WolfeNotes.com

Do You Live in A DEP Mapped “Threat Radius”?

A regulatory dismantling is quietly happening in much the same way that the ALEC model bills have been the vehicle at the state level to drive a corporate right wing agenda.

Follow me and see how.

Jeff Pillets, investigative reporter for the Bergen Record, hit a grand slam yesterday with an outrageous story about lax DEP oversight and enforcement of toxic site cleanup laws (see: Ex-Convict in line for cleanup grant in Mahwah

He follows up today with the predictable expressions of local outrage, a song I’ve heard far too often across the state (see: Mahwah demands N.J. address oil spill

We again read that DEP knew for 12 years that toxic leaks and groundwater pollution from a gas station threatened municipal well fields in Mahwah, the source of the town’s drinking water.

After doing nothing to cleanup that pollution, the contaminated groundwater plume spread and worsened. A “crisis” suddenly emerged – who could have predicted that? [for my discerning readers, that’s snark!]

And the denouement, in what could be the ultimate example of the collapse of government, the State EDA ended up approving a $335,000 grant to an ex-convict, the gas station owner who caused the pollution!

(do we need “stop and frisk” for polluters?)

You can’t make this stuff up – It is hard to imagine how it could get any worse – but, there is no need for imagination, it actually is worse than all that.

The problem is not just one site falling through the cracks and one anomalous grant to an ex-con – the problems are systemic and the intentional result  of DEP policy and a bipartisan consensus in Trenton.

Let me provide only the most recent example.

Here’s the story (see press release and links below for analysis and all the relevant DEP documents – including “threat radius” map):

DEP is outsourcing (and in this case privatizing) science through the DEP Science Advisory Board (SAB).

DEP used to lead the country in regulatory science, particularly due to the fact that NJ led the country in toxic sites and old polluting landfills. In the 1970’s and 1980’s, NJ led the way in groundwater pollution science, toxicology, and risk assessment –

NJ’s laws, programs, and science became models and the basis of other state laws and national programs at EPA, including the Superfund law, sponsored by then south jersey Congressman and future NJ Gov. Jim Florio.

For decades, DEP science had great influence on other State programs and DEP scientists participated as members of various EPA advisory groups, so DEP scientists  influenced the national picture as well.

Since the Whitman Administration (1994-2002) DEP science was underfunded, staffing slashed, and the former Division of Science has been marginalized and downsized to an Office (as Grover Norquist says, “small enough to drown in the bathtub”).

But, now – under Gov. Christie – NJ is becoming the model in a sophisticated strategy of regulatory and scientific rollback at the State level (NJ Gov. Christie has had influence on other Republican Gov.’s in Maine, Florida, Ohio, etc –

This is quietly happening in much the same way that the ALEC model bills have been the vehicle at the state level to drive a corporate right wing agenda.

In this specific case, the scandal is twofold:

1) Gross conflicts of interest – lack of scientific integrity. Dupont writing their own cleanup science.

The scientific report of the SAB was written by 4 “scientists” – 3 are private consultants to polluters and the 4th is a corporate strategist at Dupont (Dr. Gannon). The majority of the Report has little to do with science and mostly focuses on DEP policy and regulations.

Dr. Gannon is not a practicing scientist, his scientific training (in microbiology) has nothing to do with the report (groundwater pollution science and risk assessment); and Dupont has gross economic, legal and scientific conflicts of interest in the subject matter of the scientific report.

This could never happen at the federal level, where there are restrictions and controls over ethics, scientific conflict of interest, and transparency under a law known as “FACA” – the Federal Advisory Committee Act.

2) Industry Sponsored Rollback of protections for drinking water – groundwater pollution from toxic sites

The SAB Report itself is an all out attack on 35 years of science and NJ DEP regulatory policy regarding protection of groundwater and drinking water supplies from toxic pollution.

DEP regulations classify most groundwater as “potable” (drinking water – Class IIA). The groundwater standards are based on drinking water standards and often drive cleanup and increase cleanup costs.

This makes good sense, because about 1/2 of state residents rely on groundwater (private residential wells or municipal or private water systems that rely on groundwater wells, as in the Mahwah case you just read about).

