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Will First Hand Experience with Toxic Drinking Water Change Assemblyman Burzichelli?

[Updates below]

NJ Spotlight ran another disturbing story by John Hurdle today about drinking water contamination in Paulsboro, see: ENVIRONMENTALISTS REJECT SOLVAY CLAIM ON SAFETY OF PAULSBORO WATER

Tracy Carluccio of Delaware Riverkeeper has been doing an outstanding job on this situation, so I’ll tread lightly and just make a few contextual observations on the policy and political front on the many related  issues I’ve worked on in both Paulsboro and statewide.

I don’t want to delve into the specifics of the DEP response, alleged “abundance of caution“, and  so called “fact sheet” at this time, other than to note two things:

1) DEP has been dragging their feet for many months in responding to this long known problem;

2) DEP’s response only occurred AFTER the Mayor wrote to Gov. Christie to complain. Given Christie’s scandal woes, the last thing he needs is an environmental scandal and bad press, which I think is the only thing that explains DEP’s public engagement now.

Current Drinking Water Threat Part of Larger Toxic Problem

Recall that Paulsboro, located in the belly of the beast of what NJTV called a “chemical industrial complex“, was where the toxic train derailed (see NJTV: “Shelter in Place Order Still in Effect After Paulsboro Train Derailment“.

Ironically Paulsboro also is in the district of Senate President Sweeney and Assemblyman Burzichelli, both of whom have not be supporters – and  at times antagonists – of strong environmental and public health protections and enforcement of regulatory mandates.

The Paulsboro community has not yet recovered from that train derailment assault, and, aside from the replacement of the bridge that caused the derailment, nothing has changed on the policy and regulatory front to prevent similar train and chemical accidents.

In addition to the threats of toxic train derailments, the people of Paulsboro are assaulted on a daily and continuous basis from the toxic air and water emissions and spills from the “chemical industrial complex” in and around the town, including chemical plants, refineries and pipelines (take a look at the local High School).

So, given the significant pervasive toxic threats to Paulsboro, I will make a few quick points (those interested in the broader scientific and regulatory context should hit the above links for a host of related issues):

1) Perhaps Assemblyman Burzichelli, now that he has had first hand experience with the science and regulation of drinking water standards, will not reintroduce his bills to allow industry to control the Drinking Water Quality Institute and DEP science and regulatory processes.

(see also:  Should the Chemical Industry Have a Role in Writing Your Drinking Water Standards?

[Update – the bill was reintroduced in the 2014-2015 session, see A1884 – wonder if the people of Paulsboro are aware of this? Maybe someone should tell them it would be like letting Solvay-Solexis decide if their water is safe. – end update]

Given DEP’s response to the Paulsboro issue, Burzichelli should also revise his views on regulatory policy and not reintroduce bills to roll back NJ’s protections to weaker federal standards and reconsider his role on the Christie “Red Tape Commission”, which was designed to rollback DEP standards;

[Update – it looks like the federal standards bill has been abandoned, but I found another really bad bill that would strip the DEP Commissioner of power to issue enforcement fines and shift that power to an Administrative Law Judge, effectively gutting enforcement, see A2225 (this is last session’s version of A1532, the reintroduced version is not yet posted. Note that current Assembly Speaker Prieto was co-spomsor of the bill last session, so this bill could move. – end update]

2) DEP spokesman Ragonese has lied about the Drinking Water Quality Institute now for 3 years – when will the Chrisite DEP be held accountable for basically dismantling the DWQI?

DEP Commissioner Martin has blocked the DWQI from meeting since September 2010 – I was at that meting with Tracy Carluccio of DRK – and they have not met since (after 25+ years of regular quarterly meetings).

3) there are scores of similar drinking water contamination issues statewide that are as bad or worse than Paulsboro (e.g. see:

• Warning: This Map Could Make You Sick
• Filter the Chemical Soup in NJ’s Drinking Water
• JERSEY NIXES FILTRATION PLAN FOR DRINKING WATER

4) Last, given the RCRA “imminent threat” litigation, perhaps former Commissioner Campbell would like to talk to the hundreds people who live in the Dupont plume in Pompton Lakes. They are being poorly represented by their local government and EPA has been handcuffed. see:

The Great Dupont Train-RCRA

The people of Pompton Lakes sure need quality legal representation – and they clearly meet the RCRA ‘imminent and substantial” risk threshold.

