WolfeNotes.com

Fine Print Warning! You Are Now Entering the Weeds!

Just kidding with that headline! (and no, this is not about the denial of global warming science).

But, seriously, how would you react if the US Surgeon General issued a tobacco industry and cancer health document that went into great detail and conducted a scientific literature review of various studies that linked lung cancer to causes OTHER than smoking.

And then the Surgeon General recommended that the tobacco companies consider these other studies and that they alone be allowed to make the medical DIAGNOSES and CAUSE OF LUNG CANCER.

Absurd you would say, right?

Of course the tobacco companies should never be allowed to do that and of course it would be absurd for a government health agency to tee up science to let the tobacco industry off the hook

Well that’s exactly what DEP has done in the new “Vapor Intrusion Guidance Document”.

I initially missed this in my post last week, probably because DEP initially did not post the technical Appendices to the new Vapor Intrusion Guidance.

Well, after a heads up from a friend, I just got around to reading the technical Appendices and came across this outrage. The problem with the DEP VI Guidance  is far worse than I originally thought.

Check out this introduction –

Introduction

For over 20 years, it has been known that many volatile organic chemicals are present in the indoor air of homes (Wallace 1986). While small contributions from outdoor air concentrations of volatiles may occur, indoor levels are typically higher (Sexton et al. 2004, Weisel et al. 2005). This is due to indoor sources of these chemicals, including the use of consumer products, the presence of home furnishings, carpeting or other building materials, the use of construction materials and fuels, and activities such as smoking and cooking. Also, vapors from gasoline, other fuels, and other chemicals may invade the indoor air space from an attached garage (Weisel et al. 2008). For this reason, when investigating the possibility of vapor intrusion occurring in homes and other buildings, it should be evaluated whether or not volatile contaminant concentrations measured in homes are present due to these sources, rather than from vapor intrusion from underlying contaminated ground water or soil.

Now keep in mind that the “investigations” referenced in this text are conducted by private consultants to polluters, with no government oversight. The consultants use “best professional judgment” and their decisions have regulatory status, i.e. are dispositive – they make the “diagnosis”.

This DEP recommendation is found in Appendix G. Appendices G and H address so called “background” levels in buildings caused (allegedly) by various consumer products and building materials.

If you read those sections, you see that DEP has provided a cookbook of how to blame “background” sources (household products) for the problems instead of groundwater pollution.

DEP also does a scientific literature review so that the consultants and polluters have “sound science” on their side.

Providing a scientific basis to blame other sources of pollution for the problem (i.e. household products, not groundwater pollution) and then allowing a private consultant to make  his own “best professional judgment” with no government oversight is incredibly stupid.

And no different than the Surgeon General writing a report for the tobacco companies on how to blame lung cancer on other stuff instead of cigarettes.

Highlands Council Exempts Gas Pipeline Through the Heart of the Highlands

[Update: 2/26/12 – Looks like my initial assessment has some merit. A kind reader just sent me a note with a link to a Pennsylvania case where an Administrative Law Judge found that a gas pipeline was NOT a “public utility” as defined in statute. Regardless, the Highlands Council and the DEP, as regulatory agencies, lack the statutory authority to render this Legislative and/or quasi-judicial final determination:

In a 96-page decision, Judge Colwell blew several holes in the application. A midstream pipeline company, which delivers gas from the well head to the interstate pipeline, doesn’t meet the statutory definition of a public utility.

“A gathering line is specifically designed to serve producers … to transport gas to a designated transmission line and ultimately to a refinement facility. This is a business transaction,” she wrote. “Note the sharp contrast with the actions of a traditional gas utility … which permits property owners connect and consume gas in operating their heating and cooking appliances.”

NJSA 48:10-1 DOES regulate natural gas pipelines as public utility

[Update: Correction – portions of this post and my testimony were in error. I was thinking about “public utility” in terms of economic regulation of Tennessee’s profits.

So I just read the statute -and learned that natural gas pipelines are defined and regulated as public utilities, despite the lack of economic regulation of rate of return.]

I made my first observation of the new Christie Highlands Council last night (Tom Johnson at NJ Spotlight did a nice job covering the hearing – read his report here)

After seeing the environmental destruction wreaked by the Tennessee Gas Pipeline, and having fought their sweetheart DEP easement lease deals, I felt obligated to go.