DEP just quietly posted data on their Office of Science website under the Private Well Testing Act (PWTA) that shows 12%+ (1 in  eight) residential wells are contaminated and unsafe (see: State not alarmed by levels of tainted well water).

That well pollution could be the result of the fact that NJ has over 6,000 groundwater pollution sites and 15,000 more sites with soil contamination.

[clarification: The drinking water wells I am talking about are two different types: community municipal systems (public or privately owned) and residential wells. Many community wells and residential have been poisoned and shut down or required installation of treatment systems due to industrial toxic site pollution. The majority of residential wells tested under the PWTA fail to meet radiological and arsenic standards due to naturally occurring compounds in local rock formations. Regardless, the public health risk is the same regardless of source of the pollution. Similarly, the underlying DEP geological science, pollution science, toxicology and risk assessment functions and programs that are under attack are applied to both natural and man made pollution.]

(Most of this groundwater pollution is not being cleaned up, under an outrageous loophole known as a “Classsification Exception Area” (CEA), but that’s another story.)

The SAB Report reflects the polluters’  goal to rollback current DEP technical requirements and standards, to prevent them from being incorporated in the new privatized “LSRP” program – Licensed Site Remediation Professionals.

In this case, the Report attacks – and provides a justification for DEP Comissioner Martin to kill – what is known as the “impact to groundwater” (IGW) method and standard.

The IGW address cases where soil contamination interacts with groundwater and typically drives cleanups and greatly increases cleanup costs.

Polluters say it is “too conservative” and unduly burdensome. Here are the details, just released last week (no one picked it up):

CORPORATE SHADOW OVER JERSEY’S TAINTED GROUNDWATER DARKENS — Science “Advisors” Push Dramatic Relaxation of Groundwater Cleanup Standards

Trenton — A newly released report recommends abandoning New Jersey’s current standards for protecting groundwater from chemical pollution.  The report is from the state’s Science Advisory Board and was written by four scientists with corporate ties–including one from DuPont, which stands to directly benefit from loosening rules governing toxic waste sites and leaking underground tanks and pipelines, according to Public Employees for Environmental Responsibility (PEER).

Hit this link for complete release and links to documents:

And in case you need me to draw you a picture (source: NJDEP):

"Toxic Threat radius" -mapped by NJDEP

Extension of Zombie Permits A Form of Consumer & Investor Fraud

Prolonged Day of Reckoning Impedes Market Correction

Today (6/25/12) both Houses of the Legislature are scheduled to vote on – and likely again pass – the Permit Extension Act. (S743 [3R]). The bill would extend the 2008 extension, reaching back to permits issued 10 years ago.

And of course, Governor Christie – our “regulatory relief” “job killing red tape” sloganeer in Chief – will sign it into law (and regulations are a “hidden tax” don’tcha know!)

The debate on this bill has been as bankrupt and corrupt as the real estate and banking interests backing it.

The development community and business groups strongly support what they view as an economic development measure:

The poor economic climate has severely affected the state’s banking, real estate and construction sectors. Businesses cannot easily obtain financing under existing economic conditions and in some cases are forced to delay scheduled projects that have already been approved by a government entity and granted permits. Such delays result in some of these permits expiring before the projects are completed. Given that the permit application process is extremely time consuming and expensive, it makes sense to allow additional time for stalled projects to be completed.

(the Chamber of Commerce doesn’t want to tell you why they can’t get financing – but it has nothing to do with permits and DEP regulations, and a lot to do with lack of demand and over-supply).

Similarly viewing the bill as likely to spur development, environmentalists strongly oppose the bill – here is their Alert:

Last week,  the bill was amended on the Senate floor to delete the Highlands and rural and environmentally sensitive areas designated under the State Plan. So legislators are being told that the environmental compromise has been made.

But both sides in the debate share the false premise that the bill will spur otherwise dead development projects to proceed.

They both completely miss the real issues.

The bill will not promote real economic development or harm the environment.

The bill continues the real estate and financing fraud that caused the economic collapse.

The real objective and impact of the bill are hidden in plain sight, in the legislative findings – read the bill!

Amazingly, confusing cause with effect, the bill actually implies that the expiration of permits is the cause of the bursting of the real estate bubble  (i.e. losses are tied to “as permits expire”).  Based on that incorrect assertion – permit extension would perpetuate the fraud at the core of the collapse.  

