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EPA Effectively Admits Legal Error 

Withdrawn Permit Moots Dupont’s Appeal

Unclear How Ecological Impacts and USFWS Concerns Will Be Addressed

The permit appeal process should not be used as hammer by Dupont to force EPA concession and it is not a permission slip for EPA to negotiate a cleanup plan Dupont will support behind closed doors. ~~~ Bill Wolfe, 8/30/13

Keep in mind that this withdrawal occurred after months of closed door negotiations with Dupont in response to Dupont’s legal appeal of the final permit last year. (see

• EPA Injects Further Delay In Dupont Mercury Cleanup of Pompton Lake

That chronology strongly suggests that EPA is folding and relaxing cleanup requirements, not merely correcting the minor procedural defect Dupont alleged. If the EPA intent was to remedy a procedural defect, they could have re-proposed the permit months ago.

From our friends at PEER:

Press Release 

For Immediate Release:  Thursday, May 1, 2014

Contact:  Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337 

EPA Badly Fumbles Jersey Pompton Lakes Toxic Cleanup

Permit Withdrawal Throws Eco-Safeguards into Doubt While Adding Years of Delay 

Trenton — The U.S. Environmental Protection Agency is making one of the nation’s longest toxic removal operations even longer with the announcement that it is withdrawing its permit for the heavily contaminated Pompton Lakes area cleanup plan.  By going back to the drawing board, EPA raises serious doubts about both the scope and schedule for already 25-year old remediation of the former E.I. DuPont De Nemours & Company ammunition plant, according to Public Employees for Environmental Responsibility (PEER).

After decades of ineffective state-overseen cleanup operations, EPA finally took over the cleanup operations last year.  EPA’s initial plan, however, was severely criticized by the U.S. Fish & Wildlife Service for failing to address the fact that “significant levels of contamination will remain” from “mercury, which in certain forms is highly toxic and biomagnifies via the food web” flowing downstream from the old factory site.  In trying to rewrite its initial plan on the fly, EPA appears to have ensnarled itself in both substantive and procedural knots.  In yesterday’s press release, EPA stated:

“The EPA had previously finalized a plan, which was contained in a permit requiring cleanup of the Acid Brook delta along with certain other areas in the lake, but additional information including results of recent sampling in Pompton Lake have provided EPA the basis for revising that permit. The new permit requirements are currently being developed by EPA, with a goal of proposing a draft permit by the fall.”

“This is a major setback for the Pompton Lakes community as EPA’s stumble will prolong toxic removal work for at least two years,” stated New Jersey PEER Director Bill Wolfe who had pressed for the FWS review.  “Behind closed doors, EPA has been negotiating with DuPont to shrink both the size and thoroughness of the required cleanup which DuPont will have to pay for.”

Among the issues EPA will have to re-address are –

• The size of the cleanup which had grown from an initial 26 acres to embrace 40 acres;

• How downstream migration of chemicals will be handled; and

• What form of wildlife and ecological monitoring will occur to track ultra-high concentrations of mercury, lead, copper, selenium, zinc and other chemical in the food-chain and sediments,

“This raises questions far beyond Pompton Lakes about the public health safeguards for more than 3,000 similarly contaminated sites across the country for which EPA is responsible,” added Wolfe, noting that far more sites are covered by the less rigorous Resource Conservation and Recovery Act (RCRA) than the better known Superfund program even though many RCRA sites, such as Pompton Lakes, are just as or even more contaminated than Superfund sites.  “This has all the earmarks of DuPont pulling strings behind the scenes.”

###

Read the EPA press release

http://www.peer.org/assets/docs/epa/5_1_14_EPA_Pompton_News_Release.pdf

See U.S. Fish & Wildlife Service critique

http://www.peer.org/news/news-releases/2012/02/21/federal-wildlife-agency-flays-jersey-pompton-lakes-plan/

Look at toxic migration downstream

http://www.peer.org/news/news-releases/2012/01/26/dupont-pompton-lake-pollution-may-be-headed-downstream-/

Visit EPA’s Pompton Lakes web-center

http://www.epa.gov/Region2/waste/dupont_pompton/index.html 

View Pompton lakes and other Jersey toxic sites still in regulatory limbo

http://www.peer.org/news/news-releases/2012/03/05/epa-discloses-nine-more-superfund-eligible-sites-in-new-jersey/ 

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

[Important update in text below: 5/2/14]

Update: 4/30/14 – Philadelphia Inquirer story: NJ water quality panel ends long hiatus:

“It’s good to have them back,” said Bill Wolfe, a former DEP official and director of New Jersey Public Employees for Environmental Responsibility.

