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Industry Consultants Rewrite Toxic Cleanup Standards

Stunning Hypocrisy In Light of Drinking Water Standards Debate 

[VERY Important updates below – please read results of DEP meeting.]

In another illustration of the “regulatory relief” policy mandated by Gov. Christie’s Executive Order #2, after months of meetings with an industry work group, DEP quietly relaxed standards for “vapor intrusion” (VI)  – just exactly as we repeatedly predicted, see this and this and this.

The VI standards rollback was announced in a January  17, 2013 DEP email to private Licensed Site Professionals and will be presented at 1 pm today at the DEP building.

The DEP’s new Vapor Intrusion Guidance (VI) document relaxes standards for several toxic chemicals found in groundwater, soil, and indoor air of buildings. Strict VI standards were set by DEP in 2007 (see the 2007 stricter standards).

[Update: DEP weakened (increased) VI standards for 103 screening values, some by thousands of times, but strengthened just 13 standards – that means 89% of changes made were to weaken protections. see below.]

As the Bergen Record reported back on May 31, 2011, the weaker standards to be announced today were developed by an industry work group (see Polluters rewriting rules for site cleanup:

Key committees writing rules for New Jersey’s new program to clean up contaminated sites are made up entirely of the polluting companies and their contractors. 

The 16 committees, which have been putting together rule and guidance documents,include no one from environmental or resident advocacy groups, no health specialists, and no outside experts who aren’t affiliated with the cleanup industry. [….]

O’Brien & Gere also has a representative on a committee. The contractor was hired by DuPont to install vapor mitigation systems in homes in Pompton Lakes affected by a plume of contamination that spread from an old factory site. Environmental advocate Bill Wolfe, a former DEP official now with Public Employees for Environmental Responsibility, is concerned that contractors and polluters are writing the guidelines.

“It’s like a blank check to technical consultants to write their own requirements,” he wrote on his blog.

The weaker VI standards come at a time when, after 3 years, the Christie DEP has not strengthened any environmental standard and is supporting a chemical industry Legislative initiative to put industry representatives on the Drinking Water Quality Institute to write drinking water standards and undermine the science of risk assessment.

Ironically, the chemical industry DWQI kill bill is justified by false claims that the DWQI is not transparent and does not allow industry input.

But in stunning contrast with the DWQI, the VI standards development truly was non-transparent, completely dominated by industry, and are based on, at best, opaque science – yet all these real and serious flaws are ignored while sham industry claims are backed by DEP. Truly stunning.

Further politicizing DEP science and standards issues, DEP Commissioner Martin – who has no training in science – even went so far as to falsely claim that the nationally recognized DWQI science was “shoddy”. Here are direct quotes from Martin testimony to the Legislature, per Bergen Record):

Under questioning from state Senate Majority Leader Barbara Buono during budget hearings on Tuesday, Martin said he originally intended to sign the proposed rule until he realized “our science was shoddy and I refuse to sign anything that doesn’t have adequate science to back it up.”

He said of the DEP researchers: “The data they provided was poor, not organized, anecdotal at best.” Martin also said nobody was able to document the public health risk of the chemical to his satisfaction.

Yet the the DWQI meets openly, allows all parties to provide input, conducts nationally recognized risk assessment, and provides a robust scientific justification of their recommendations for drinking water standards.

See for yourself – here is an example of that work –  note how the DWQI Report clearly states which specific chemical standards they recommend, explains the the scientific basis for those recommendations, and identifies whether recommendations would increase or decrease any existing standard so the public can see exactly what is going on and why.

Now compare that DWQI work to the DEP justification for relaxing  the 2007 Vapor Intrusion standards.

1. Note how it is impossible to determine the scientific justification of the VI changes, which are not transparent because they are hidden in various models – and seemingly cherry picked apples and oranges from various EPA regions.

2. Note especially how DEP fails to specify which chemical standards are increased (weakened) and which are lowered (strengthened). This makes it very difficult for the public to be made aware of the implications of the changes.

3. Note that, contrary to the DWQI independent science, that the DEP VI standards are developed by an industry dominated work group that was established by invitation only – the participants were hand picked by DEP managers, and some have alleged that “pay to play” was involved.

