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Are these corporations “qualified”, trustworthy, and good corporate neighbors?

EPA Refused Repeated Requests To Provide The Document for Public Review, and then Approved Ecological Risk Assessment with No Public Review

Curtis Specialty Papers Superfund site, Milford NJ (1/30/12)

Last night, US EPA held a Community Advisory Group (CAG) meeting in Milford NJ to update the community regarding progress since the last April meeting in cleaning up the Curtis Specialty Papers Superfund site along the Delaware River.

Before getting to what went down at the meeting, let me set the context:

I)  Context – The Delaware River Has a Big PCB Problem

I have been involved with this site, given impacts on the Delaware River and D&R Canal State Park, particularly with respect to potential ecological damages associated with off site releases of PCB’s to the river and the impacts of bioaccumulation on fish and birds.

The Delaware, a Congressionally designated “Wild and Scenic River”,  is under NJ DEP fish consumption advisories for multiple species due to high PCB levels in fish tissue.

As a result, under the federal CLean Water Act, the Delaware River is designated as “impaired” due to high levels of PCB’s in fish tissue. Amazingly, DEP lists the Delaware PCB impairment a “low priority” for a cleanup plan called a “TMDL”. Even more revealing, the DEP does not even list contaminated sites as a source of the PCB’s. Instead, DEP  protects polluters by using the general pollution source class “urban runoff.

The Curtis Papers Superfund site is contaminated with PCBs, which have migrated off site into a nearby creek and the River, and is located within bald eagle foraging habitat, a highly sensitive species to PCB bioaccumulation.

The lower portions of the river have exceedingly high levels of PCBs, which triggered a Clean Water Act mandated cleanup plan known as a “Total Maximum Daily Load” (TMDL), conducted by the Delaware River Basin Commission. A TMDL “Implementation Advisory Committee” is supposed to closely monitor and take special efforts to reduce PCB loads to the river, including the portions of the river above Trenton.

With the support of US EPA, The US Fish and Wildlife Service NJ Field Office previously rendered a formal “Biological Opinion” regarding PCB bioaccumulation impacts on Bald Eagle and Peregrine Falcon, recommending extremely low water quality standards to protect those PCB sensitive bird species.

Recognizing the PCB threats to the River from contaminated sites, DEP developed a targeted cleanup plan.

Based on the USFWS Biological Opinion, DEP also mandated specific new PCB monitoring, source track down and “pollution minimization plan” control requirements for sewage treatment plants.

Last, the NJ DEP previously had entered into a $1 million legal Settlement with the corporations, but that settlement was limited in scope and explicitly carved out any “natural resource damages” to the Delaware River and fish & wildlife.

The findings of the Ecological Risk Assessment (ERA) could establish the extent of those natural resource damages and trigger compensation and/or restoration requirements. Here’s a Court’s summary of that (the Crown settlement applies to “any and all properly”, which includes the Curtis site):

Check this out – focus on highlighted text – “any and all property”. According to a recent NJ Appellate Division decision:

Approximately six years after Crown purchased the landfill, it filed for bankruptcy protection in the Northern District of California. As part of those bankruptcy proceedings, it filed a motion under 11 U.S.C.A. § 554 to abandon its interest in this landfill, as well as several others that it owned and operated. The DEP objected to this abandonment because of the potential risks to the environment posed by abandoned landfills. To secure the DEP’s agreement to this motion, Crown agreed to pay $1 million to the DEP to be used “to investigate, close, clean-up, or otherwise remediate any environmental condition on any and all property” of Crown in New Jersey. Based upon this payment, the DEP withdrew its objection to the motion, and the bankruptcy court entered an order on March 2, 2001, authorizing the abandonment of this property. The order entered by the bankruptcy court simply referred to abandoning the property and did not mention the 1991 agreement that structured the manner in which the landfill was to operate, nor did it convey title to the underlying land.

Following entry of that order, the DEP used a majority of the funds from Crown to close up another of Crown’s landfills that it considered to require immediate attention. The DEP did no more with the Warren Glen landfill than to periodically visit it and to mow the grass to keep it from becoming overgrown.