Gov. Pocket Veto’s Bill To Require Public Notification of Raw Sewage Discharges

Why Would Gov. Christie Want to Keep Raw Sewage A Secret?

[Important updates below]

Governor Christie ended his first term as the first  NJ Governor ever to complete a 4 year term with virtually no environmental legislative accomplishments, serious legislative rollbacks, and nothing but rollbacks on the regulatory front.

Christie ends his first term attacking environmental protections, just where he started, when in the first hour of his first day in office, he issued a series of sweeping Executive Orders: establishing a moratorium on regulations (EO #1); regulatory relief, federal standards rollback, and cost benefit analysis (EO #2); a new Red Tape  Czar and Red Tape commission (EO #3); and restrictions on unfunded state mandates (EO #4).

Going out with a bang, Christie also ended the 215th Legislative Session (2012-2013) with more evidence of his hostility to environmental protection – evidenced in the bills he signed and the long list of bills he refused to sign and let expire (a “pocket veto”).

But the Governor did so quietly, under cover of his scandal, Inauguration, and a major snow storm that triggered an emergency declaration (view Gov. press release and the massive legislative dump here).

In fact, the Gov.’s action on two bills in particular provide a stunning example of that hostility.

First, the Governor signed a bill that would provide a two year extension of toxic site cleanup deadlines and allow private consultants for the polluters to self certify that the delay is justified.

The bill was rammed through the lame duck session, got no press, and is a poster child for abuse.

The bill guts the only enforceable deadline in the new DEP privatized toxic cleanup program and is a stunning contradiction of the corporate polluters’ promises to expedite cleanup in exchange for privatizing the cleanup program.

The law will only result in more pollution of our soil, groundwater, drinking water, rivers and streams and wildlife –  while allowing the cleanup of  toxic hazards in our communities to fester for two more years.

The only beneficiaries of the law are corporate polluters, who dodge costly cleanup requirements.

I wrote about that bill here:

• Lame Duck Alert: Polluters Seek Rollback of Key Deadline In Privatized Toxic Site Cleanup Law 
• Your Orwell Today: Christie DEP Calls Privatization of Toxic Site Cleanup Program “Self-Implementation”

Second, the Gov. “pocket vetoed” a bill that would have required public notifications and warnings about raw sewage discharges to our rivers, streams, and bays.

Jim O’Neill at the  Bergen Record gets it:

Governor Christie declined to sign a bill that would have required public notification whenever sewer-outfall pipes dump raw sewage into local rivers and bays, legislation that had received overwhelming support by both parties in the state legislature.

The bill also would have required outfall pipes to be clearly marked with signs for swimmers, fishermen, kayakers and other who use the water.

“I’m extremely disappointed,” said Debbie Mans, head of the NY/NJ Baykeeper, which supported the bill. “This is a significant public health issue. Unfortunately the governor didn’t think important that the public be informed that they are swimming in raw sewage.”` –

Killing that bill makes an absolute mockery of the Governor’s promise made at his first Inaugural address that:

Today, a new era of accountability and transparency is here.

Christie is the “worst environmental governor ever” (sorry, I stole that phrase from Jeff Tittel, who used it to describe Gov. Corzine).

Here are other pro- environmental and public health related bills the Gov. pocket vetoed – without explanation.

The legislation would have improved a myriad of protections and programs for: coastal dunes; transportation infrastructure financing; coastal rebuilding and home elevation; fire prevention; health risks from mold; clean energy; green buildings; water conservation; and hurricane flood protections – take a look:

S-2602/A-3893 (Smith/Spencer, Rudder) – Repeals law providing CAFRA permit exemption for certain grading or excavation of dune

CC SCS for S-2143/ACS for A-3177 (Gordon, Norcross/Wisniewski, Singleton, Stender, Caride) – Establishes State Transportation Infrastructure Bank and Energy Bank within New Jersey Environmental Infrastructure Trust