The linkage between political “pay-to-play” donations and access to DEP prompted a scathing Star Ledger editorial about how one engineering firm dominated the process:

Langan Engineering & Environmental gave $25,000. It received $2 million from state agencies last year, and a senior associate of the firm sits on the state’s Site Remediation Professional Licensing Board, which oversees cleanups of contaminated sites.

None of this is criminal. To qualify as a bribe, evidence would have to show that these payments were explicitly linked to winning government favors. No one has alleged that here.

But Christie himself, when he was a federal prosecutor, favored the ban on big donations from firms doing business with the government.

He understood that it’s a sleazy practice that puts both parties within winking distance of a bribe, and that it engenders widespread mistrust.

( Langan Engineering had 9 staff involved in writing the DEP cleanup requirements, by far more than any other consulting firm, providing not only access but obvious insider knowledge, a distinct competitive advantage in the consultant marketplace – for details, see this).

4. Note that, contrary to the DWQI scientific process, that  there was no transparency or opportunity for the public to comment in the development or adoption of the changes made by DEP to the standards in the 2007 Vapor Intrusion Guidance.

5. Note that, contrary to the DWQI, the DEP VI standards are adopted informally as Guidance and not subject to formal public notice, public comment and public hearing rule making procedures.

6. Worse, a 2009 law that privatized the NJ state toxic site cleanup program allows private consultants to deviate from DEP cleanup standards as long as they write their own permission slip.

Section 14 of the Site Remediation Reform Act explicitly allows consultants to ignore DEP guidance based on their own judgement:

So, we have the worst of all possible worlds here – let’s recap what’s going on:

• driven by Gov. Christie’s policy and Order to provide “regulatory relief”, a hand picked group of private industry representatives, with access to DEP provided by “pay to play” politics, develops their own cleanup standards – all with no public or independent science involvement;
• private industry then applies and implements the standards they developed; and
• if they don’t like the standards, private industry can ignore them and write their own standards.

Only in NJ – all the ugly details, with links to all the documents, from our friends at PEER

[Update: 4 pm – I attended the 1 pm DEP/LSRP presentation, just got home, and can report the following:

DEP obviously responded to specific criticisms we made above. DEP is getting good at rapid response!

1. At the meeting, DEP distributed a new table that compared the new 2013 values with the 2007 values for groundwater, soil and indoor air. Based on a rapid review of that comparison I made during the meeting,  it looks like DEP weakened (increased) 103 VI standards and strengthened just 13.  

These changes were consistently downplayed in the power point handout and misleading presented by DEP during the briefing by specifically identifying the few standards that were lowered, but not providing the same level of explanation for the 103 (89%) that were increased.

This comparison table was not provided in the original email or posted on DEP’s website, so it seems very likely that it was done in response to the above criticism, where I compared the VI changes to the DWQI recommendations.

2. Again responding to our criticism, DEP’s explained that the toxicological basis for the changes came from national data and EPA IRIS values, which were input into DEP models, equations, and calculations (we had suggested cherry picked EPA  regional values and some non-transparent or unsourced assumptions/values.

But NJ has the analytical chemistry and toxicological staff expertise to generate independent and more stringent State standards and methods and historically has done that –  so reliance on national methodology and criteria illustrates the pernicious rollback effects of the “federal standards” consistency policy in Governor Christie’s Executive Order #2: Existing more stringent state standards get rolled back!

3. The DEP changes (i.e. weakenings) will result in hundreds or perhaps even thousands of current groundwater contamination, immediate environmental concern, and/or vapor intrusion cases dropping out of the regulatory system and closed out resulting in no further action on vapor problems (DEP calls this a “reclassification” of a case).

Yet very few existing cases will be reopened, because DEP mis-applied the Brownfield law. That law limits DEP ability to re-open a case to only when standards decrease (i.e. get more stringent) by an “order of magnitude” (10 times). But the Brownfields Act was not intended to and did NOT APPLY TO VAPOR RISKS – DEP is mis-applying law here to limit the impact on old cases that DEP said were clean but that never addressed vapor risks.