But from the meeting’s start, he and other advocates made clear that they would give the panel close scrutiny, fearing that industry and special interest groups would wield undue influence on its proceedings and that it would be slow to set certain maximum contaminant levels. […]

Wolfe challenged the institute to push to require such treatments throughout the state, saying they could also help remove other emerging and potentially dangerous contaminants. ~~~ end update]

The NJ Drinking Water Quality Institute (DWQI) met today after almost 4 years of forced silence (see agenda).

We will post the minutes and the presentations today when they become available on DEP website.

[Update: 5/1/14 – The presentation on PFC’s by DEP scientist Gloria Post, PhD was just posted at DEP website.

The Final Report on Occurrence of PFOA in drinking water (aka as “the 2009 Report”) was just posted. It had been withheld by DEP for years, so perhaps the worm is turning?

Aside from the occurrence data, I’ll highlight this from the Report (@ p.2)

PFCs are removed from drinking water by granular activated carbon and reverse osmosis (Rahman et al., 2014), while the standard treatment processes used at the sites included in the 2006 and 2009 studies do not effectively remove PFCs. Data on PFCs in raw and finished water from several sites included in the 2006 and 2009 studies confirms that PFC concentrations are generally not decreased in the finished water (Post et al., 2009, Post et al., 2013b). …

In addition, to better understand treatment options available for the removal of unregulated organic contaminants, the Department is studying the effectiveness of granular activated carbon (GAC) removal technology in removing unregulated contaminants, including PFOA and PFOS, in pilot studies at two water systems that use groundwater: Fair Lawn Water Department (Bergen County) and Merchantville-Pennsauken Water Commission (Camden County). These pilot studies are currently ongoing.

The DEP should immediately finalize those pilot studies and begin mandating GAC at targeted systems with high vulnerability to contamination by unregulated organic chemicals.  – end update]

The last time the DWQI met was on September 10, 2010.

At that meeting, the Health Effects Subcommittee made recommendations involved in setting strict new drinking water regulations for two toxic chemicals  – i.e. PFOA and hexavalent chromium – strongly opposed by the NJ Chemistry Council and other politically powerful NJ polluters, like Dupont.

(for my take on that meeting, see: Total Collapse at the NJ Drinking Water Quality institute).

(for additional analysis, also see a followup post: Running the Regulatory Gauntlet – A Dispatch From the Weeds).

After that September 2010 meeting, DEP Commissioner Martin prohibited the DWQI from meeting – banished  to the regulatory wilderness – and totally ignored prior DWQI recommendations for DEP to update and develop dozens of more protective MCL’s.

Since then, there has been little doubt that Martin’s meeting ban was driven by strong chemical industry opposition.

Today, DEP staff confirmed that Commissioner Martin was concerned about the so called “impacts” of the DWQI’s recommendations – that’s bureaucratic code for industry compliance cost and ratepayer impacts.

DEP staff also stated that they were currently conducting “cost benefit analysis” on prior science and health based DWQI MCL recommendations for 2 contaminants, radon -222 (February 2009) and 1,2,3 trichloropropane (March 2009)

Today’s meeting had a celebratory vibe, sort of like a family reunion of drinking water professionals – the room was packed with a dozen or so former and current professionals involved with the work of the DWQI.

The media was there as well as a result of the huge south jersey controversy over drinking water wells contaminated with a class of chemicals  called PFC’s, for “Perfluorinated chemicals”. PFC’s are not removed by conventional drinking water treatment plants.

Paulsboro has the highest levels (150 ppt, PFNA) of these chemicals detected in drinking water in the world. That level is 7.5 TIMES higher than DEP’s health based Guidance Value of 20 ppt for PFNA.

