WolfeNotes.com

All Private Sector SubComitttee Used by Commissioner Martin

A DEP Science Advisory Board (SAB) Report to the Commissioner was just posted on DEP’s website – it is a perfect example of exactly the problems we have predicted and regularly written about here.

I)  Biased Charge

First of all, the “charge” to the SAB (i.e. the question posed) was from “customer friendly” “regulatory relief” driven Commissioner Martin, so of course it was framed in a way to attack an important existing DEP regulatory protection long opposed by industry due to the high cost of compliance with it.

In this case, it was the “impact to groundwater” standard (IGW), which is a technical translator of how soil contamination impacts groundwater. The IGW standard protects groundwater – which is classified as drinking water – from  toxic pollution and often drives the extent – and costs – of cleanup.

II)  Conflicts of Interest – Lack of Scientific Integrity

Second, the SAB subcommittee that wrote the Report was composed exclusively of private sector “scientists”, including a corporate strategist –  not a practicing scientist – from Dupont. Dupont has millions of dollars at stake in the IGW debate, and therefore gross conflicts of interest that should have precluded any involvement with the issue on the SAB report preparation or deliberation.

III)  Improper Role in Regulatory Policy

Third, the SAB strayed far outside the scope of its mission, which was established by former DEP Commissioner Jackson’s Administrative Order. Under that Jackson Order, the SAB is prohibited from considering regulatory and policy issues, and must focus exclusively on scientific issues.

The majority of this SAB Report focuses on regulatory policy and even DEP administrative and program management issues! The SAB totally misconstrued its role and grossly violated their mission and charter under the Jackson Order that created the SAB.

Hit the links below to read the Report and see a summary by our friends at PEER:

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 but was written by four scientists, all 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).

Approximately half of New Jersey residents depend on groundwater for their drinking water.  The state Department of Environmental Protection (DEP) has identified more than 6,000 polluted groundwater sites, forcing closure of hundreds of wells across the state.   Polluted groundwater can also migrate under buildings, causing “vapor intrusion” from volatile chemicals that poison building inhabitants.

The Science Advisory Board consists of outside scientists picked by DEP.  This report attacks the “impact to groundwater” standard (IGW) and recommends replacing it with a more “flexible” system allowing site-specific exceptions.  While dated October 20, 2011, the report was not posted until last week. If its recommendations are adopted by DEP, more than 30 years of public policy would be reversed by –

• Repealing the requirement that all groundwater should be considered and regulated as potable public water supply (unless someone submits a petition to reclassify a local aquifer to a less protective designation).   Instead, groundwater would be protected only on an as-needed basis;

• Stripping the DEP role of defining risk assessment methodologies and allow private consultants to define and regulate risk on a case by case basis; and

• Jettisoning the precautionary assumption underlying the IGW that legacy soil contamination will mobilize to cause a future groundwater impacts.  This move would eliminate the need to clean up soils unless a direct relationship to groundwater is shown, thus relaxing cleanup requirements for many toxic waste sites.

“If you want to safely drink groundwater in New Jersey, you had better have a good lobbyist,” stated New Jersey PEER Director Bill Wolfe, noting that the Science Advisory Board subcommittee which drafted the report contained no academic or DEP scientists – all are from the private sector, including one who works for DuPont. “High polluting corporations have been trying to weaken groundwater standards and are on the verge of accomplishing this goal by getting permission to rewrite the science from within DEP itself.”

Under industry pressure, the Corzine administration downgraded the IGW from regulations to guidance.  The report recommends that it be removed from guidance and dropped altogether.  In addition to privatizing science, New Jersey has also privatized supervision over toxic waste cleanups.  If the new report is followed, corporate consultants would be free to decide how protective cleanups would be on a site-by-site basis.

“Under this new regime, public health becomes a negotiable commodity.   The only check on corporate irresponsibility would be other corporate consultants,” Wolfe concluded. 