I was under no illusions about the new Christie Highlands Council, particularly after getting personally involved in the nasty battle over the Chairmen Riley’s Senate confirmation. But it was far worse than I expected.

Director Eileen Swan seemed to be reading from a presentation prepared by Tennessee gas company. She presented photos that I believe were taken by Tennessee.

Her presentation of Tennessee’s proposed project and her various judgements about Tennessee’s performance were so consistently skewed, it was as if she were a Company lawyer.

Chairman Riley repeatedly interrupted and challenged members of the public who were testifying against the project.

Remarkably, Riley even scolded fellow Council members who asked tough questions, ruling that their inquiries were “inappropriate”.

Riley – I believe illegally – limited the scope of the public testimony to just 3 minor so called “new” issues. Riley repeatedly interrupted testimony to enforce that arbitrary and illegal restriction.

Riley interrupted my testimony – less than 10 seconds into it – as I attempted to introduce myself to the Council and provide expert qualifications in terms of having served as DEP staff to Governor McGreevey’s Highlands Task Force and as the sole DEP representative on the team that drafted Senator Smith’s bill, SB #1, which became the Highlands Act.

Knowing that the deal was already in and that the Council was going to approve the project, I raised 3 issues in my testimony:

1) Highlighting the disaster at Lake Lookover, I advised the Council to amend the Resolution to require that mitigation and project construction comply with DEP numeric surface water quality standards, and policies (NJAC 7:9B), especially the numeric standards for total dissolved solids (TDS) and total suspended solids (TSS). Those are enforceable regulatory standards.

The turbidity methodology and compliance values that they were using did not appear to comply with DEP TSS, TDS, or turbidity standards.

2) The Council should amend the Resolution to demand that DEP assess full market value for all Tennessee easement leases across state lands, in accordance with the methodology outlined in pending legislation (S826) recently released by the Senate Environment Committee.

Market value must be based on the economic value of the use of the easement, not the underlying assessed property value for development.

The benchmark market value would consider the PSEG/PPL mitigation value for the Delaware Water Gap S-R power line, $13 per square foot. At a minimum, DEP must recover at least what the NJ Turnpike Authority valued at $1.25 per square foot for fiber optic cables in the Turnpike ROW.

DEP’s policy of just $0.15 – no typo – 15 CENTS – per square foot is totally unacceptable.

3) Exemption #1 in Section 30 of the Highlands Act is limited to public utilities and the action by a public utility.

Specifically, in accordance with Section 30 of the Highlands Act, the following activity is exempt from the review requirements of the Highlands Act:

“(11) the route maintenance and operations, rehabilitation, preservation, reconstruction, repair, or upgrade of public utility lines, rights of way, or systems, by a public utility, provided that the activity is consistent with the goals and purposes of this act;” (emphasis mine)

The Tennessse Gas Company is a private for profit corporation, not a public utility.

As such, the exemption does not apply and Tennessee is ineligible for the exemption.

After public testimony, during the Council’s deliberations, Council member Kurt Alsteed, allegedly a farmer, summarized the arguments in favor of approving the project and granting the exemption as if he were reading from a Tennessee legal brief.

Several other Council members supported the project and spoke as if they were Tennessee shareholders, not public officials required to enforce the Highlands Act and serve as public stewards of public resources.

It was truly shameful.

[Update: and the shameful right wingnuttery low point, was when Councilman Walton supported the pipeline on the basis of preventing terrorism! You know, because all those Muslims that have control of oil we import are “looking to kill us” – I think the latter paraphrase about seeking to kill us is a literal verbatim quote. The first part about Muslims is my snark – but it was just below the surface of Walton’s low comments.

The Highlands Council will hear the Tennessee Gas Pipeline case today at 4 pm.

So, I thought I’d re-post photos of last August’s  Lake Lookover and Vernon disasters (hit those links for more photos).

The agenda includes a Resolution to DEP on TGP,  Council staff responses to public comments and an updated project review memo.

Try to be there if you can.

And power lines are pretty bad too!

I’ve been disturbed by seeing deer baiting (by mainly bowhunters) in the woods behind my house for years now (See above).