A DEP pilot study found that PFC’s could be removed by granular activated carbon (GAC) treatment systems to non-detectable levels. [Clarification – GAC treatment is installed at NJ American Logan plant and being installed at Pennsgrove, it is not a pilot study.]

Based upon that pilot study [NJ American plant data], the DWQI should immediately recommend that DEP impose treatment requirements mandating GAC for public water systems where PFC’s have been detected.

In addition to the south jersey PFC controversy in Paulsboro and other Gloucester County towns, we assume media will focus on Commissioner Martin’s letter to the DWQI, tasking them with developing work plans for the development of drinking water standards (MCL’s) for 3 PFC chemicals. So, I’ll mention a few significant points likely to stay below the media radar:

1. Attempt to limit public involvement to science, and discourage comment on policy or regulation

New Chairman Dr. Keith Cooper of Rutgers started off on the wrong foot –

Aside from forgetting to introduce all the new DWQI members, he immediately said he would focus the DWQI deliberations solely on science and data, not policy. He then said he would be strict in not allowing the public to discuss policy either, pleading to “strictly require that policy stay somewhere else”.

I called him out on that, saying that his attempt to wall off the science from the policy debate and regulatory context was at best naive, and at worst an abdication of professional responsibility and an attempt to limit public discussion.

Cooper assured me that he was not naive and that was not his intention. We will see.

[Note: I see that Dr. Cooper has research interests in ecotoxicology. I wonder if he is aware of the inside story on DEP’s proposal, and subsequent withdrawal, of wildlife based water quality standards, due to opposition by the NJ Chemistry Council. See the Chemistry Council’s letter to DEP that proves this back door abuse. For all the other documents, EPA, DEP, Chemistry Council’s powerpoint, et al, see this, where we tell the full story.]

2. Cover story for why DWQI didn’t meet in 4 years

The new Chairman, Dr. Keith Cooper from Rutgers, was asked point blank by Tracy Carlucchio of Delaware Riverkeeper why the DWQI had not met in 4 years.

Cooper explained the Christie Administration’s cover story, which is that:1) the Christie Administration was trying to get new members appointed and 2) environmental disasters like hurricanes Irene and Sandy diverted DEP staff.

He didn’t fool anyone and in the process sullied his reputation.

3. New industry friendly process for input to DWQI deliberations compounds flaws in DEP Stakeholder process

Chairman Cooper and a DEP staffer vaguely outlined what they called a “new process for public input”. Cooper indicated that this would include new procedures for the various Subcommittees to invite expert technical input. This input would not be a matter of public record.

Cooper did not present any transparency, accountability, scientific integrity,or ethical safeguards on this new process, such as controls over scientific bias, ethical conflict of interest, or abject lobbying under the guise of scientific deliberation. (see: Should the Chemical Indsutry Have A Role in Setting Your Drinking Water Standards?)

Cooper rejected my request that he do so, modeled on Federal Advisory Committee Act (FACA) restrictions.

As I previously wrote about scientific integrity at DEP’s Science Advisory Board and recommended to Commissioner Martin regarding regulated industry influence on DEP, those FACA like safeguards are essential:

In light of this episode, I ask for your support towards reforms to make all DEP advisory group deliberations are open and accessible to the public, transparent, accountable, objective, and subject to ethical standards, as provided by the Federal Advisory Committee Act (FACA).

I strongly suspect that the new process is a back door for industry pseudo-science by hired guns and related political opposition to the DWQI work.

The DWQI’s new processes would be in addition to DEP’s by invitation only “Stakeholder processes” prior to regulatory proposal pursuant to Gov. Christie’s Executive Order #2.

The policy objective of these pre-proposal “Stakeholder” review procedures mandated by EO #2 is based on the false premise that:

New Jersey’s ability to leverage these assets to produce growth and opportunity is being challenged by chronically high costs and regulatory burdens that have resulted in New Jersey’s consistently low rankings nationally on regulatory burdens, costs-of-doing business and similar such economic measures making New Jersey the worst business climate in the nation;

To remedy that false premise, the policy objective of “Stakeholder” pre-proposal review is to provide “immediate regulatory relief”:

The NJ Chemistry Council and powerful polluters with billions of dollars at stake like the Dupont corporation want “immediately regulatory relief” and think many DWQI recommendations amount to “unworkable, overly-proscriptive (sic) or ill-advised” support for DEP regulations.

