroots” environmental group that repeatedly publicly claims to have an understanding with Governor Christie to oppose the Linden PurGen coal project failed to testify. Dave Pringle, who lives right next door in Cranford – as usual – showed up over an hour late and said nothing, while his colleagues bravely stood up and took on hundreds of heckling union thugs.

[Update 1/29 – Apologies, I should not have used the term “thugs”. The union guys were civil, only a small number heckled. I support unions and labor activism. This was written in anger for having been called an “extremist”]. Where was Dave? I guess Dave was preserving all that political capital he thinks he has with Governor Christie, who promised the following during the campaign (but has yet to be heard of since):

Saying No to Coal

Coal plants are another significant source of this nitrogen and that is among the many reasons I oppose the proposed coal plant in Linden. The $5 billion to build this plant would be better focused on renewable and efficiency efforts, like those outlined in my energy plan. Due to global warming and for our own security, we need to reduce not increase our reliance on fossil and foreign fuels

I guess Linden is just like Oyster Creek cooling towers – keep quiet and the Governor will deliver.

Yeah, Right.

[Update 1/28/10: here is the Star Ledger’s version: Linden officials approve $2.5 million deal for PurGen coal-fueled power plant

[Update below]

 

There was another packed hearing of hundreds of residents held last night in Pompton Lakes NJ (see this for December hearing coverage on cancer cluster findings).  For today’s Bergen Record coverage: Pompton Lakes cancer study widens

In remarkable “60 Minutes” level testimony, the former Mayor spoke about the history of how he disclosed the Dupont contamination in the late 1980’s.

He challenged State DEP officials who said they were legally powerless to require that Dupont sample homes. He noted that he was able to set up local programs that required Dupont to compensate homeowners for lost property values, subsidize their mortgages, and take other steps to protect residents.

But, as he demanded more from Dupont, he said he came under intense pressure and intimidation. He received death threats and devices were exploded on his front lawn [1/29 deleted. See comments]. Since then, for almost 20 years local officials have looked the other way as the cleanup stalled. Some even helped Dupont keep the contamination quiet, in naive hopes or possibly corrupt plans that a promised Dupont major development and resort golf course will lower their property taxes.

But now residents themselves are fighting back. They are demanding that US EPA take over the cleanup, due to imminent and substantial health risks and over 20 years of delay in cleanup, which has led to a deep lack of trust in both NJ DEP and Dupont.

A federal court found that similar risks and delays at a Honeywell chromium site in Jersey City violated federal law. The Honeywell Jersey City chromium case set national precedent on RCRA citizen lawsuits on “imminent risk to human health and environment” – see an excerpt of that case below from my June 1, 2006 testimony to NJ legislature: (view full testimony here): 

“Echoing these conclusions, in a case involving an “imminent risk to human health and environment”, a federal Circuit Court judge expressed no confidence in the DEP’s oversight of a highly contaminated chromium site in Jersey City, concluding

…[T]he court finds that the evidence demonstrates a substantial breakdown in the agency process that has resulted in twenty years of permanent clean-up inaction. [ICO v. Honeywell. US Third Circuit Court. 2004]

In August 2009, an EPA audit found major problems in NJ DEP oversight and lack of enforcement of toxic site cleanups (see: EPA AUDIT RIPS NEW JERSEY DEP PERFORMANCE – Corrective Actions Never Implemented for Toxic, Wetlands and Other Programs .

Before that, a June 2008 EPA Inspector General’s Audit of NJ DEP cleanup program found complete breakdown. Amazingly, EPA was told that NJ DEP takes Dupont consultants “at their word“ without independent field verification of facts (see: EPA REPORT BLASTS NEW JERSEY TOXIC CLEAN-UPS – State Failures to Enforce Law Lead to Worst Delays in the Country

As a result, EPA has taken over control of cleanups at several NJ sites due to multiple massive failures by NJ DEP. Residents are demanding that EPA take similar control over the Dupont site (see: New Obama EPA Regional Administrator Plants a Flag in NJ).

Last year’s disclosure that chemical vapors from contaminated groundwater were seeping into hundreds of homes triggered outrage – the proverbial straw that broke the camels back.

Residents, led by then Council members Ed Meakem and Lisa Riggolio started asking questions about Dupont’s control, lax DEP oversight, and cleanup delays, which then led to the formation of a watchdog group called Citizens for a Clean Pompton Lakes,  CCPL.