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See Science Advisory Board subcommittee report on groundwater contamination

Look at the corporate affiliations of the SAB subcommittee

Learn more about groundwater protections

Trace privatization of DEP science

View one of many reasons for DuPont interest

Examine New Jersey’s privatized toxic cleanup system

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

Senator Weinberg and Senate President Sweeney discuss legislation to update Sunshine law and OPRA (6/14/12)

Corporate Closed Door Meetings At DEP Remain Secret Due TO OPRA “Privacy” Loophole

I happened upon a State House press conference yesterday by Senator Weinberg and Senate President Sweeney to discuss pending legislation to update the “Sunshine law”  (S1451 Open Government Meetings Act) and the Open Public Records Act (OPRA) (S1452) (read excellent NJ Spotlight coverage here).

So, as someone who files hundreds of OPRA requests at DEP and actively works on issues regarding transparency and open government at the state level, I sat in and listened. And I heard open government and public right to know activists heap praise on Senator Weinberg for her legislation.

I heard a lot about local government reforms – but nothing about state government and the important issues I work on, including a successful OPRA lawsuit and my efforts to reform OPRA practices by filing of  DEP rule making petitions.

Certainly, no one was talking bout THIS: Chemical Industry Lobbyists Met With DEP Commissioner Today

Hal Bozarth (L) "The Godfather of NJ Toxics" and Tony Russo of the NJ Chemistry Council sign in at DEP (10/1/09). They weren't there to talk about flag day!

Or any of this:

• COURT ORDERS RELEASE OF NEW JERSEY SCIENCE BOARD NOMINEES — Successful Open Records Suit to Reveal Industry Sponsorship of Science Board Picks
• WILL NEW JERSEY OPEN UP ENVIRONMENTAL DECISION-MAKING? — Corzine Denial of DEP Transparency Rules Creates Opportunity for Christie
• NEW JERSEY ENVIRONMENTAL LEADERS LAUNCH ETHICS REFORMS — Latest Corruption Scandals Spark Calls for Transparency & Whistleblower Measures
• NEW JERSEY SAYS SECRET MEETINGS KEY TO ENVIRONMENTAL POLICY — Petition for New Transparency Rules Rejected the Same Day Notice Is Published
• NEW JERSEY DOES ITS ENVIRONMENTAL BUSINESS BEHIND CLOSED DOORS— State Claims “Executive Privilege” to Shield Meeting Logs; Petition Filed
• NEW JERSEY POLLUTION AGENCY BUFFETED BY REVOLVING DOOR ISSUES— Corzine Urged to Impose Stricter Ethics Rules, Lobbying Transparency & Whistleblower Protection

I sat there with mounting frustration at what seemed to be exaggerated praise for minor reforms at the local level.

Far more important abuses of power at the state level were being ignored.

So, at the end, after the few softball questions from the State House press corps, I got to ask Senator Weinberg a tough two part question:

Senator: Do you agree that transparency and the public’s right to know you support at the local government level also should apply to Executive Branch State Departments?

And If so, does the public have a right to know about corporate lobbyists meetings with high level DEP officials?

This is particularly important given a recent media investigation (Todd Bates, APP) which revealed that DEP is meeting with polluters behind closed doors to negotiate enforcement fines. These meetings have resulted in millions of dollars of enforcement and compliance regulatory relief.

Senator Weinberg said of course she supported that – at which point I explained to her that DEP took the legal position that under OPRA, such information was exempt.

DEP’s legal rationale was that corporate lobbyists who met with DEP officials have a “reasonable expectation of privacy” and therefore meeting records are exempted under OPRA. Here is DEP’s “privacy” rationale:

“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).”

I spoke with Weinberg’s Senate staffer after the conference and asked him if Weinberg was interested in amendments to close the DEP loopholes I just mentioned.

He indicated support – so, let’s see if he will deliver.

The bills will be heard soon by the Senate Budget Committee, so there is an opportunity to get amendments before it goes to the floor.

We’ll keep you posted.

