WolfeNotes.com

Dupont’s Deadly Phosgene Gas Unit Another Potential Bhopal

NJ Supreme Court Finds Dupont Illegally Retaliated

“Responsible Care” (R) Exposed

I’ve been meaning to write about this case for months now.

Glowing exaggerated national press reports of a recent minor DEP enforcement action at the Dupont Chambers Works south jersey facility [and the upcoming RCRA permit hearing] now prompt me to get around to doing so.

Another recent development is relevant as well.

Despite Dupont’s recent announcement to phase out its commercial wastewater treatment at the plant, some NJ legislators are seeking to send fracking wastewater there, perhaps in an effort to revitalize Dupont’s bottom line there.

So here is the egregious whistleblower torture story.

Echoing the worst excesses of the Soviet Gulag, the NJ Supreme Court recently found that the Dupont Corporation engaged in illegal retaliation against a whistleblower.

The Dupont conduct and retaliation were so severe and intolerable – including pretextual mental health evaluations (redolent of the Gulag) and mandated 12 hour shifts in isolation (comparable to the treatment of Wikileaks source Bradley Manning) –  the Supreme Court’s opinion discussed the whistleblower’s mental illness in the context of “torture”.

Here is what the whistleblower was concerned about:

In October 2003, Seddon filed complaints with DuPont’s management about unsafe conditions in the operation of the phosgene reactor. Seddon warned that deficiencies in the operation of the reactor could cause an explosion and the release of deadly gasses into the atmosphere, killing and seriously injuring nearby residents. Seddon compared the safety violations relating to the phosgene reactor to those that led to the infamous chemical disaster in Bhopal, India.5

Dupont suspended Seddon for 53 day and made his life hell in retaliation. Here is what the Supreme Court found:

So, looks like our friends at Dupont are just holding up that voluntary chemical industry corporate standard of “Responsible Care”(R)

No need to fear them and no need for government regulation! [Update: even DEP sees this essentially only as a matter of implementation of Dupont’s corporate policy, not regulatory mandates to protect the public interest:

DuPont needs to apply its corporate vision of sustainability and environmental stewardship to its day-to-day operations at the Chambers Works facility, which means making the necessary investments in equipment and personnel that are critical to protection of the environment, public health and the health of workers,” said Wolf Skacel, Assistant Commissioner for Compliance and Enforcement.

Read the NJ Supreme Court’s decision on the case here

Read an independent lawyer’s summary here. [Sorry, this link is subscription only. Contact me for SHRM article by Connecticut lawyer Diane Cadrain. Here is Cadrain’s conclusion:

The high court held that CEPA covers not only discharge or suspension, but also other adverse employment actions affecting the terms and conditions of employment and that the remedies available included all proximately caused harm, including economic losses. It pointed out that the jury had decided that DuPont retaliated against Seddon because he expressed legitimate safety concerns about the operation of the phosgene reactor, that DuPont’s retaliatory action caused Seddon’s mental injury, that Seddon’s mental injury disabled him from working, and that his inability to work resulted in his lost wages. The court reversed the appellate decision and reinstated the jury’s award, holding that the jury had the power to award pay for lost wages because it found that DuPont’s retaliation made Seddon unable to work.

Donelson v. DuPont Chambers Works, N.J., No. 065628 (June 9, 2011).]

Zombie Permit Extension – Logging Public Lands – Regulatory Flexibility

Hot day in a Trenton lame duck legislative frenzy yesterday – a brief overview

Zombie Permit Extension Act

With virtually no public awareness, in an effort to ram a controversial bill through a lame duck legislature, Assemblyman Lou Greenwald (that economic development champion of importing toxic waste to Dupont’s south jersey Chambersworks facility) quietly posted a bill to extend “The Permit Extension Act”.

(see Star Ledger story: Assembly panel advances bill to extend developer permits

The legislation, made available just a few hours before Thursday’s hearing and still not posted online as of 8 p.m., enraged environmentalists who called it a giveaway to the same developers who bankrolled lawmakers’ recent campaigns.