Worse, the reclassification (dropping) of cases will be done via an email conversation between the LSRP and the DEP staffer – there is no public notification or involvement whatsoever in this process.

This means that a toxic site near your home that may be creating a vapor problem in your home will not be addressed, will not be cleaned up, and you will know nothing about it.

4. There is no longer any effective distinction between the private sector and DEP – the DEP, LSRP Association, LSRP members, and the LSRP Board have overlapping functions and essentially share functions – one big happy family.

5. There is a bizarre perspective shared by those inside this privatized and DEP captured LSRP culture bubble.

• One LSRP complained that his “clients will squawk” about having to do vapor intrusion investigations and will oppose the increased cost, making the LSRP have to “justify” the DEP standards.

• I asked one LSRP sitting in front of me why the LSRP’s all opposed DEP requirements to do various vapor investigations and additional cleanup, because they have a legal duty to protect public health and obviously would make lots more money doing more work, and therefore should SUPPORT additional DEP requirements. He looked at me like I had just landed from outer space, laughed and said because the “responsible parties” – clients – will oppose having to pay for it! So, just as I expected, the LSRP’s are loyal primarily to the bottom line of their RP clients, not to their duty to protect the public, the environment, and public health.

6. I was allowed to ask a question and made two points:

• Citing comments made by DEP staffers in the room, I objected to DEP decisions to rely on less sensitive analytical methods for mercury and naphthalene, in favor of method reliability over sensitivity. I used these two examples as an illustration of why the DEP should have proposed the Guidance for expert and public review before unilaterally just imposing it.
• I clarified that the 2013/2007 comparison table was not provided before the meeting or posted on the website and objected that the public had no role in participating in the development or review of these new standards. In response, Barry Frasco of DEP said that DEP would propose the standards as remedial standards regulations in 18 months to 2 years.

Vapor Intrusion Standards Relaxed in New Jersey

No Public Review of New Guidance to Industry Consultants on Toxic Cleanups    

Trenton — Without public notice, the Christie administration has rolled back public health protections against seepage of deadly gases into homes, schools and businesses, according to Public Employees for Environmental Responsibility (PEER).  Effective immediately, new state “Guidance” relaxes cleanup levels for several hazardous chemicals.

In a January 17 email to private consultants, called “Licensed Site Remediation Professionals” (LSRPs), the New Jersey Department of Environmental Protection (DEP) unveiled new guidelines governing how much of an array of toxic chemicals may remain in indoor air, soil and groundwater following cleanup of a residential or commercial site.  As the changes did not go through any rule-making process, the public had no opportunity to review them prior to their going into effect.

DEP provided no independently derived scientific basis for the changes.  The agency claims that the revisions are based on various federal guidance values, which were then recalculated to reflect New Jersey’s statutory 1 in a million cancer risk standard.  Nonetheless, the changes would dramatically weaken previous allowable levels for a number of known toxic chemicals, including —

• The indoor residential limits for tetrachloroethene (PCE) were tripled from 3 µg/m3 (micrograms per cubic meter) to 9 µg/m3.  At the same time, the groundwater screening level for PCE jumped from 1 part per billion to 31 parts per billion; and

• The allowable soil levels for MTBE (commonly due to leaking gas station tanks) was more than tripled from 2 ug/m3 to 9 ug/m3.

DEP relied on an industry “Stakeholder” group to develop the Guidance for the state cleanup program, which is under the control of the LSRPs, who work for the private parties responsible for the pollution and liable for the cleanup costs.   Instead of formally revising statewide groundwater standards through rule-making to reflect actual vapor risks, DEP chose to rely on a Guidance document that is not strictly enforceable.

“This is an objectionable stealth rule-making where public health protection got dealt away in the backroom,” stated New Jersey PEER Director Bill Wolfe, a former long-time DEP analyst, noting that the Christie administration has yet to back a single strengthening of environmental regulations.  “The maximum limits for toxic chemicals we are inhaling or ingesting in schools, homes, hospitals or any structure within the plume of past industrial pollution should be the product of a transparent process where science independent of the affected industry is brought to bear.”