An EPA consultant’s Report traces the ownership history

So, given this context, there should be an acute awareness and sensitivity to PCB risks to fish and wildlife and river water quality by EPA and US FWS and the larger Milford community.

II)  What Went Down at Last Night’s CAG

When last night’s CAG meeting was announced by EPA in an August 2 email, I noted that it touted the completion of an Ecological Risk Assessment. So I immediately responded and requested a copy of the document. I followed up that request several times and was consistently put off by EPA.

After almost 2 months of foot dragging, EPA finally provided the document yesterday, just hours before the meeting, making it impossible to adequately review.

When I got to the CAG meeting, I noted that the Agenda stated that the Ecological Risk Assessment already was approved by EPA on September 4, 2013!

The bastards at EPA withheld the document and then approved it before I could even read it and raise concerns with US Fish and Wildlife Service (similar to what I did to force additional cleanup and downriver sampling in Dupont Pompton lakes site).

Looks like EPA and the corporations desperately were trying to avoid a repeat of that!

So, my skepticism grew about the content of the Ecological Risk Assessment, given this abuse and bad faith on the part of EPA.

The meeting began with a presentation by a private consultant for the polluters (AKA “responsible parties”), Georgia Pacific and International Paper. The consultant presented the Baseline Human Health Risk Assessment and the Ecological Risk Assessment (ERA).

I was stunned by some of his statements consistently downplaying risks and omissions of all the sensitive PCB scientific and regulatory  issues mentioned above.

I had superficially scanned the Executive Summary of the ERA before the meeting, and although I am no scientist or expert, noted questionable methods and findings. I noted that the entire analysis was based solely on a model, not actual sampling of fish and wildlife tissue, egg shell residues, or bird breeding success.

The ATSDR Health Assessment previously noted the lack of sampling data, and recommended sampling of sediments and biota.  The remedial investigation of the site is not complete. So I found this avoidance of fish and bird sampling suspect (more to follow on these technical and regulatory issues in a subsequent post).

During the meeting, in response to my questions and comments – which went unanswered by the consultant – EPA repeatedly assured me and the community that “US FWS has reviewed and approved” the ERA. The EPA case manager also stated that a model was “more rigorous” and conservative than sampling data.  I will look into the USFWS review process.

At the end of the hearing, I tried to explain to the community why the consultant’s work should be treated skeptically, given the economic conflicts of interest his client has.

Why does EPA allow a corporation to control the science of a Superfund cleanup?

Section 104 of the Superfund law authorizes EPA to allow an RP to conduct the investigations if the studies will be done “properly and promptly” and EPA determines that the RP is “qualified” to do so.

But it looks like the only “qualification” of these corporations seems to be their ability to write checks to EPA to pay for their oversight costs.

Here is how the federal Agency for Toxic Substance and Disease Registry described the behavior of these corporations at the site – is this trustworthy corporate behavior?

In subsequent posts, we will go into some of the regulatory and scientific details of the issues we outlined above.

On the seaside, the ruins recent

from the latest storms

remind of ancestral wealth

pillaged purloined pawned

by an unthinking grandfather

who lived the life of a lord

and drove coming generations to

despair and ruin  ~~~  excerpt from “Across a New Dawn”, a poem by Kofi Awoonor

A friend passed along the news that  the poet Kofi Awoonor was killed in the Nairobi mall terrorist attack.

I was not aware of this man’s work, but was incredibly moved by his words – they tell a human story that is so deep, and so sad.

The beauty – and relevance – of his language, message, and wisdom provide lessons and inspiration for our struggles – spiritual and material.

I get stuck and completely (searching for a word here) unwound and ashamed that senseless slaughter extinguished a light so bright, and a vision so prescience about our current catastrophes.

Here is Kofi’s poem, “Across a New Dawn” (my apologies if I have not formatted this correctly)

ACROSS A NEW DAWN
by Kofi Awoonor

Sometimes, we read the

lines in the green leaf

run our fingers over the

smooth of the precious wood

from our ancient trees;

Sometimes, even the sunset

puzzles, as we look

for the lines that propel the clouds,

the colour scheme

with the multiple designs

that the first artist put together

There is dancing in the streets again

the laughter of children rings

through the house

On the seaside, the ruins recent

from the latest storms

remind of ancestral wealth

pillaged purloined pawned

by an unthinking grandfather

who lived the life of a lord

and drove coming generations to

despair and ruin

*

But who says our time is up

that the box maker and the digger

are in conference

or that the preachers have aired their robes

and the choir and the drummers

are in rehearsal?