Because the bill ignores the causes of the economic recession and housing crisis, the bill will do nothing to stimulate the economy, create jobs, or keep people from being foreclosed on and evicted from their homes.

More homeless, more layoffs – more broken dreams and shattered lives.

But the bill will harm future efforts to reduce greenhouse gas emissions, protect public health and the environment, and manage growth.

Some things in Trenton never change – completely out of touch – another cruel hoax (see prior posts on prior iterations of the Zombie Permit Extension Act):

• Sarlo Shills for Banks and Builders (again) (12/14/09)
• A Cruel Hoax – On many Levels (7/1/08)

[Update: 7/20/08 – “Am I the only one who finds it strange that our government so often adopts a so-called solution that has absolutely nothing to do with the problem it is supposed to address?“
Al Gore 7/18/08

“The regulatory relief provisions of the bill are totally unrelated to the causes of the economic problems the bill purports to address.”
Bill Wolfe 6/30/08

Opposing a prior Permit Extension bill, in words that are even more relevant today, on July 1, 2008, I wrote:

It’s no secret that thousands of NJ working families are struggling just to make ends meet. The recent housing finance crisis – caused by Wall Street fraud and greed – is forcing thousands of families into mortgage foreclosure and lost hopes and dreams. Thousands of small business – particularly the small home builders – are being driven towards bankruptcy. Credit crunch and high debt levels are causing record rates of bankruptcy filings.

So what do our political leaders in Trenton do to respond?

They grandstand and cynically blame environmental protections and enact a meaningless “solution”, the “Permit Extension Act”.

That law, while rolling back environmental protections, does absolutely nothing to address the underlying causes of serious economic problems.

Worse, few realize (because the issue has not been reported in the press coverage) that the Permit Extension bill treats urban NJ residents like second class citizens and will severely hamper NJ’s ability to achieve Governor Corzine’s highly touted global warming emission reduction goals.

“Regulatory Flexibility” (S1336/A2129)

I went to Trenton yesterday to testify on the Regulatory Flexibility Act bill (see this for analysis of that bill):

Due to a large number of important policy bills on the agenda, the Senate Budget Cmte. was unable to hear that bill and will reschedule a continuation of the hearing.

We will keep you posted on the bill and hope readers weigh in with their legislators on it. It is a real threat and would dramatically change the regulatory process to benefit special interests.

Thus far, the bill has flown under the radar, and already passed the Assembly by a unanimous 75-0 vote.

Commercial Logging on Public lands (S1954/A4358)

In other Trenton matters, the Senate Budget Cmte. released a controversial bill that would allow commercial logging of NJ public lands (parks, forests, Green Acres).

This bill, as amended by the committee, would direct the Department of Environmental Protection (DEP) to develop a forestry harvest program to provide for the harvest of forest products on State-owned lands for which a forest stewardship plan has been developed. The harvest program would allow forest management activities on State-owned lands identified by the department.

The bill is strongly opposed by academic scientists, foresters, and all environmental groups (except NJ Audubon).

Senator Bateman (R/Somerset), Senate Co-sponsor, after learning of the issues raised by the bill, in an unusual move abandoned it and took his name off it and is no longer co-sponsor.

A former Mayor of Readington Township testified about environmental and public interest abuses the bill would create, based on a controversial project in her town. She outlined huge public opposition to a local forestry project, which prompted a Hunterdon County Freeholder to say: “We’d have to be some kind of stupid” to support that.

The sponsor, Senate Environment Cmte. Chairman Bob Smith, one of the few friends of environmentalists in Trenton, claimed he was blind sided by the opposition to the bill.

In highly unusual criticism, Smith claimed that he had support of the environmental groups up until 2 weeks ago, when someone found out that the bill would allow the cutting of a few trees. Smith chastised environmental groups and said that they needed to educate their members about forest management. Ouch!