S-2976/A-4394 (B. Smith, Bateman/Wisniewski, Amodeo) – Provides standards for, and requires registration of, home elevation contractors

A-1570/S-2273 (Wisniewski, Green, Jasey/Norcross) – Requires fire suppression systems in new single and two family homes

A-1588/S-2081 (Benson, Riley, Ramos/Singer, Greenstein) – Requires DCA to establish procedures for inspection and abatement of mold hazards in residential buildings and school facilities, certification programs for mold inspectors and mold hazard abatement workers

A-2888/SCS for S-2733 (Chivukula, McKeon, Eustace/Smith, Greenstein, Whelan, Bateman, Beck) –Creates Office of Clean Energy in BPU

A-3103/SCS for S-2732 (Ramos, Spencer, Gusciora, DeAngelo, Benson/Gordon, Greenstein) – Provides for priority consideration, by DCA, DEP, DOT, and municipalities, of permit applications for green building projects

A-3898/S-2632 (Ramos, Spencer, Eustace, Vainieri Huttle, Sumter/Smith, Greenstein) – Authorizes municipalities to finance water conservation, storm shelter construction, and flood and hurricane resistance projects

[Update #1: 1/23/13 – Gov. Christie’s signing the 2 year delay in toxic site cleanup got no press. Compare that silence to the ton of coverage given a similar 2 year delay in a water quality rule – could that be because Jeff Tittel curiously testified in support of the cleanup bill delay and then left that bill out of his press release? Why would Tittel support delay of a bad privatization law he opposed and used as his primary example of why Jon Corzine was “the worst environmenntal governor ever”?  Don’t believe he supported it? Listen to the testimony (hit link for Senate Env. 12/5/13). The media stenographers tend  to defer to Tittel for determining what’s newsworthy and lord knows, he works the phone).

But, the raw sewage bill got a good followup story in the Bergen Record, see: Backers of sewage spill bill are baffled –

But oops! reporter Jim O’Neill forgot to ask Sen Smith about his toxic cleanup delay bill! That might muddy the narrative of Smith as environmental champion.   end update #1].

[Update #2– Kirk Moore does a good story on pocket veto of home elevation safety bill, see:  Christie’s pocket veto:No boost for house-lifting safety measure – but again, Sen. Smith is a hero and not asked about his toxic delay bill. – end update #2]

[Update/comment below]

I must say that I am enjoying the media feeding frenzy on the various Christie scandals, and the almost daily expansion in the scope of the abuses that are now finally being disclosed.

I was especially glad to read the expose on how Christie killed NJN TV – but, unfortunately, that story stressed the retaliatory nature of Christie’s decision to kill NJN, and it left out the loss of superb environmental reporting by Ed Rodgers. [I think Christie’s destruction of NJN had far more to do with a desire to avoid independent and critical news coverage than retaliation for coverage during the 2009 campaign.]

Gov. Christie is pleased that Ed is no longer there to hold the Administration accountable for its horrific environmental policy.

And the NJN story was followed by the Hoboken shakedown, which is a particularly egregious abuse and, as Tom Moran editorialized, far worse than Bridgegate.

But, the policy wonk in me is deeply frustrated by the inability of the press corps to connect the scandals to the policy agenda of the Christie administration.

The Hoboken shakedown is not an aberration, it is formal Christie policy.

What happened in Hoboken is consistent with Christie policy and the predictable outcome of the Christie policy agenda and approach to governing – an approach that the Romney VP vetting team called “a Mafia-esque approach to politics”.

The policy framework for the Rockefeller/Hoboken shakedown is this:

1) Executive Orders #2 (“regulatory relief”) and #3 (slash “Red Tape”)

Keep in mind that Hoboken Mayor Zimmer was pressured by Lt. Gov. Guadagno to expedite approval of a Rockefeller development.

Accordingly, planning and regulatory reviews are at the heart of the scandal.

For anyone who has been paying attention for the last 4 years, it is obvious that the Christie administration perceived those planning and regulatory review requirements as useless bureaucratic barriers to economic development.

The Christie administration engaged in an across the board war on so called barriers to economic development, dismissing them with slogans like them “job killing red tape”. Deregulation and privatization were core Christie policy objectives.