[Update: 6/18/12 – Chris Hedges’ column today nails what I was driving at in the conclusion to this post. So I will excerpt the key message:

The engine of all protest movements rests, finally, not in the hands of the protesters but the ruling class. If the ruling class responds rationally to the grievances and injustices that drive people into the streets, as it did during the New Deal, if it institutes jobs programs for the poor and the young, a prolongation of unemployment benefits (which hundreds of thousands of Americans have just lost), improved Medicare for all, infrastructure projects, a moratorium on foreclosures and bank repossessions, and a forgiveness of student debt, then a mass movement can be diluted. Under a rational ruling class, one that responds to the demands of the citizenry, the energy in the street can be channeled back into the mainstream. But once the system calcifies as a servant of the interests of the corporate elites, as has happened in the United States, formal political power thwarts justice rather than advances it. –

Hedges then cites Canadian philosopher John Ralston Saul to explain why the current political process is broken and suggest what progressives, environmentalists, and those on the left should be doing instead of working the inside game and on electoral politics:

And the formulation of ideas, which are always at first the purview of a small, marginalized minority, is one of the fundamental tasks of the movement. It is as important to think about how we will live and to begin to reconfigure our lives as it is to resist.   end update]

Hundreds of citizens and activists converged on the Capitol yesterday to ask lawmakers to ban fracking and restore Governor Christie’s diversion of hundreds of millions of dollars of clean energy funds (read the Star Ledger story here).

But this was a traditional Trenton lobbying effort, certainly not an occupation.

Christie’s budget this year proposes to divert another $275 million, for a 3 year total of over $600 million in Clean Energy funds that Gov. Christie has stolen to pay for his corporate tax cuts and subsidies (which the NY Times reports amount to over $1.57 billion thus far).

In prior years, Democratic lawmakers have rubber stamped those budgets.  This year, environmentalists again are demanding that the diversions be stopped and funding restored.

Let’s see if Democrats can make blocking the Governor’s proposed diversion of $275 million in Clean Energy Funds a priority in this year’s budget negotiations.

That will be far more difficult and have far greater positive impacts than passing last year’s symbolic ban on fracking wells (which Gov. Chrisitie CV’s to a temporary moratorium) and this year’s proposed legislation that would ban the in state treatment or disposal of fracking wastewater.

And aside from the politics of the budget, we don’t want readers to forget that the main risk of fracking to NJ comes from proposed Delaware River Basin Commission (DRBC) regulations.

If those regulations are adopted, that would lift the current moratorium and allow 18,000 – 20,000 wells to be drilled in the NY and Pennsylvania portions of the watershed. That drilling would pose not only chemical threats to NJ waters, but would consume BILLIONS of gallons of water.

As one wise environmentalists I spoke with asked me: with all that water going to gas drilling, what will we do during the next drought?

No one is talking about that issue either.

Democrats have run away from critically important legislation they introduced last session (see: A3314 and S2575). That legislation would establish a NJ policy at the DRBC with respect to fracking and prevent Gov. Christie from voting in favor of those regulations.

Christie represents NJ’s interest on the DRBC, and NJ’s vote could determine the outcome.

But, amidst all the praise for Democrats yesterday for enacting largely symbolic gestures, we heard none of that.

Aside from these legislative political stunts, as long as resources, organizing, and the good faith of citizen activists are limited to traditional Trenton inside political games and lobbying, we will continue to lose to corporate interests. I’ll close with a illustrative quote from a recent Chris Hedges column on Daniel Berrigan:

There is one place, Berrigan says, where those who care about justice need to be—in the streets. The folly of electoral politics, the colossal waste of energy invested in the charade of the Wisconsin recall, which once again funneled hopes and passion back into a dead political system and a bankrupt Democratic Party, the failure by large numbers of citizens to carry out mass acts of civil disobedience, will only ensure that we remain hostages to corporate power.

Occupy Trenton supports fracking ban, but environmentalists showed little support for Occupy.

Conflict With Delaware River Wild and Scenic Plan – Resolution Calls for DEP To Conduct Open Public Planning Process Before Any Tree Cuts

graceful sycamore hangs over the Delaware River at Bull's Island. DEP Plan would clearcut this tree.

Following the recommendation of the Environmental Commission, the Alexandria Township Committee tonight unanimously passed a Resolution formally opposing DEP’s proposed clear cut plan for Bull’s Island State Park.