Vapor intrusion is a major public health problem in New Jersey, the nation’s most densely populated state, where more than 6,500 sites have groundwater contamination which in hundreds of cases is seeping into nearby homes and buildings.  Some communities, such as Pompton Lakes, have been plagued by dangerous vapor intrusion problems for decades.

“The state’s privatized system of toxic cleanup creates dangerous incentives to cut corners and allow hidden hazards to fester,” Wolfe added. “Residents would be well advised not to breathe too deeply around reclaimed industrial sites in New Jersey.” 

###

See the new Vapor Intrusion Guidance

Look at the DEP email to industry

Trace the privatization of vapor intrusion regulation under Gov. Christie

Examine corporate control of the state’s environmental science 

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

Costs of Climate Change & Environmental Benefits of Wind Are Set at Zero

Social Costs of Carbon and Pollution Are Excluded From Cost Benefit Analysis Tests

Senator Gordon (D-Passaic/Bergen) Chairs Legislative Oversight Committee hearing on delays in implementation of of shore wind

Yesterday, the Senate Legislative Oversight Committee held an important hearing on the Christie Administration’s failure to implement legislation to develop off shore wind (see  NJ Spotlight, where the headline of the story answers itself: Is New Jersey Missing Its Offshore-Wind Opportunity? – Legislative committee wants to know why offshore wind is dead in the water

Aside from the worthy effort to conduct oversight to probe and hold the Christie Administration accountable for their policy  and performance – something the Legislature rarely does and needs to do much more of – the hearing offered a rare and revealing glimpse into the real factors that drive decisions in Trenton.

I want to focus on key economic issues that have gotten little detailed substantive attention.

Chairman Gordon asked a key question – which went unanswered – about the methodology for conducting “cost benefit analysis” and demonstrating “net benefits”. Gordon took exception to how environmental benefits and the social costs of carbon are considered by BPU and went on to suggest that perhaps legislation should better define those benefits and cost benefit analysis methodology, to restrict the discretion of BPU.

The New Jersey Offshore Wind Economic Development Act requires that a cost benefit analysis show “net benefits”.

This is hard to believe, but, according to the BPU consultant who reviews wind, the costs of climate change and the environmental benefits of wind are – by definition – both set at zero.

The BPU consultant’s defined those benefits as zero by limiting the analysis to “market prices”. The BPU consultant explicitly rejected the applicant’s use of social costs of carbon. Instead, the BPU consultant claimed that “The calculation of environmental benefits should be tied directly to market prices.” 

That is a fatally flawed approach that lacks credibility.

By definition, market prices do NOT reflect the social, environmental, and public health costs of fossil power sources. Those costs are significant and are described by economists as “externalities”, i.e they are “external” to or not considered in market prices and transactions. Here is how the consultant did that:

That limitation to tie the analysis to actual market prices excludes consideration of the costs of climate change and the benefits of wind. That approach lacks technical credibility (and is an example of ideological “market fundamentalism” which says that prices can never be wrong) and explicitly contradicts federal policy on cost benefit analysis methodology – see:  Social Cost of Carbon for Regulatory Impact Analysis ­ Under Executive Order 12866

Landscapes, dated 1630 Dong Qichang (Chinese, 1555–1636)

View the album of 8 here

Scholar by a Waterfall, Southern Song dynasty (1127–1279), late 12th–early 13th century Ma Yuan (Chinese, active ca. 1190–1225) Album leaf: ink and color on silk

Listen to Gary Snyder present Mountains and Rivers Without End

View the scroll Mountains and Rivers Without End that inspired Snyder’s poem.