No; where the worm eats

a grain grows.

the consultant deities

have measured the time

with long winded

arguments of eternity

And death, when he comes

to the door with his own

inimitable calling card

shall find a homestead

resurrected with laughter and dance

and the festival of the meat

of the young lamb and the red porridge

of the new corn

*

We are the celebrants

whose fields were

overrun by rogues

and other bad men who

interrupted our dance

with obscene songs and bad gestures

Someone said an ailing fish

swam up our lagoon

seeking a place to lay its load

in consonance with the Original Plan

Master, if you can be the oarsman

for our boat

please do it, do it.

I asked you before

once upon a shore

at home, where the

seafront has narrowed

to the brief space of childhood

We welcome the travelers

come home on the new boat

fresh from the upright tree

As EPA Bows to Coal Lobby on New Plants, Signals Retreat on Existing Plants

Enviro’s and Media Can’t Tell Capitulation from Leadership

“based on the analysis, EPA anticipates that the proposed EGU New Source GHG Standards will result in negligible CO2 emission changes.”  ~~~ EPA Regulatory Impact Analysis of proposal of federal standards for new plants

“the  standards that will be developed for currently operating sources are expected to be different from, and less stringent than, the standards proposed today for future sources”  ~~~ EPA Statement regarding development of federal Guidelines for existing plants

“We are thrilled that the E.P.A. is taking this major step forward in implementing President Obama’s climate action plan,” said Tiernan Sittenfeld, a senior vice president at the League of Conservation Voters,  (via NY Times)

[Update below]

This one is too cynical even for Orwell.

Follow this step by step – I’ll try to hit the high points (but of course, will leave stuff out):

1. Last April (2012), EPA proposed a new rule that effectively would have banned new coal power plants.

Despite the fact that new coal plants were not being built by the private sector for economic reasons (i.e. the current glut of natural gas is far cheaper fuel than coal) and the fact that the proposal ignored several hundred existing coal plants that create 40% of US carbon emissions, the proposal was widely praised by media and EPA Administrator Lisa Jackson was celebrated as a hero.

The Coal Lobby and the Republicans accused President Obama of waging a “War on Coal”. Coal state Democrats also raised objections.

2. Environmental groups spend time and money to mobilize public support for the proposed rule, generating over 2 million comments in favor of the proposal.

3. There is virtually NO MENTION of climate change during the campaign by the President or the national media. Environmental groups make no demands and shut up and back the President’s re-election efforts.

4. Seven months later, in November, President Obama is re-elected to a second term.

5. In his January Inaugural Address, Obama surprises everyone and makes page one news with his emphasis on the need to address climate change, something he was silent on during the campaign:

We, the people, still believe that our obligations as Americans are not just to ourselves, but to all posterity.  We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations.  (Applause.)  Some may still deny the overwhelming judgment of science, but none can avoid the devastating impact of raging fires and crippling drought and more powerful storms.

The path towards sustainable energy sources will be long and sometimes difficult.  But America cannot resist this transition, we must lead it.  We cannot cede to other nations the technology that will power new jobs and new industries, we must claim its promise.  That’s how we will maintain our economic vitality and our national treasure — our forests and waterways, our crop lands and snow-capped peaks.  That is how we will preserve our planet, commanded to our care by God.  That’s what will lend meaning to the creed our fathers once declared.

6. In February, Obama  doubled down on his Inaugural remarks, in his State of the Union Address warning Congress that he would take Executive action on climate change, if Congress failed to act:

But if Congress won’t act soon to protect future generations, I will. I will direct my Cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy.

7. Ooops, a year later, in April 2013, Obama signals a retreat: (NY Times)

The Environmental Protection Agency said Friday that it would delay issuance of a new rule limiting emissions of carbon dioxide and other greenhouse gases from new power plants after the electric power industry objected on legal and technical grounds.