I think it is a grossly lazy, unskilled, unsportsmanlike, and unethical practice – especially for hunting with firearms.

I mean, how hard is it to sit on your ass in that deer stand and ambush a deer you baited?

Worse, baiting has negative impacts on the deer herd and efforts to manage it:

When deer congregate together, often repeatedly at a bait pile, they come into close contact. They spread germs and diseases among each other as they lick, touch noses, sneeze, breath, urinate and defecate near the bait pile [source: Sperling]. Once these disease start to spread they can be hard — and extremely expensive — to contain.

Baiting can also have lasting impacts on the animal, causing changes in the feeding patterns, reproduction habits, overall behavior and migration [source: Sperling]. If they know there’s a bait pile in your back yard, they stop hunting for it themselves and become dependant upon you. And often, the bait doesn’t meet the nutritional value that deer need. If the bait is too high in carbohydrates or starches, as is often the case, it can cause damage to the digestion process, sometimes resulting in death.

But what really set me off was my recent experience in Baldpate Mountain in Mercer County, where the public Park is closed for hunting.

I was not aware that hunters baited deer there – especially because the whole rationale is to reduce deer herds in the park and minimize damaging deer browse. Of course, baiting lures deer into the park.

But, getting back to what really set me off – as bad as baiting is – was learning that in addition to closing the parks for hunters, Mercer County allows hunters TO USE ATV’s to bait deer!

According to Jenn Rogers, Mercer County Parks Dept.

Currently, some hunters are allowed ATVs for the purpose of retrieving deer and baiting.

NJ DEP apparently supports baiting too, and isn’t reluctant or ashamed to issue press releases touting that:

And all that, my friends, is truly disgusting and should end immediately.

Joint me in an effort to reform the Mercer County deer management plan at Baldpate.

The next meeting is Wednesday February 29, 2012 at the Mercer County Wildlife Center on Rt. 29. in Hopewell.

The Superfund Sites Next Door that You Never Heard Of

[Update #2 – 2/17/12 – As I said:

“EPA has yet to explain why it decided not to list sites that otherwise qualified for Superfund and why it deferred cleanup oversight to what its own Inspector General found was a failed cleanup program,” Wolfe added, pointing to the DuPont contamination of Pompton Lakes–which is still suffering from the worst vapor intrusion in the nation–as Exhibit A for immediate federal intervention. “The people of New Jersey have a right to know how these critical decisions are made and whether EPA or the Governor’s Office are delaying or derailing Superfund listing.”

Congressman Frank Pallone agrees (see: Abury Park Press Pallone asks EPA to explain 27 sites left off superfund list.

Read Pallone’s letter to EPA Administrator Lisa Jackson (hit this link)

Update: 2/16/12: This story got good newsplay.

I was disappointed that the Bergen Record (who covered the original EPA lawsuit story on page one: “EPA sued for release of toxic rankings“; the Star Ledger (who also covered the lawsuit story prominently” NJ environmental group asks feds to release rankings of toxic sites“); and the Trenton Times (who editorialized in support on 10/28/11: EPA should release information on contaminated sites all missed it.

News coverage rundown:

• Tom Johnson of NJ Spotlight wrote a good story, which also ran in the Philadelphia Inquirer (see: NJ’s Overlooked Superfund sites
• Gannett wrote a national story, out of DC office, while NJ Gannett outlets ran the Morris Daily Record version: Group: 4 Morris sites left of Superfund list
• The Fair Lawn Patch wrote: Toxic Site in Fair Lawn Left Uncontrolled By EPA – end update]

From our good friends at PEER.

EPA documents obtained by a PEER lawsuit show that EPA is sitting on at least 27 NJ sites that qualify for Superfund based on risks to human health and the environment, but for some reason is not listing them.

Failure to list these sites deprives NJ communities of information, resources, community involvement in cleanup decisions, and the priority attention of EPA and Congress that Superfund National Priorities Listing confers.

We had to sue EPA to obtain these documents, which are marked “confidential”, so EPA does not want this information in the public arena.

EPA may be intentionally seeking to minimize the Superfund NPL list due to opposition by powerful chemical companies responsible for cleanups.