So, given these contradictory claims, I went back and checked the legislative history and listened to the testimony when the bill was heard and released from Smith’s Committee on June 3, 2010.

I had testified earlier that day on another bill, but had left before the testimony on S1954.

During the hearing, as Smith was going through the testimony sign in sheets, I was shocked by what I heard – noticing that many sign in slips were in the same handwriting, he accused someone of “fraud” for signing up people to testify who were not present at the hearing. He said that this was a major “credibility” problem for that person.

I then listened to the testimony – environmentalists strongly opposed the bill – Sierra Club, Highlands Coalition, ANJEC, NJCF.

So, while I don’t know what transpired between June 2010 and yesterday, Smith clearly knew that there’re were major problems with this bill and enviro’s were not supportive or actively opposed (despite a series of amendments eliminating the Pinelands and putting safeguards in the bill).

Smith left yesterday’s hearing before the controversy could be resolved.

After the hearing, Chairman Sarlo chided Smith for failure to resolve conflicts in the Cmte of jurisdiction, instead of having to listen to environmental testimony in the Budget Cmte.

Sweeney Attacks Labor Rights, Civil Service and Home Rule (S 2794[1R])

While waiting for the Regulatory Flexibility bill to be heard in Senate Budget Cmte, I listened to the charged debate on Senator Sweeney’s latest strong arm tactics and attack on labor and public employees: (S 2794[1R])

AN ACT promoting the more effective operation of local government and the sharing of services among local units, amending and supplementing P.L.2007, c.63, amending P.L.2007, c.54, and making appropriations.

Sweeney managed a four bagger in his radical shared municipal services bill – attacking – in one bill! – “core labor standards”, the long honored institution of Civil Service, NJ’s home rule, and democratic control, or what Committee Chair Sarlo called = quote: “the will of the People”.

Sweeney presented the bill to the Committee, and immediately went on offense by claiming that all opponents failed to reach out to him with their concerns until the bill was posted for Cmte hearing just days ago.

That statement was promptly challenged by Bill Dressel of the League of Muncipalities, who said the league had met and sent him written criticism of the bill.

I was pleased to see the League and labor unions (AFL-CIO, CWA, police, firemen) push back against Sweeney’s bullying tactics and attack on public workers.

The bill is a radical right wing shift in policy.

It would strip Civil Service protections, violate “core labor standards”, and would allow an independent Commission to over-ride local governing bodies and a voter referendum, and punish towns who failed to comply with their recommendations by withholding state aid:

If the voters of a municipality do not approve a shared services proposal or if a municipality or other entity identified in a proposed shared services agreement does not enter into and implement the proposed shared services agreement within 14 months following the effective date of the proposal, the State would annually reduce that municipality’s State aid by the amount of savings that was estimated by LUARCC.

… The committee amended the bill to remove the provisions of the bill that would have permitted LUARCC to order a municipality or other public entity to enter into a shared services agreement. The committee amendments also provide that when LUARCC recommends a consolidation or sharing of services, it must consider the impact of the consolidation or sharing of services on the public entity’s ability to comply with State and federal laws and regulations.

But, with the exception of Chairman Sarlo and Senator Buono – Democrats betrayed their principles and political base and fell in line w/Sweeney and voted to release the bill.

And Sarlo got an earful from Sweeney after the vote!

“Actually, to be honest, nobody over here is paying any attention to science.” ~~~ (Dr. Rajendra Pachauri, Chair IPCC (12/7/11 – Democracy Now!)

Although you wouldn’t know it from following the US press, the most important negotiations in human history are underway right now in Durban, South Africa.

The latest round of global climate change negotiations is underway  – and thankfully, Democracy Now! is covering the “Conference of the Parties“ (COP17), as the event is named. Strongly recommend watching their coverage.

It appears that the Obama Administration, (representing the United States) is taking a very destructive position in the negotiations.