Mayor Gabe Plumer who introduced the Resolution, just shook his head in amazement at some of the senseless things DEP does.

The Resolution highlights the ecological and recreational significance of the trees on the Island, especially in light of the Lower Delaware Wild and Scenic River Management Plan.

Alexandria Township is one of 12 NJ river towns in Warren, Hunterdon, and Mercer counties that are located in the Delaware Wild and Scenic Corridor who have endorsed the Delaware Wild and Scenic Management Plan.

The other NJ Delaware River towns include (south to north):

Hopewell, West Amwell, Lambertville, Stockton, Delaware, Kingwood, Frenchtown, Milford, Holland, Lopatcong, and Harmony.

We hope that Alexandria’s leadership paves the way for all municipalities and Counties along the river to oppose DEP’s clearcut plan, as public opposition mounts to DEP’s senseless “war on killer trees“.

DEP simply can not be allowed to make destructive unilateral decisions of this magnitude that so dramatically impact public lands and State parks with no public involvement or formal environmental review process.

The Resolution was forwarded to DEP Commissioner Bob Martin and the D&R Canal Commission, who would review any DEP plan for the Island.

The Canal Commission’s review is sure to be interesting, given that Governor Christie and DEP Commissioner Bob Martin tried to abolish the Commission, a move that was blocked by the Legislature.

The D&R Canal Commission next meets on June 20, when the issue is sure to emerge again as an item of growing concern to the Commissioners. At their last meeting, the Commissioners agreed to request the DEP provide a public presentation of their plans.

The Lower Delaware Wild and Scenic River Management Committee also meets on June 28 in Frenchtown, and the Alexandria Resolution and DEP’s clearcut plans are on the agenda.

That Committee oversees the Delaware management plan and is part of the National Parks Service wild and scenic river program

In the interim, DEP’s clearcut plan has been blocked by the US Fish and Wildlife Service, due to the presence of federally protected species, including roosting Indiana bat and nesting warbler species.

Below is the full text of the Alexandria Resolution.

I would like to applaud and thank the Environmental Commission members, especially Barb Daniello and Michelle Garay, and the Township Committee, who like the Lorax stood up for the trees and were a pleasure to work with. It is a real treat to see mature adults so effectively cooperate and govern in the public interest:

Whereas Alexandria Township is located along a designated segment of the lower Delaware River and is part of the designated Wild and Scenic River corridor; and 

Whereas, as a part of the National Wild and Scenic System, a River Management Plan was developed as a required component of the Lower Delaware River Wild and Scenic River Study. The Management Plan recommends actions to maintain and improve the lower Delaware River, its tributaries and surrounding natural, historic and cultural resources; and 

Whereas Alexandria Township endorsed and supports the Lower Delaware River Management Plan; and

Whereas Bull’s Island State Park and the D&R Canal State Park are located along a designated segment of the lower Delaware and provide important scenic, recreational, historic, cultural, water resource, and natural resource contributions to the Delaware Watershed, as recognized in the Lower Delaware River Management Plan; and the NJDEP is a signatory of the Lower Delaware Management Plan. 

Whereas the natural features of Bull’s Island are critical component of the high quality D&R Canal State Park and Delaware River experience enjoyed by Alexandria Township residents and thousands of people each year; and

Whereas Bull’s Island provides prime birding experiences and important habitat for rare, threatened and endangered plant and animal species, including NJ state and federally protected species; and 

Whereas Bull’s Island trees and natural vegetation help protect water quality, mitigate flooding, and reduce soil erosion and sedimentation of the Delaware River and D&R Canal; and

Whereas Bull’s Island is adjacent to the D&R Canal, which provides 100 million gallons per day of potable water supply to central NJ; and 

Whereas the trees and natural vegetation currently existing on Bull’s Island help protect the integrity, flow and water quality of the Delaware River and D&R Canal; and 

Whereas the DEP issued a Press Release on March 15, 2012 that announced a plan to clearcut the northern portion of Bull’s Island, removing over 200 mature trees and all existing vegetation; and

Whereas those DEP plans lack an environmental impact review, appear to be based on questionable studies, and may be inconsistent with the water quality and natural resource policies of the Lower Delaware River Management Plan to which Alexandria Township is a signatory; and 

Whereas, the DEP clearcut plans have not been discussed or reviewed by the public or the municipalities and agencies that are signatories to the Lower Delaware Management Plan prior to their development; and

Whereas the traditional DEP permit process does not provide adequate public involvement in DEP’s proposed clear cut plan. 