This group forced the state to conduct a health study. That study found elevated levels of cancer associated with chemicals from Dupont’s site. (see this story for how CCPL started)

Last night’s meeting was EPA’s first step towards their promise to do more at the site in response to citizen’s demands. EPA has agreed to assume “co-lead” status for certain limited aspects of the cleanup, but not to list the site under the federal Superfund program. EPA prefers the RCRA “Corrective Action” program as the mechanism for federal oversight. EPA also pledged to begin a formal community involvement initiative.

But EPA assured residents that final decisions on EPA’s role have not been made.

EPA’s current limited commitment needs to be expanded significantly.

Residents must keep the pressure on EPA. In addition to establishing a 24/7 presence in the community and deploying mobile sampling equipment, the key indicators of whether EPA is serious in fulfilling their promise to the people of Pompton Lakes are:

1) EPA must legally take complete control over the technical aspects of the site, including direct hiring of contractors and consultants to collect data, finish the remedial investigation, conduct the cleanup, and install vapor mitigation systems that homeowners agree to (with no liability waiver). EPA scientific and technical control must be the same as that at so called EPA lead Superfund “orphan sites” – Dupont and DEP have grossly abused their power and have absolutely no trust in the community. Dupont can have no role in future cleanup activities, other than to write checks;

2) EPA must send a bill Dupont for all the work and credibly threaten (in an enforceable order) to file a lawsuit to recover triple damages if they refuse; and

3) EPA must issue a formal enforcement document  (under RCRA or Superfund) that:

a) sets a mandatory and enforceable schedule for project activities,

b) forces Dupont to pay for them,

c) imposes large enforcement fines; and

d) seeks huge natural resource damages and property and health damages that reimburse the people of PL who suffered injuries to health and property values.

4) commit to work with ATSDR to assure that a scientifically valid epidemiological study is conducted in the entire town, and to secure funding for residents’ health monitoring and appropriate medical testing.

Here are some resources to help assure that EPA does that:

Administrative RCRA Authorities 

The types of administrative orders that can be issued under authorities provided by RCRA are as follows:

• RCRA Section 3008(a) Orders (“Compliance Orders”) — Used to require any person that is not in compliance with the requirements of RCRA to take steps immediately or within a stated time period to return to compliance. The order can contain penalty provisions up to $32,500 per day per violation and can suspend or revoke a facility’s permit or interim status. When EPA issues a compliance order, the person issued the order can request an administrative hearing on the factual provisions of the order.

• RCRA Section 7003 Orders – Used when there is evidence that the past or present handling, storage, treatment, transportation or disposal of hazardous or nonhazardous waste may present an “imminent and substantial endangerment to health or the environment”. Section 7003 Orders, issued to any past or present entity (i.e., generators, transporters, or owners or operators) who is contributing (or has contributed) to the problem can order that steps be taken to clean up the facility or location or to change or stop the operating procedure causing endangerment.

• RCRA Section 3013 Orders — Used to evaluate the nature and extent of a problem or potential problem through monitoring, testing, and analysis when it is found that the presence of any hazardous waste at a facility or site where hazardous waste is or has been treated, stored, or disposed or where such waste from any facility or site may present a substantial hazard to human health or the environment.

EPA RCRA website (link)

We note the continuing support of Senators Frank Lautenberg and Bob Menendez, who again sent representatives last night.

In closing, we note that several residents spoke that they were appalled by the behavior of the mayor and DEP Assistant Commissioner Kropp.

Residents accused Kropp of being disrespectful, arrogant, and condescending. Maybe the meds weren’t working, but I agree that Kropp’s continuous smug grin and haughty tone of voice were completely unprofessional and inappropriate. Several times, she flat out blamed residents for delays in installation of vapor intrusion systems in homes.

She also refused to meet with certain groups or individuals, implying that they were effectively outside agitators and did not represent “the community”. I found these remarks divisive and outrageous.

I also must note that both Kropp and the Mayor confirmed that they had met privately prior to the meeting. I assume this was an attempt to get their stories straight. Again, this covert type of one sided communication destroys all trust. This is just another reason that DEP must cease to be involved in the cleanup.

[Update 1/28/10]: a minor victory for CCPL – see point #1 below. Bergen Record: Officials say Pompton Lakes residents can use own contractors