The US is undermining world consensus by:

• pushing voluntary market based models (trading, offsets, etc),
• interfering in the renewal of the Kyoto Prototcol (to which the US is NOT a signatory),
• postponing binding negotiations until 2020,
• continuing to oppose legally binding emissions reductions, and
• offering a paltry reduction plan, amounting to just 3% of 1990 emissions.

Scientists insist that far more aggressive reductions are required and that emissions must peak no later than 2015, or else the world will face irreversible and catastrophic climate change (if in fact we are not locked into such a “tipping point” scenario already).

Canada seems just as bad, rejecting Kyoto targets and insisting on tar sands development.

A contingent from Canada today was ejected from the conference, and accused Canadian officials of “listening to polluters, not the people”.

So, – as Dr. Pachauri says – they are not listening to the science and as Greenpeace, Canadian, and US activists say they are not listening  to the people – just who are Governments listening to?

(of course, that’s a rhetorical question: the corporations and the warmongers, of course).

While I don’t pretend to follow these issues sufficiently closely to write about them, I will instead urge readers to do their own research AND GET ACTIVE.

It’s hard to resist the conclusion that we’re doomed, but, on a more positive note, did want to pass on an excellent interview with Dr. Pachauri on Democracy Now! today – Watch it!

(PS – hey Engenton – this is the closest your photo will ever come to a man of honor)

DEP Waiver Rule Comes Under Attack

There are two important regulatory initiatives up in Trenton tomorrow, both are likely to fly under the radar screens.

First the good news:

The Assembly Regulatory Oversight Committee will hear Assembly Concurrent Resolution ACR 206 (Barnes, McKeon, Gusciora (D’s)), which finds that DEP’s proposed “waiver rule” is inconsistent with Legislative intent.

This is a good move, the first step to forcing DEP to withdraw the flawed proposal or have it be killed by the Legislature. (see: Dialectic of Red Tape (or Waive This!)

The Senate version (SCR 239 – Buono,Gordon D’s) was released from Committee and is pending Senate floor consideration. Will Sweeney post it?

Now for some really bad stuff:

The Senate  Budget and Appropriations Committee will hear S1336/A 2129, to expand the scope of the Regulatory Flexibilty Act.

The bill is an ill-advised attack on necessary protections of public health and the environment, under the guise of providing flexibility to small business.

Small business often lack the expertise or resources to meet strict environmental requirements, and often are some of the worst violators and polluters. They need at least as much regulatory oversight as larger competitors.

The bill includes the standard political cover and rhetorical defense: a vague, unworkable, and unenforceable exception: so long as the public health, safety, or general welfare is not endangered;

But make no mistake, the bill is an all out attack on environmental regulations, and would create a poison pill to the adoption, enforcement, and implementation of needed protections.

The bill would create a new petition process for “small business” to block adoption and enforcement of regulations.

Every industry trade group has “small business” members who could do industry’s bidding and block environmental regulations under the pretext of small business flexibility.

The bill includes new factors and standards, that create an impossible burden for a regulatory agency to meet, and thus invites challenges to virtually any regulation.

For example, the bill would allow a business to petition to block any rule if they could show that the state agency:

(2)   the regulatory flexibility analysis issued failed to contain or consider a matter or factor required by law or contained a clear error or omission of a material fact which directly resulted in the agency’s failure to consider, or the agency’s underestimation of, an adverse economic impact.

It is impossible for any agency to consider all material facts and economic impacts on each individual small business.

Similarly, it is impossible to not underestimate the economic impact on some small business.

By providing this petition process, the bill would block adoption of DEP rules required to implement federally delegated programs, and thus violates federal law.

Equally important is the fact that the bill does NOTHING to address the real problems facing small business, including:

• lack of effective consumer demand for products and services due to recession
• inability to secure financing;
• high health care costs; and
• competition from Wall Street backed corporate giants who are destroying Main Street level small business.

Thus, the bill is not only an attack on the environment, but a cruel joke to the small businesses suffering in this economic recession.