Therefore, be it Resolved that:

The Alexandria Township Committee requests that the DEP abandon their current announced plans to clear cut trees and remove vegetation from the northern portion of Bull’s Island; and

Commissioner Martin’s Legal Order Handcuffs DEP Enforcement

[Update: 6/14/12 – Todd Bates has an excellent article: DEP cut $430,000 Parsippany fine to $0 – EPA examining why $429G penalty was eliminated

Here’s my favorite part:

But Martin’s decision “handcuffs DEP enforcement,” said Bill Wolfe, director of New Jersey Public Employees for Environmental Responsibility, part of a national nonprofit alliance of state and federal officials. Wolf asked the U.S. Environmental Protection Agency last month to investigate.

DEP spokesman Larry Ragonese said “we don’t respond to Bill Wolfe.”

EPA spokeswoman Mary Mears said in emails this week that “we are talking with the state about the concerns raised in the news release and letter” from NJ PEER and getting information. The EPA has allowed the DEP to oversee permitting and enforcement under the federal Clean Air Act.

Commissioner Martin had State Police throw me out of a DEP public hearing for no reason, and I’ve caught DEP spinmeister Larry Rangonese in numerous embarrassing lies (e.g. see this and this), so its no surprise that the press office continues to attack the messenger. end]

The over-arching environmental policy objective of the Christie Administration is to provide “regulatory relief” and slash “job killing Red Tape” (i.e. DEP regulations).

The Administration is using all the arrows in the Executive Branch’s quiver.

Whether environmental groups, the public, or the press understand it, regardless of the strength of environmental laws, most environmental protection (and destruction) occurs as a result of regulations and the enforcement of those regulations.

The integrity of the regulatory framework is supported by a complex set of legal and scientific tools and bureaucratic processes that operate mostly under the radar and behind closed doors at DEP.

We like to pierce that veil and explain what is really going on. So listen up for the latest and possibly the worst since the waiver rule.

Regulated industry is mounting a sophisticated and systematic attack on the regulatory framework (justified by slogans like “flexibility”), challenging long standing scientific and legal policies and practices.

Here’s a thumbnail sketch or general structural overview of how the regulatory system works: environmental laws/statutes  establish broad policies. The details of those policies are provided in DEP regulations. Permits are issued on a site specific basis in accordance with the regulations. Permits are far more specific than the regulations, in the much same way that regulations are far more detailed than the statutes. Permits typically include sampling, monitoring, and reporting conditions that provide mechanisms for DEP to enforce compliance with the permits. Guidance documents are a more detailed technical interpretation of the regulations – sort of a how to manual that guides both the permitting and enforcement processes.

One key tactic regulated industry have used in this attack strategy is to legally challenge any DEP action –  plan, permit, enforcement fine, Guidance document, or Technical Manual – that has not, as the lawyers say, “satisfied due process and been promulgated in accordance with rule making procedures”.

Basically, industry argues that if it doesn’t explicitly say “X” in the black letter of the text of regulations, then DEP may not enforce “X” – in permits or enforcement action (see below for specific examples of air pollution permits).

That is a radical notion intended to cripple DEP and gut environmental laws through the back door.

And that explains why the the Red Tape Commission recommended and the legislature just banned DEP Guidance documents. Industry felt that DEP was using Guidance documents to enforce requirements that were not explicitly codified in regulations.

Industry wants to force everything through the cumbersome rule making process (and then be able to lobby on the back end of the process, a move enabled by the passage of another “Red Tape” driven law to allow DEP to make “substantive changes on adoption“).