Here it is – hidden in plain sight – yet these false assertions and fraudulent objectives have gotten absolutely no attention in the debate on the bill:

i. Financial institutions that lent money to property owners, builders, and developers are experiencing erosion of collateral and depreciation of their assets as permits and approvals expire, and the extension of these permits and approvals is necessary to maintain the value of the collateral and the solvency of financial institutions throughout the State.

j. Due to the current inability of builders and their purchasers to obtain financing, under existing economic conditions, more and more once-approved permits are expiring or lapsing and, as these approvals lapse, lenders must re-appraise and thereafter substantially lower real estate valuations established in conjunction with approved projects, thereby requiring the reclassification of  numerous loans which, in turn, affects the stability of the banking system and reduces the funds available for future lending, thus creating more severe restrictions on credit and leading to a vicious cycle of default.

Erosion of collateral and depreciation of assets is a result of the bursting of the real estate bubble, not the expiration of permits. That bubble was created by massive fraud.

If permits for projects that are not financially viable – that lack market demand or financing – are extended, that action merely delays the day of reckoning, what economists call “market correction”.

Those “assets” SHOULD depreciate. They SHOULD be revalued. The loans SHOULD be reclassified.

As I previously wrote and testified back in March – failed projects are toxic assets that should be allowed to die, not receive a “regulatory bailout” provided by permit extensions:

By extending approvals for toxic assets (failed real estate projects for which there is no market demand and no financial viability) the bill would perpetuates a systemic failure in accountability, governance, and regulatory and market failures.

Extension of these permits for non-viable projects sends consumers and investors false signals, and thus becomes a form of the same fraud that caused the real estate bubble to form and the economic collapse when that bubble burst.

Extension of permits for non-viable projects maintains false and grossly exaggerated asset values and real estate appraisals. 

This distorts the market and banking and finance and thus becomes another form of fraud. Failed assets need to be written off and uneconomic projects terminated.

On top of the fraud, the bill fails to address the underlying economic issues that are causing the current extended recession cum depression, and jobless recovery.

More strategies to promote false real estate values and sham finance will not create effective demand required to spur investment in real projects and create a jobs based economic recovery.

We’ll let you know how the vote goes. Stay tuned.

Dems Take a Pass on Stronger Corporate Accountablity Measures

[Update – I just received a letter from Senator Weinberg stating that the bill will be held until this fall and requesting constructive input from all interested stakeholders by August 15, 2012 – we’ll keep you posted. ]

Important End Note]

It is amazing that President Obama can disclose White House visitor logs, but a Democratic Legislature will not force Governor Christie’s DEP Commissioner to disclose his meetings with chemical industry lobbyists.

Just amazing.  ~~~~ Bill Wolfe, Director, NJ PEER

I am just disgusted right now.

I wrote last week about proposed legislation (S1452) that purportedly would reform and update the Open Public Records Act (OPRA) to provide more public access and strengthen transparency  – at least according to the sponsors (see: Does The Public’s Right-To-Know Include Meetings Between Corporate Lobbyist And DEP?

Knowing how to play the Trenton inside legislative game, as a followup to that press conference, having gotten Senator Weinberg’s conceptual support and a request by her staff to suggest amendments, I contacted Weinberg’s district office and legislative aid. I also reached out to Senate Majority Office and co-sponsors and other progressive Dems I have worked with.

A Committee Substitute bill was released yesterday by the Senate Budget and Appropriations Committee without recommendation and moves to the Senate. The lack of recommendation suggests that the bill is vulnerable, despite Senate President Sweeney’s support.

Well, I just read the substitute and will briefly note why I am so disgusted.

First of all, the bill includes a new and broader definition of “deliberative material” that is exempted from OPRA. This makes it easier for State agencies – like DEP – to keep embarrassing public information secret. That reduces transparency, not increases it.

Second, the bill amends the definition of “government record” to include a new provision targeted at RGGI allowances – RGGI is the Regional Greenhouse Gas Initiative.

RGGI is no longer operating in NJ, because Governor Christie has pulled NJ out of the program.

RGGI has come under attack by global warming denying, government bashing, right wingnuts, in part on the basis that RGGI records are not subject to OPRA.