Gov. Christie set the policy agenda that led directly to the Hoboken abuse in the first hour of his first day in office, when he issued Executive Order #2 and Executive Order #3.

The Gov. has shown a similar disdain for land use planning and public involvement that the Rockefeller development team perceived as a barrier to their development scheme and windfall profits. For example, Christie killed the former State Plan and replaced it with an economic development strategy.

The Gov. hates all form of government plans and the pointed headed intellectual liberal bureaucratic planners who create them.

The Gov. hates public involvement in decision-making – that just delays corporate investment and profits.

In the Hoboken shakedown, Lt. Gov. Guadagno and DCA Commissioner were simply implementing the Gov.’s policy expressed in those orders and abandonment of any land use planning policy.

2) The role of Lt. Gov. Guadagno as the “Red Tape Czar” in secret business advocacy

Under EO #2 and #3, Lt. Gov. Guadagno was tasked as the Gov.’s “Red Tape Czar” and given extraordinary, non-transparent, and unaccountable powers.

[We are not opportunistic scandal mongers. We warned about exactly the absue we saw in Hoboken 4 years ago, see:  Christie Regulatory Czar Given The Power and Tools To Rollback Environmental and Public Health Protections].

She was empowered to meet secretly with business interests and work behind the scenes to promote those interests.

A key role was to pressure state agencies to expedite, streamline, and weaken regulatory reviews –

This is exactly what she was doing in pressuring Mayor Zimmer to expedite Hoboken’s approvals of the Rockefeller project.

The “Red Tape Czar” was doing exactly what the Gov. told her to do and advancing the Gov.’s policy.

3) Perception of Sandy Funds as Ribbon Cutting Promotional opportunties

Early on, it was obvious that Gov. Christie used the Sandy emergency response and recovery process as a political opportunity to promote his personal partisan political interests.

It was not just the “Stronger than the Storm” ad campaign – in the immediate wake of Sandy, the Gov. made scores of media saturated appearances at the shore in his famous fleece. He later  followed that up with dozens of ribbon cutting ceremonies and media events to distribute federal Sandy recovery funds.

The press conference and photo op were always more important than the policy or the people in need.

So, the idea of using Sandy money for political advantage was not some wild aberration – as leverage to pressure Hoboken mayor –  it was at the core of the Gov. Sandy response.

4) Lack of a post Sandy redevelopment plan

The Christie administration has failed to engage in a transparent planning process, to develop an overall Sandy recovery plan, and despite the Gov.’s repeated pledges, has shown little competence in timely distribution of Sandy recovery funds.

He has refused to even allow his Cabinet members appear at multiple legislative oversight hearings to explain what’s going on.

So, again, the idea of delaying Sandy recovery money as a cost of a hostage taking in Hoboken was not a big deal. Distribution of Sandy recovery  funds were delayed throughout the state.

No one would pick up on a few months of delay in Hoboken while the Lt. Gov. shook down the Mayor.

5) massive multibillion dollar corporate subsidies 

From the outset, the Christie Administration embarked on a policy of massive corporate subsidies. They provided over $2.1 billion to lure and retain corporations.

Twisting a Mayor’s arm to approve a corporate real estate development is a small act, when you’re willing to give away $2.1 billion taxpayer dollars to get the same result.

If you understand that policy context, none of this is a surprise at all.

It’s Christie engaged in “regulatory relief”, slashing “job killing red tape”; and promoting economic development and the corporate profits of his sponsors.

Its how he rolls.

[Update – readers, my apologies, the comment section is not working. Rob Benjamin submitted the following comment:

Yesterday’s Washington Post article about the pressure that NJ Democratic mayors are under to support Christie or lose what their towns need from the State is a very important corollary to this piece. It adds credibility to Dawn Zimmer’s claims, and diminishes the credibility of her detractors. I noted, as a lot of others have this morning, that Kim Guadagno never said in her statement to the press (not a press conference) that she would, like Mayor Zimmer, take a polygraph.