Wooded Mountains at Dusk, Qing dynasty (1644–1911), dated 1666 Kuncan (Chinese, 1612–1673) Hanging scroll; ink and color on paper

Christie Rule Designed to Promote Coastal Rebuilding,  Not Reduce Severe Statewide Flood Risks

Outdated Flood Maps for Portions of the Passaic, Pequannock, Ramapo, Pompton, Hackensack, Raritan and Other Rivers and Streams Are Ignored

flood maps updated in area in light blue - not inland rivers

• The majority of the Department’s flood maps were promulgated in the 1970s and 1980s. While there have been a number of minor revisions to these maps over the years, the Department has generally not undertaken large-scale remapping or new mapping of previously unmapped waters since that time. As a result, the Department’s maps in some cases underestimate the actual extent of flooding. In order to provide more accurate flood mapping to the public, the Department has been working in cooperation with FEMA to revise many State and Federal flood maps in order to reflect current flooding conditions.   ~~~ DEP Emergency Rule  (Jan. 24, 2013)

• Trenton — As New Jersey struggles to recover from the devastating effects of Hurricane Sandy, it does so without accurate gauges of future flooding risks, according to Public Employees for Environmental Responsibility (PEER). New federal maps underestimate the risks of coastal flooding while state inland flooding maps have not been updated for at least a generation. […]

             State maps for inland flooding from rivers are even less reliable, however. At a December 3, 2012 hearing, state Senator Gordon (D-Bergen) pinned Department of Environmental Protection (DEP) Commissioner Martin down concerning the failure to update inland flood maps. Sen. Gordon said he found current DEP maps were 30 years old and based on 40-year old data and exclaimed “We can’t have maps that go back to the Jimmy Carter era.” ~~~   NEW JERSEY YET TO COME TO GRIPS WITH POST-SANDY FLOOD RISKS – Coastal Maps Do Not Account for Climate Change Effects; Inland Maps Decades Old ~~~ December 19, 2012

•  The Asbury Park Press editorial agrees with our assessment: Rush to rebuild could be costly

Base flood elevation maps show how high properties should be built to avoid flood damage.The maps released by FEMA Saturday, however, were drawn prior to Sandy and without using the latest scientific data on climate change and rising sea levels. …

Communities and homeowners alike will be free to challenge FEMA’s new official maps. But they should not wholeheartedly embrace these limited incomplete advisory maps. No one in the state can ignore the evidence of what Sandy has wrought, nor the larger issue of steadily rising ocean waters. Willful ignorance is not a winning strategy for the future.  (12/20/12)

Before I write about the DEP Emergency Flood Hazard Rule on Sandy Rebuild announced on Thursday by Governor Christie,  I want to make a few important points about what the rule fails to address.

Governor Christie has chosen to create two classes of New Jersey and provide different levels of protection of public safety and economic welfare for people who comprise those two classes, based on where they live.

Important inland flooding risks are being completely ignored by the Governor’s focus on shore impacts and his priority of coastal rebuilding over risk reduction. (view FEMA Advisory Base Flood Elevation Maps Here)

Flood risks come in two distinct categories: 1) coastal flooding resulting from storm surge and wave action; and 2) inland flooding from rivers and streams resulting from storm water runoff.

DEP is responsible for mapping and regulating both types of risk across the entire State, under the NJ Flood Hazard Control Act.

But the DEP Emergency Rule, which updated antiquated flood maps and strengthened building codes, only applies to the coast and portions of the Delaware and Hudson Rivers  (see Appendix 2 of the DEP rule for exact locations of updated flood maps by county and municipality and compare them to the FEMA ABFE maps).

And very few people understand that the primary objective of the DEP rule is not even to reduce flood risks, but to promote rebuilding.

DEP admits this themselves in the rule summary:

Given the above, the Department is concurrently proposing the emergency adopted amendments in order to establish requirements and more efficient procedures for authorizing persons to construct, reconstruct, relocate and elevate buildings and other structures in flood hazard areas or to otherwise flood-proof buildings to avoid and reduce the type and severity of flood damage experienced by many State residents as most recently exemplified by the Superstorm Sandy. This rulemaking is furthermore made in recognition of the current need to timely rebuild damaged structures within New Jersey’s coastal communities on a monumental scale.

As a result of the Governor’s decision to prioritize rebuilding over reducing flood risks, critical issues were ignored, including known flood risks in inland north and central Jersey and known outdated and under protective inland flood maps and development standards.