The alleged rationale for the new DWQI process was to promote transparency and openness. I don’t buy it.

4. New emphasis on “cost benefit analysis” is inappropriate and illegal

Twice, DEP staff stated that DEP was considering economic costs and was conducting cost benefit analysis.

This is not authorized by the NJ SAfe Drinking Water Act. Under that Act, DEP must based MCL decisions on 3 factors – medical, scientific and technological feasibility – all of which are based in science and engineering, not economics and cost-benefit analysis based regulatory frameworks.

5. A huge backlog of prior DWQI recommendations for updating MCL standards for dozens of chemicals is being ignored

I was present and spoke at the last prior meeting back on September 10, 2010. Here’s what I said:

I also blasted the DWQI for failing to hold DEP accountable for not implementing several prior DWQI recommended standards (known as MCL’s for “Maximum Contaminant Levels”) for numerous toxic chemicals, including:

• 1) the October 2005 DWQI perchlorate MCL recommendation which was proposed by DEP as an MCL in March 2009 . DEP Commissioner Martin claimed that he deferred action on adopting DEP’s proposed MCL because allegedly EPA would adopt a MCL “this summer.”. Summer is over and EPA failed to act. So where is DEP MCL?;

• 2) the March 2009 DWQI recommeded updates to MCLs on multiple hazardous chemical contaminants to reflect current science;

• 3) the status of the February 2009 DWQI recommended radon MCL;

• 4) the stauts of the May 2010 policy white paper on 500+ unregulated contaminants and treatment strategy (In response, I was told by DEP staff that action had to wait until pilot studies were completed. When I asked about the status of the pilot studies, I was told that the 2 pilot systems had not even installed the carbon filter treatment technology and that DEP felt that they could not push this process. In other words, this is on a slow road to nowhere – click here for complete details, including prior 2004  ”Interested Party Regulatory review“);

• 5) the status of addressing the findings on uranium in drinking water sampling in the Highlands presented on May 7;

• 6) health risks caused by high concentrations of chemical contaminants in water supply source waters, given current drought conditions. During current drought conditions, wastewater effluent makes up 100% of the flows in the Passaic/Pompton Rivers above water supply intakes. Millions of people are drinking increased and unsafe concentrations of hundreds of chemical pollutants.

All of the prior DWQI MCL recommendations, and the DEP White Paper on Unregulated Contaminants are being ignored and swept under the rug.

That is an unacceptable outrage that I challenged the new DWQI member to respond to.

6. Failure to take a precautionary approach to unregulated chemicals, based on best available technology

In addition to the pilot GAC study for PFC’s in south jersey, there are many other public water supply systems that should be required to install GAC in addition to conventional treatment to remove hundreds of chemicals known to be present in drinking water coming out the tap (see bullet #4 above).

Even the USEPA has recognized limitations to the current chemical specific approach to regulating drinking water quality  – to address chemicals as groups, rather than 1 at a time – and the benefits of a different and precautionary framework, see: Drinking Water Strategy).

DEP scientists were ahead of this curve years ago – the DWQI must remain engaged in this policy and regulatory debate.

We’ll keep you posted, but don’t hold your breath –  the next meeting of the DWQI isn’t until September.

Notwithstanding the provisions of any law or regulation to the contrary, an amount not to exceed $147,500,000 of cost recoveries from litigation related to the Passaic River cleanup shall be deposited in the General Fund as State revenue, subject to the approval of the Director of the Division of Budget and Accounting.  ~~~ Gov. Christie’s Proposed FY’ 15 DEP budget, p. D-125

“This is terrible policy,” said Brad Campbell, a former state Department of Environmental Protection commissioner who is now an environmental lawyer.

He said it conflicts with “the clear language” of New Jersey’s Spill Act, which enables the state to seek compensation directly from polluters and it means significant natural resources will never be restored.