Lt. Gov. Links Sandy Aid To Support of Development Project Backed By Samson and Grifa

This is Exactly the Abuse We Alleged In HUD Inspector General Complaint

• “The word is that you are against it and you need to move forward or we are not going to be able to help you. I know it’s not right – these things should not be connected – but they are, she says, and if you tell anyone, I will deny it.”   ~~~ Christie’s Lt. Gov. Kim Guadagno (MSNBC)

• “I was emotional about governor Christie,” she wrote in a diary entry she provided that is dated May 17, 2013. “I thought he was honest. I thought he was moral. I thought he was something very different. This week I found out he’s cut from the same corrupt cloth that I have been fighting for the last four years.”  ~~~ Hoboken Mayor Dawn Zimmer (MSNBC)

Earlier this week, we released what should have been a news scoop.

We disclosed the fact that Gov. Christie had appointed his powerful political pal at the Port Authority, David Samson, as an auditor on federal Sandy funds and that former Christie Cabinet member and DCA Commissioner Lori Grifa was the manager of that project, see: Complaint Filed to HUD Inspector General on Christie Administration’s Sandy Recovery Program

Our complaint to the HUD Inspector General (IG) alleged:

Barnegat Bay Suffering “Insidious Ecological Decline”

DEP Fails to Enforce Needed Pollutant Reductions

The US General Accounting Office (GAO) just issued a major critical Report to Congress on the performance of a key Clean Water Act program. GAO found that new and stricter federal regulations, increased funding, and aggressive state oversight and enforcement are required if the Act’s  goals are to be met.

These findings are of direct relevance to NJ, particularly lack of EPA Region II oversight of the Christie Administration’s demonstrably failed voluntary approach, especially the Christie “Action Plan” for restoring Barnegat Bay.

Rutgers professor and national expert on Bay ecology Mike Kennish testified that Barnegat Bay was suffering an “insidious ecological decline”. He said that the Gov.’s plan was “clearly not working”, that DEP’s water quality standards have “no scientific validity”, and that DEP must “seriously ramp things up” (see: Barnegat Bay Suffering “Insidious Ecological Decline”)

The US GAO Report emphasized the need for new regulations and stronger EPA oversight of states:

• Unless key features are incorporated into the agency’s regulations—upon which future guidance can be based—states may include them in TMDLs only sporadically, if at all. Furthermore, without the force of regulations to direct states to develop TMDLs containing key features, TMDLs are likely to do little to attain water quality standards, particularly the designated uses of fishing, swimming, and drinking. EPA withdrew the 2000 rule before its effective date, and EPA officials have not taken action to reinitiate it, they said, both because the agency had wanted more time to assess the effectiveness of existing regulations and because rulemaking is costly and time-consuming.

• EPA has studied TMDL implementation and identified specific factors facilitating such implementation, but it has generally not placed on state grants conditions reflecting these factors for TMDL implementation plans and projects. In 2013, the agency issued guidance targeting nonpoint source management grant funds to states and projects that demonstrate some of these factors for effective TMDL implementation (e.g., targeting grant funds to projects where implementation plans have been developed and where external agency assistance is available). The guidance, however, neither requires states to follow these recommendations for selecting projects to fund, nor requires EPA regions to include these factors among programmatic conditions on annual nonpoint source grants.

For anyone interested in clean water, please read the whole Report, it provides an excellent overview of how the Clean Water Act works, see: Clean Water Act – Changes Needed If Key Program is to Help Fulfill the Nation’s Water Quality Goals

GAO examined:

(1) EPA’s and states’ responsibilities in the TMDL program, (2) what is known about the status of long-established TMDLs, (3) the extent to which long-established TMDLs contain key features that enable attainment of water quality standards, and (4) the extent to which such TMDLs exhibit factors that facilitate effective implementation.

In a nutshell, GAO findings repeat long known flaws in the TMDL program. GAO found that the TMDL program is not performing very well, states are not aggressively enforcing existing requirements, that federal funding and the EPA oversight role must be strengthened, and that new and strict regulations are required to control “non-point source pollution”.