Those lobbyists have blocked re-authorization of the Superfund tax, which funds cleanup at orphan Superfund sites where “responsible parties” are not available.

Or, EPA may be limiting Superfund listing for budget reasons – Obama’s proposed FY 2013 budget includes $755 million for Superfund.

Or EPA may be deferring to NJ Governors, who might oppose the 10% State cost share requirements for federal Superfund site cleanup costs.

But why would EPA defer cleanups to the State DEP program after EPA’s own Inspector General found NJ DEP the worst in the country, forcing EPA to revoke DEP lead at several Superfund sites?

Worse, since then, NJ’s cleanup program has been privatized, further limiting transparency, community involvement, and accountability.

NJ received $160 million in federal stimulus (ARAR) Act funds last year for cleanup of 8 NJ Superfund sites, and well over a billion in total Superfund monies.

Regardless, politics and economics should not over-ride Superfund’s risk based framework of protecting human health and the environment.

EPA has some explaining to do! Read all about it and review the lawsuit, HRS scoring sheets for these 27 sites, and other documents, from PEER:

Twenty Seven New Jersey Superfund-Eligible Sites Left Off List

EPA Still Reviewing Status of Unknown Number of Garden State Toxic Hotspots

Washington, DC  – New Jersey already has the most Superfund sites of any state but could have many more according to U.S. Environmental Protection Agency documents obtained through a lawsuit by Public Employees for Environmental Responsibility (PEER).  More than a score of sites in New Jersey pose risks equal to or greater than Superfund-listed sites, yet these uncontrolled sites were not added to the Superfund National Priority List for clean-up by EPA.

PEER sued EPA in late October under the federal Freedom of Information Act after the agency failed to turn over the Superfund Hazard Rankings for non-listed sites in New Jersey.  The Hazard Ranking System (HRS) numerically scores risks to public health and the environment from exposure to contaminated groundwater, surface water, soil and air.

Sites that score above 28.5 points on the HRS qualify for Superfund NPL listing.  Documents surrendered by EPA reveal 27 sites that score greater than 28.5, with scores ranging from 30 to 70 on the HRS scale.  Passed-over sites include Pompton Lakes, Fair Lawn, Plainfield, Gloucester, Berlin and Union Township, stretching across 11 counties.  Scores reflect releases of high levels of chlorinated solvents and other toxic chemicals to soil and groundwater with the following major impacts:

• Off-site pollution of residential and municipal drinking water;
• Seepage of toxic vapors into nearby residential buildings; and
• Contamination of adjacent wetlands, streams and lakes.

“Priority for protecting communities is supposed to be based on risk, but several high-risk communities in our state got swept under the rug by EPA,” stated New Jersey PEER Director Bill Wolfe.  “All of these Hazardous Ranking System scores should be published so that there are apples-to-apples comparisons to help prioritize sites for clean-up and target responsible parties.”

EPA’s decision to bypass these sites leaves the sites under state auspices but the New Jersey Department of Environmental Protection (DEP) has a history of prolonged but ineffective cleanups. After the EPA Inspector General looked at a 20-year history of state-supervised clean-ups, it concluded DEP had the worst track record in the country at toxic remediation and recommended federal takeover.

This list of passed-over toxic sites in New Jersey may grow substantially, however.  PEER is still litigating to force EPA to disclose the HRS scored for other sites where its National Priority listing decision is still pending.  Those decisions could more than double the list of highly toxic sites without federal intervention. New Jersey already leads the nation with most Superfund sites (144).

“EPA has yet to explain why it decided not to list sites that otherwise qualified for Superfund and why it deferred cleanup oversight to what its own Inspector General found was a failed cleanup program,” Wolfe added, pointing to the DuPont contamination of Pompton Lakes–which is still suffering from the worst vapor intrusion in the nation–as Exhibit A for immediate federal intervention. “The people of New Jersey have a right to know how these critical decisions are made and whether EPA or the Governor’s Office are delaying or derailing Superfund listing”

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See the HRS scores for Superfund-eligible bypassed sites

View current New Jersey Superfund sites

Look at the PEER lawsuit

Revisit the horror story of Pompton Lakes

Examine the pattern of languishing state clean-ups

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