8. More than 17 months goes by after EPA’s April 2012 proposal, as EPA reviews and responds to more than 2.5 million public comments overwhelmingly in favor of the proposal.

9. All sorts of climate “extreme weather” disasters continue to proliferate across the country, including Hurricane Sandy, massive western wildfires, droughts, and floods.

10. After all this, yesterday, EPA withdrew the April 2012 proposed rule for NEW POWER PLANTS and sent a very weak message about regulating emissions  from EXISTING COAL PLANTS .

11. The new EPA Administrator explained that the reason EPA withdrew the rule is because it did not consider and would not allow new coal power plants: (WaPo story):

“We’re providing at least some certainty here that [coal plants] have an opportunity to be around in a carbon-constrained world,” McCarthy said in an interview. “The president wants every fuel to be able to compete in a clean environment.”

12. The same day EPA withdrew the April 2012 proposal, EPA proposed a new rule.

This new rule is substantively weaker that the prior proposal, includes weaker emission limits for new coal plants, and specifically “provides regulatory certainly” to accommodate new coal power plants.

The final adoption date is put off unit 2017, injecting several years of delay and allowing proposed new coal plants in the permitting pipeline to be “transitioned” from and evade compliance with the new regulation.

13. The EPA “Regulatory Impact Analysis” on the new proposal says it will cost little to nothing to comply with the rule and have little to no impact on carbon emissions.

14. At the same time EPA announces the withdrawal and new proposal, EPA issues an unbelievably bad statement that sends an extraordinarily weak signal about beginning a “stakeholder process” to develop new rules for existing power plants.

EPA bent over backwards to emphasize key weaknesses: a) this new rule for existing plants may be “less stringent” than the just proposed new plant standard; b) STATES will be in charge of setting state specific standards; c) economics will play a huge role; and d) this process is just beginning and will play out for years:

Existing power plants

Standards for currently operating plants are set through a federal-state partnership that includes federal guidelines and state plans to set and implement performance standards. Reflecting the significant differences between currently operating sources and those not yet built, the standards that will be developed for currently operating sources are expected to be different from, and less stringent than, the standards proposed today for future sources. Over the coming months, EPA will be engaging with states and a diverse set of partners, including the power sector, environmental groups, and the public, to identify innovative, pragmatic approaches that build on the leadership that many states have already shown to cut carbon pollution from the power sector.

I’m sure coal intensive and coal plant reliant states have made great progress and will make much more progress in strictly and “pragmatically” regulating coal! (that’s snark).

15. The EPA withdrawal and re-proposal announcement was made a high profile event by the Obama Administration, including an EPA press release touting ” Agency takes important step to reduce carbon pollution from power plants as part of President Obama’s Climate Action Plan”.

Important step? WTF?

EPA’s own Regulatory Impact Analysis exposes that lie:

“based on the analysis, EPA anticipates that the proposed EGU New Source GHG Standards will result in negligible CO2 emission changes”

But I guess reporters and beltway environmental sycophants don’t understand regulations and don’t read those kind of documents. NY Times story:

“We are thrilled that the E.P.A. is taking this major step forward in implementing President Obama’s climate action plan,” said Tiernan Sittenfeld, a senior vice president at the League of Conservation Voters, in anticipation of Ms. McCarthy’s announcement. “It’s a great day for public heath and a clean energy future.”

As part of EPA’s PR campaign, EPA Administrator wrote an Op-Ed’s rollout announcing that it’s “Time to Act on Climate Change“ (exactly as she does the opposite and delays and weakens any EPA action).

The EPA PR rollout came on Thursday and Friday, timed perfectly to drive away press from a major 350.org climate change protest “Drawing the line” on the Keystone XL Pipeline.

So, what is the response to this?

• Obama and EPA are praised by environmental groups for leadership and taking action on climate change.
• Obama and EPA get tons of favorable press for taking strong regulatory action on climate change.
• The Coal Lobby and Republicans remain in attack mode.
• There is no impact on current emissions or plans for future emissions from the energy sector.
• The 350.org protest “Drawing a line” on KXL basically gets ignored by media.

The world is completely upside down.