Under the federal CWA, NPS pollution is subject to voluntary and ineffective controls:

Certain other factors, however, including those state TMDL coordinators considered most helpful, are beyond EPA’s and states’ existing authorities to put in place, particularly for nonpoint source pollution. Specifically, the Clean Water Act addresses nonpoint pollution through largely voluntary means and EPA does not have direct authority to require landowners to implement activities to reduce nonpoint source pollution. As such authority is absent and where additional effective state authority is also limited, the inability to find enough landowners willing to implement projects to reduce nonpoint source pollution has resulted in limited improvements in water quality for waters impaired by such pollution, according to our survey results.  The act does not provide states with the authority to require landowner implementation of projects to control nonpoint source pollution, and state TMDL coordinators cited a lack of authority as the main reason why nonpoint source TMDLs had not been implemented.

Thankfully, unlike the federal CWA, NJ has a suite of enforceable State laws, regulations, water quality standards, policies, and programs that can enforce NPS pollution controls.

DEP’s tools range from sewer service area planning, C1 300 foot wide stream buffers, storm water controls, and enforceable BMP, including site specific enforcement authority to reduce industrial and agricultural NPS pollution. But, these requirements go unenforced and are not implemented aggressively – as GAO noted in Pennsylvania:

For those states with some specific authority over nonpoint source pollution, according to state coordinators, the authority may be limited in scope or not routinely used. For example, nearly 1,000 Pennsylvania TMDLs identify sediment as impairing water quality, and runoff from farms is the source of sediment pollution for many of these TMDLs. Pennsylvania law requires that all farms have a plan to control or reduce sediment entering waterways from fields and animal use areas over a certain threshold. Nevertheless, officials said, the state’s Department of Environmental Protection has never enforced this law and required farms to have, and implement, these plans, even though the law has been in effect for more than 40 years. The department’s manager of conservation programs told us that the department has not been strict with the agricultural community over the years. Of the nearly 1,000 portions of water bodies identified as impaired by sediment, 2 have been restored, according to data from EPA’s Assessment, TMDL Tracking and Implementation System.

The GAO Report’ findings are of relevance to the stalled effort to restore water quality across NJ, most particularly with respect to the Christie Administration’s highly touted (prior to Sandy) and failed Barnegat Bay 10 Point Management Plan.

The GAO Report focused on the Act’s “Total Maximum Daily Load” (TMDL) program, which is designed to clean up polluted waterbodies that don’t meet water quality standards. These polluted streams, rivers and lakes are designated as “impaired”.

To improve the condition of water bodies that states identify as impaired, the Clean Water Act requires states to develop pollutant budgets, known as “total maximum daily loads” (TMDL), generally for each pollutant impairing a water body. A TMDL is essentially the numeric target for a specific pollutant, reflecting the maximum amount of the pollutant that a water body can contain and still be considered in compliance with water quality standards, and is described in a report that may also provide a general plan for how this target is to be achieved in the water body. According to EPA documents and officials, the agency’s regulations refer to a TMDL generally as a calculation or formula used to address one pollutant in one particular part of a water body, but as the program has evolved, the concept of a TMDL has become more expansive. Overall, the goal of developing a TMDL is to end up with a plan, including the actions needed, to meet water quality standards and restore impaired water bodies. After states develop TMDLs, they take the lead in implementing these plans, and it may take many years to see actual improvements in water quality.4

But States failed to enforce the TMDL requirements of the Act, which led to a series of lawsuits by environmental groups seeking for force states to comply with the Act and cleanup polluted waters:

According to EPA officials, states took little action under the Clean Water Act’s requirement to develop TMDLs until the mid-1990s, when citizen groups sued EPA in several states for not doing so in the absence of state action. Since that time, states developed nearly 50,000 TMDLs, in part as a result of EPA efforts to meet the schedules in consent decrees stemming from the lawsuits, according to EPA officials.6 EPA approved about 35,000 of these TMDLs more than 5 years ago, and, according to EPA officials, states should have implemented these TMDLs to some extent by the time of our review. For purposes of this report, we define TMDLs approved by EPA through December 31, 2007—that is, TMDLs developed more than 5 years ago—as long-established TMDLs.

NJ has been a laggard in enforcing the Act’s TMDL requirements. Still, NJ has hundreds of “impaired” waterbodies (see if you can find the needle in the haystack on DEP’s TMDL website).