I have no problem with making RGGI records being subject to OPRA – that is a good idea.

But what I do have a problem with is what this amendment reveals about who has influence and who so called progressive Democratic Senators are listening to.

I am disgusted by the fact that government bashing libertarians and global warming denying  Koch Brothers funded right wingnuts like Steve Lonegan at Americans for Prosperity have greater influence on NJ’s progressive democrats than those like myself who seek corporate accountability.

Steve Lonegan and company got their RGGI amendments – but I did not get the corporate secrecy loophole amendments I requested.

As I just wrote to Senators Weinberg, Greenstein, and Buono:

It is amazing that President Obama can disclose White House visitor logs, but a Democratic Legislature will not force Governor Christie’s DEP Commissioner to disclose his meetings with chemical industry lobbyists.

Just amazing.

For the wonks out there, here is the background information and analysis.

DEP has used deliberative, executive, and privacy exemptions to deny meeting logs and calendars.

“Disclosure of the Commissioner’s schedule and the schedules of Department staff also implicates privacy interests of the people with whom public officials meet. See Smith, supra, citing Gannett N.J. Partners, LP v. County of Middlesex, 379 N.J. Super. 205 (2005) and North Jersey Newspapers Company v. Passaic County Board of Freeholders, 127 N.J. 9, 16-18 (1992)(the requested schedule of the Commissioner is exempt from public access on the basis that it implicates privacy interests of persons who meet with public officials and is protected by executive privilege).”

For Full DEP denial decision, see this for OPRA:

http://www.peer.org/docs/nj/1_21_10_New_Jersey_Register_notice_rejecting_PEER_transparency_petition.pdf

See also:

1. NEW JERSEY DOES ITS ENVIRONMENTAL BUSINESS BEHIND CLOSED DOORS— State Claims “Executive Privilege” to Shield Meeting Logs; Petition Filed

2. WILL NEW JERSEY OPEN UP ENVIRONMENTAL DECISION-MAKING? — Corzine Denial of DEP Transparency Rules Creates Opportunity for Christie

3. COURT ORDERS RELEASE OF NEW JERSEY SCIENCE BOARD NOMINEES — Successful Open Records Suit to Reveal Industry Sponsorship of Science Board Picks

[End Note: Let me just give you an example of how lame these so called bold reforms are.

At the Weinberg/Sweeney press conference last week, open government advocates spoke in favor of the bill and praised Weinberg’s leadership.

Attorney for North Jersey media speaks at press conference in support of Weinberg OPRA bill

A lawyer representing North Jersey Media (Bergen Record et al) spoke. She used documents as an example of her bold efforts to use OPRA to hold government accountable and explain why the Weinberg bill was such a strong reform measure and would enhance transparency.

As an example, she waved a document with multiple redactions. Oh, I thought, here comes a juicy story of government secrecy! Those redactions must be hiding scandal!

Sure enough, this lawyer bragged about her diligent efforts –  “four phone calls to the Governor’s Office” to get to the bottom of these secret redactions.

Remarkably, jus like my experience, State government agency redacted and denied information on the basis that there were “privacy” interests at stake. Oh, this is too good, I thought!

Well, it turns out that the redactions were merely the office phone numbers of each state agency OPRA contact person!

Wow!

With media watchdog lawyers like that, we know we’re in good hands! (snark).

In the meantime, I’m trying to get records that show how the chemical industry is killing air and water pollution standards for toxic chemicals.

How polluters are privately negotiating deals behind closed DEP doors that eliminate millions of dollars in enforcement fines.

No wonder Senate Dems took a pass – they do those same DEP meetings and get support from the same corporate lobbyists.

And even their key staff (Senate Secretary) are hostile to open government.

2006 DEP Order Enforced Air Pollution Control Requirements

Plunging Natural Gas Prices Ease Impact of Previously Mandated Conversion

Hypocrisy in spades

[Update: 6/22/12 – As expected, the media missed the story and basically just printed the sham DEP press release.

Here’s just one example, and this was the best coverage – compare my praise printed in this story with the scathing criticism of the blog:  B.L. England power plant conversion to dramatically reduce emissions over four years

Environmental advocates also hailed the announcement as a positive development for the health of nearby residents.