Again, despite these known flood risks and outdated flood maps, DEP admits this narrow coastal focus in the rule summary:

Over the past several years, and in cooperation with the Department, FEMA has been undertaking a comprehensive remapping of tidal flood elevations along New Jersey’s Atlantic coastline.   FEMA’s flood elevation models for many coastal communities were developed decades ago using various methodologies that resulted in a patchwork of flood insurance rate maps with a variety of flood elevations. In response to concerns that FEMA’s existing flood insurance studiesunderestimate the extent of tidal flooding in many communities, the Department has partnered with FEMA to develop more accurate coastal flood mapping. , Using a   uniform modeling approach, and relying on data collected over the past several decades, FEMA has confirmed that its existing flood mapping along New Jersey’s coastline generally underestimates today’s actual 100-year flood elevation by approximately one to four feet and, in some circumstances, by as much as eight feet. Many people who constructed a building with its lowest floor at the 100-year flood elevation shown on FEMA’s existing flood maps discovered during Superstorm Sandy that their building lies below the actual 100-year flood elevation. These buildings may be subject to greater flood damage potential over time and likely greatly increased flood insurance costs.

The same serious problems exist along inland rivers and streams across the central and northern portions of the State.

Those risks will only increase as more overdevelopment is allowed (which generates more storm water runoff) and climate change causes more frequent and severe rainfall amounts.

Had Superstorm Sandy dumped 5 -10+ inches of rain on north jersey – as it did in some areas to our south – there would have been catastrophic inland flooding perhaps greater than the shore devastation.

Inland river floodwaters flowing into bays would have made record storm surges even HIGHER.

Why aren’t people, legislators, and the media up in arms about that?

Most likely, because they don’t know about it.

The Bergen Record  – who should be all over this given Senator Gordon’s oversight – sure didn’t tell them about that –

DEP Claims Storm Preparation Plans Are Secret

NJ The Only State In Northeast That Lacks A Climate Change Adaptation Plan

Will the media and Legislature please step up?

Yesterday I laid out evaluation criteria and I now am reviewing the DEP’s Emergency Rule on Sandy rebuilding and formulating my thoughts before writing on that topic.

But in the course of doing that, I just received an email from DEP that denied my public records request (OPRA) for DEP’s Sandy preparedness and response plans. So, the analysis of and response to Governor Christie’s rebuild standards will have to wait a moment.

I have been highly critical of the State’s lack of a climate change adaptation plan – NJ is the only state among the 12 northeastern states that lacks such a plan – and DEP’s failure to conduct vulnerability assessments to prepare for exactly the kind of storm Sandy hit us with.

So, given what I assumed was a severe vulnerability and likely source of critical legislative oversight, I was shocked to hear DEP Commissioner Martin testify on December 3, 2012 to the Senate Budget and Appropriations Committee that each DEP Assistant Commissioner had a storm preparedness, response, and management plan for each program area in the Department.

Martin claimed that those plans worked well and DEP did a superb job.

Of course, I found this very hard to believe so I filed this OPRA request to review those plans to test Martin’s claims:

On December 3, 2012, DEP Commissioner Martin testified to the Senate Budget & Appropriations Committee. In that testimony, Commissioner Martin stated that each DEP Assistant Commissioner had emergency preparation, response, and management plans in place that existed BEFORE Superstorm Sandy struck and that these plans were deployed BEFORE the storm struck, during the storm, and after the storm. I request a copy of the specific plans Commissioner Martin cited in his Senate testimony on 12/3/12. In case this request is not absolutely clear, here is a link to video of Martin’s testimony:

DEP dragged their feet and requested a delay from the OPRA 7 day response requirement. Coincidentally, this delay dragged the DEP response out past the Gov. announcement yesterday.

Here is DEP’s lame response denial:

This request has been denied pursuant to N.J.S.A. 47:1A-1. See Addendum Disposition Notes below for further information.

Addendum Disposition Notes: The subject plans have not been finalized, are consider deliberative and confidential pursuant to N.J.S.A. 47:1A-1.1. In addition, some components of the plans are confidential pursuant to N.J.S.A. 47:1A-9, EO 47, N.J.A.C. 7:1D-3.2(b)1.

How the hell can a DEP Commissioner publicly testify to the Legislature about the existence of DEP plans that he claims performed so well, and then claim they are secret?

Will the media and Legislature please step up?