[Update: 9/23/13 – today’s NJ Spotlight storygets it mostly right, despite Jeff Tittel’s closing spin.

Here’s my comment on it, which left out the issues of recent lifecycle assessment studies that show natural gas has as great or greater global warming potential as coal, when full lifecycle emissions are taken into consideration:

Good article – thanks to Mr. Johnson, NJ Spotlight is one of the very few media outlets that did not get played by Obama EPA spin on this.

Important point were neglected, however:

1. the EPA proposed a STRONGER rule in April 2012 on new plants. That rule was opposed by the coal lobby and Republicans. After years of work by EPA and 2.5 million public comments in favor of the rule, EPA backed down and withdrew that proposal and was forced by the Obama WH to re-propose a weaker rule, explicitly, according to EPA Administrator and the regulatory documents, to “provide certainty” to accommodate new coal plants.

2. Nationally, regardless of the cheerleading by environmental groups, the proposal will have little to no impact on reducing GHG emissions:

“based on the analysis, EPA anticipates that the proposed EGU New Source GHG Standards will result in negligible CO2 emission changes.” ~~~ EPA Regulatory Impact Analysis of proposal of federal standards for new plants

3. EPA also issued a statement regarding the development of the more controversial standard for existing coal plants. That EPA statement signaled political and technical weakness by emphasizing the lead role of states; that existing plants would be subject to less stringent standards; and that cost of compliance would be given huge consideration in a “pragmatic” federal; Guideline and State SIP’s:

“the standards that will be developed for currently operating sources are expected to be different from, and less stringent than, the standards proposed today for future sources” ~~~ EPA Statement regarding development of federal Guidelines for existing plants

So, just months after the President made climate change an alleged priority commitment in his Inaugural and State of the Union addresses, his first formal regulatory action was to weaken and delay EPA proposed rules  – in order to promote coal.

[Updates below]

Just a quick note, because I don’t have time to write in detail about this today.

There is a lot of confusion (it’s not a “tight cap” and it’s not new) and pure political spin on the EPA’s proposed rule on power plant greenhouse gas emsisions announced yesterday.

So here is the cliff notes talking points critique to puncuture the spin.

Yesterday’s EPA proposed rule was a huge political and regulatory setback.

The defeat was signaled in Obama’s “President’s Climate Action Plan” June 2013  and Obama’s  “Blueprint for a Secure Energy Future.” March 30, 2011.

And the timing of the announcement is highly suspect – it was likely to divert attention and dampen criticims from today’s “drawing the line” protests on KXL pipeline. Here’s bullets why:

1. First of all, this rule applies to NEW coal plants, which are not being built for economic reasons. And the target date for a final rule is now 2017. There is no progress on a rule for EXISTING plants, which cause 40% of GHG emissions.

Update #1:

The Washington Post story makes my point:

“We’re providing at least some certainty here that [coal plants] have an opportunity to be around in a carbon-constrained world,” McCarthy said in an interview. “The president wants every fuel to be able to compete in a clean environment.”

Update #2 – The EPA set ground rules for the public hearing on the proposal in Washington DC (date not set yet) – these restrictions include outrageous bans on protest, photography in the hearing room, and signs:

Because this hearing is being held at U.S. government facilities, individuals planning to attend the hearing should be prepared to show valid picture identification to the security staff in order to gain access to the meeting room. In addition, you will need to obtain a property pass for any personal belongings you bring with you. Upon leaving the building, you will be required to return this property pass to the security desk. No large signs will be allowed in the building, cameras may only be used outside of the building and demonstrations will not be allowed on federal property for security reasons. (proposal @ p. 3)

That means I can’t photograph witnesses who testify and the typical pre-hearinng protest outside the hearing room is banned.

I can understand a theoretical (but sham) concern about signs as a safety hazard, but how can EPA possibly find a valid legal basis to ban cameras and protests?

I assume cameras are prohibited in all federal buildings – but this is a public hearing where sham “security” concerns MUST be secondary to Constitutional rights.

Is this kind of suppression of constitutional rights also part of the “new normal”?

Welcome to the national security surveillance state, under a former “Professor of Constitutional law”.

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