“This is good news for air quality,” said Bill Wolfe,CQ director of Public Employees for Environmental Responsibility. “I don’t think there’s any dispute over that.”

Wolfe did note that previous plans to reduce pollution from B.L. England had later been amended to extend deadlines for compliance, and this latest agreement does that again. – end]

[Important endnote]

The Christie Administration’s DEP issued a highly misleading press release today that takes credit for the result of a 2006 DEP enforcement action and air pollution control rules adopted in 2004.

DEP Commissioner Bob Martin issued a press release with this screaming headline:

CHRISTIE ADMINISTRATION ANNOUNCES AGREEMENT TO DRASTICALLY REDUCE POLLUTION FROM CAPE MAY COUNTY POWER PLANT

The only thing drastic about the move is the spin.

This much is true – the plant is repowering and shutting down a coal fired unit. That is a good move for south jersey air quality:

RC Cape May Holdings LLC will shut down one coal-burning unit at B.L. England under the terms of an Administrative Consent Order with the DEP.  The company will repower a second coal-burning unit to a state-of-the-art combined-cycle natural gas turbine and will re-fuel a third, oil-burning unit with natural gas. The power plant is a prominent feature on Great Egg Harbor in Upper Township.

But the Christie Administration and Commissioner Martin had virtually nothing to do with the deal.

[Note: of course, the better move for air quality and global warming would be to shut the plant down.]

If you read the fine print of paragraph #3 of the Administrative Consent Order, you will note that the shut down and conversion of the coal and oil units was the result of a 2006 DEP enforcement action:

In light of the Purchase and Sale agreement, the Department, ACEC, Conectiv, Pepco Holdings, Inc, and RC Cape May on October 31, 2006 entered into an Amendment to the January 24, 2006 ACO pursuant to which RC Cape May agreed, among other things, to either Repower or meet the Performance Standards of the Januury 24, 2006 ACO by the deadlines set forth therein for each unit. (boldface supplied)

I hope the press doesn’t fall for it – but suspect they will.

There is no reason for that, because the facts are presented in plain english in accessible documents (ACO) and the 2006 enforcement got widespread media coverage at the time.

In fact, the 2006 enforcement action grew out of an earlier action during the McGreevey Administration. That regulation sets the key “Performance Standard” referred to in the 2006 ACO and current ACO (see above).

In 2003, DEP proposed strict mercury emissions air pollution regulations that drove this 2012 current conversion:

TRENTON — New Jersey Department of Environmental Protection (DEP) Commissioner Bradley M. Campbell today announced the proposal of new rules that would reduce mercury emissions from power plants, iron and steel melters, and municipal solid waste incinerators. These rules will help to reduce mercury contamination in water and fish that poses a serious public health risk for New Jersey’s communities.

“New Jersey’s largest sources of mercury air pollution must use today’s technology wherever possible to protect our children and families from the harm that exposure to mercury causes,” said Commissioner Campbell. “These rules will reduce annual emissions of mercury by up to 1,500 pounds statewide.”

DEP’s proposed regulations call for up to a 90 percent reduction of mercury emissions from the state’s 10 coal-fired boilers in power plants by 2007. The rules allow for some flexibility, giving plants the option of meeting the standards by 2012 if they also make major reductions in their emissions of sulfur dioxide, nitrogen oxides, and fine particulates.

But, not many news stories get any historical perspective.

The press release is highly misleading not only because Christie/Martin DEP had little to do with the deal, but because Gov. Christie is anti-regulatory (e.g “job killing red tape” “regulatory relief”) and is slashing DEP enforcement (e.g. see this June 6 APP editorial: “Don’t Ease Up on Polluters“).

Christie and Martin are strongly opposed to exactly the kind of strict State regulations and enforcement that resulted in the repowering and coal closure they now celebrate and take credit for.

Hypocrisy in spades.

I’ve reached out to reporters. We’ll see.

[Important Note: to add insult to injury, the Martin ACO: 1) actually relaxes prior compliance deadlines, 2) sets lax “interim” NOX emission limits, and 3) allows FERC to over-ride if they find the shutdown would raise grid reliability issues. That surrenders state environmental and public health protections to a federal energy agency – really bad move.