“And it’s bad fiscal policy, using another nonrecurring and completely unpredictable revenue stream to mask a structural deficit,” Campbell said.  ~~~ Associated Press 4/27/14

[Update: 5/5/14 – Tom Johnson at NJ Spotlight wrote the story today, with a top ten Tittel quote:

“There’s no blood left in the stone”  ~~~  end update]

The Assembly Budget Committee reviewed Gov. Christie’s DEP’s proposed FY 15 budget today.

The Senate will review it tomorrow at 1 pm.

A budget is more than a financial document: it establishes priorities and essentially determines which policies will be implemented and what laws will be enforced.

So, the legislature’s power of the purse can be a powerful oversight and accountability tool.

But, when it comes to the critical details of the budget and the performance of the DEP programs funded, the Legislative branch is outgunned and unable or reluctant to use to the budget process as a forum to oversee the Gov.’s implementation of policy.

Nonetheless, year after year I go to DEP budget hearings expecting legislators to hold the DEP accountable and criticize policy  – and year after year I am disappointed.

To the contrary, the only policy concerns that legislators seem to express are from the business community about over-regulation, bureaucratic red tape, of excessive permit fees.

Today, was mostly in keeping with that pattern.

But Democrats on the Assembly Committee did blast DEP Commissioner Martin for failure to propose a stable source of funding for open space acquisition and for the proposed diversion of $147.5 million from the Passaic River toxic settlement agreement to the General Funds. (see above budget language and former DEP Commissioner Campbell’s harsh criticism, with which I completely agree).

A new issue emerged when DEP Commissioner Martin said that funds from a $161 million Passaic settlement escrow account were just released and made available. It was unclear if this was in addition to the $147 pot of money.  So the total diversion of Passaic River cleanup money could exceed $300 million!!!

I’ll let the main stream press cover those two issues.

Instead, I will briefly mention a few other less prominent issues that were addressed and those that weren’t.

For those that like to get into the weeds, here are the original documents – the OLS analysis is helpful and the DEP response to OLS questions is quite revealing, so I suggest you go there first:

• Here is the FY 15 State budget;
• here is the OLS analysis of DEP’s budget;
• here is DEP responses to OLS questions;
• here is DEP Commissioner Martin’s testimony; and
• listen to the hearing here.

1. Climate change was ignored completely – aside from a few casual rhetorical references to prior Clean Energy Fund diversions and exit from RGGI. That is just unforgivable.

2. Legislators allowed Commissioner Martin to dodge the issues regarding failure in renewable energy by claiming that was BPU’s job.

3. DEP spun a tall tale in response to OLS questions about coastal vulnerability assessment and adaptation planning – many of the criticism I have made here several times were addressed – you need to read it to believe it. Those interested can start on page 8 – I think many people will be surprised to learn about this stuff.

4. A lot of important issues were completely ignored.

Martin got no questions – NONE – about public health, environmental justice, land use, Highlands, Pinelands, Barnegat Bay, Fenimore Landfill, infrastructure (other than Sandy damage), chemical plant safety, rail safety, Hudson River oil shipments, a proposed new oil pipeline thru the Highlands, Off shore oil and gas exploration, off shore LNG export facilities, science, monitoring, environmental data, or regulatory policy.

[Correction – Martin got a softball question on Fenimore from Assemblyman Bucco. It was such a softball, I didn’t even consider it a question. Sorry about that error.]

There was not one question about how the Gov.’s pro-business Executive Orders and regulatory policies effected transparency, permit reviews, enforcement, or the overall level of protection of human health and the environment.

There was no interest in DEP’s role in the Hoboken – Rockefeller development scandal.

5. Assemblyman Cryan raised a couple of good issues about DEP’s role in Sandy. In response to Commissioner Martin’s testimony on the $100 million Hazard Mitigation Grant Elevation Program, Cryan said that 18 months after Sandy:

It is stunning that just 1 tenth of 1% of applications have been approved

[Clarification – Cryan mispoke on the math – 26 of 2,600 applications have been approved. That is 1%, not a tenth of 1%.]

Cryan also raised serious concerns about DEP’s lack of integrity monitors for Sandy related projects overseen by DEP.