Because DEP rule writing staff resources are extremely limited and totally incapable of addressing even current workload, that industry demand would cause a huge bottleneck in the system and virtual gridlock in permitting and enforcement. (we previously documented that in addition to the initial 90 day regulatory moratorium under EO #1, the Christie DEP had proposed and adopted the fewest regulations of any Administration. We will soon update that data).

At the same time, under Executive Order #2, the DEP’s rule making policies and procedures have been radically changed to benefit industry.  So, any rules DEP does adopt, will be far weaker than current requirements and reflect industry influence allowable under new Executive Order #2 regulatory relief policies.

DEP Commissioner Martin has stood 30 years of regulatory policy on its head and agreed with industry lawyers. Martin has expanded this rule making requirement to the enforcement process.

So, see the below from our friends at PEER.

THOUSANDS OF JERSEY POLLUTION PERMITS UNENFORCEABLE — Appeal for EPA Intervention to Nix Radical Christie Stealth Deregulation

Trenton — Anti-pollution enforcement is plummeting in New Jersey because the Christie administration is erecting roadblocks to imposing fines for violating permit conditions, according to Public Employees for Environmental Responsibility, which is calling on the U.S. Environmental Protection Agency to step in.  The state Department of Environmental Protection (DEP) is employing a “harm but no foul” philosophy in which permit conditions cannot be used as the basis of fines unless they are specified in regulation, which is almost never the case.

This enforcement-neutering approach is perhaps best illustrated in a decision by DEP Commissioner Bob Martin nullifying a $400,000 fine his own department had levied for repeat major air pollution violations by a sludge incinerator in Parsippany-Troy Hills.  Martin’s rationale was that the particular air pollution permit condition was not explicitly referenced in state regulations, even though it was mandated in federal regulations governing the Clean Air Act, which New Jersey is administering.  Martin’s decision also reversed a decision by then DEP Commissioner, and now EPA Administrator Lisa Jackson upholding similar permit conditions imposed on the B.L. England electric generating facility.

While his decision was in an air pollution case, it applies to and makes all kinds of eco-permits legally vulnerable.   Martin’s Order allows violators to legally avoid fines based upon DEP permits conditions not explicitly referenced by DEP regulations.  In addition, DEP permit writers can now be pressured by industry lawyers using Martin’s decision to oppose any condition that is not reflected in the text of the regulations.

DEP issues thousands of air and water pollution and land use permits annually.  For example, the latest permit activity report showed more than 15, 000 permit applications pending, with many times more that already in effect.  Each permit typically includes a dozen or more conditions specifying how the activity or facility is supposed to be conducted in order to protect the environment.  Permit conditions usually include a range of requirements, such as monitoring and compliance reporting, operating conditions, seasonal restrictions and field practices to protect wildlife and, perhaps most importantly, technical requirements that determine the maximum allowable pollution discharge limits.

Not surprisingly, DEP fine revenue is falling by more than half.   As this revenue in turn supports DEP inspection and monitoring of polluting industries, the result is an escalating enforcement tailspin.

“This stealth enforcement rollback sinks below minimum federal standards and puts all state residents at risk,” stated New Jersey PEER Director Bill Wolfe, who is asking EPA Region 2 to exercise oversight in these federally delegated DEP programs.  “Gutting pollution enforcement is not ‘business friendly’ – it merely tilts the economic table to favor industries that cheat or cut corners to the detriment of all of us.”

Aggravating this situation is legislation signed earlier this year by Gov. Chris Christie to ban DEP reliance on guidance documents unless those manuals are codified into formal rule-making.  This has the effect of banning scores of technical directives, thus depriving DEP staff of tools to ensure precision and consistency in administering permits.

“Technical guidance documents are not sexy but they are important because they are necessary equipment for accomplishing environmental regulation.  This new law is like sending hockey players onto the ice without skates or sticks,” added Wolfe, a former DEP analyst.  “The net result, as reflected in vanishing fine revenue, is that it is becoming harder and harder to hold polluters accountable.”

Read the PEER letter to U.S. EPA

See Martin decision on Parsippany-Troy Hills sewage incineration plant