6. There were no questions on drinking water and the Drinking Water Quality Institute.

7. Assemblyman Singleton carried the water of the chemical industry and criticized DEP air and water permit fees and questioned whether the NJ TCPA program was necessary given “duplication” of federal RMP program.

Assemblyman Burzichelli jumped in to agree.

Surprisingly, Commissioner Martin did a reasonably good job in defending these programs as national models in addressing chemical risk management.

Martin did make some troubling comments about reconsideration of the fee structure.

Worse, Martin advocated that

“I’d like to see an overhaul of the EPA federal regulations under the clean air act”

That radical comment went without notice.

8. OLS flagged another diversion of $6.2 million from the Recycling Fund to the General Fund.

9. OLS flagged the fact that DEP plans to try to use federal HUD CDBG funds as the 20% State match requirement for federal Sandy infrastructure funding – lots of money involved in HUD rejects this move.

10. OLS flagged another Port Authority sweetheart deal.

The PA provided $13.8 million to DEP for reconstruction of piers at Liberty State Park – were David Samson, Bill Baroni, and Wildstein involved in this too?

Let’s see how the Senate engages tomorrow.

DEP Conducts Press Stunts While Bay Suffers “Insidious Ecological Decline”

DEP Scientist Misrepresents Declining Ecological Health of the Bay

DEP held another “Barnegat Bay Blitz” litter cleanup on Friday – like Christie Town halls – with press in tow.

Remarkably, the Asbury Park Press quoted Commissioner Martin in this absurd headline:

• Gov. Christie wants the restoration of Barnegat Bay to be part of his legacy

Legacy? I’m reminded of Tim Weiner’s great book on the history of the CIA, “Legacy of Ashes”

As we’ve written numerous times (see this and this), Gov. Christie’s record on the Bay is awful:

• Christie vetoed a bill that would mandate pollutant reductions required to restore the health of the bay;
• Christie vetoed a bill that would have authorized counties to create and fund storm water management controls;
• Christie’s DEP rolled back protections that allow sewer service and dense development in thousands of acres of environmentally sensitive lands in the bay’s watershed, increasing pollutant loads instead of decreasing them and further reducing fresh water flows into the bay;
• Christie killed the Corzine DEP’s Clean Water Act permit to require cooling towers at Oyster Creek nuclear power plant;
• DEP got caught trying to delist the Bay from the Clean Water Act’s “impaired waters list” to avoid a legal cleanup obligation – a 7/27/12 Asbury Park Press editorial called the move “monumentality wrong headed, simply flabbergasting” (see: Despair over “impaired” list);
• Christie aggressively promoted and streamlined rebuild after Sandy, ignoring opportunities to improve land use and storm water management practices; and
• DEP Commissioner Martin issued an Order that deregulated reconstruction of public infrastructure and private development.

The bottom line is that while the ecological health of the Bay has continued to decline, Gov. Christie has blocked real reforms and actually taken steps to make conditions worse.

By any reckoning, that is a horrible record on Barnegat Bay – is that the kind of legacy “Birkenstock Bob” Martin is spinning?? (and BTW, Martin denied and lied about making that smear – either that, or Constable lied. But why would Constable lie about something like that?)

But aside from Commissioner Martin’s all too predictable spin, another DEP PR stunt, and the over the top legacy claim, perhaps the worst part of the whole thing was DEP scientist Tom Belton’s misrepresentation of the science on the health of the Bay:

Tom Belton, research scientist at the state DEP Office of Science and the research coordinator for the Barnegat Bay Research Initiative, said the bay is a suburban bay, so it is not a pristine ecosystem.

“The data that we’re collecting indicates it’s not in really heavy decline,” Belton said. “There’s a lot of really good fish here … the water quality is manageable. … A lot of people’s perceptions of the bay are based on observational — jelly fish, that’s all people want to talk about.”

It is hard to know where to start in responding to that line of bullshit.

I expect something like that from the Commissioner or the DEP Press Office, but it is shocking coming from a so called “DEP research scientist” (full disclosure: I have worked with Belton while at DEP).

Whether or not the bay is “suburban” or “pristine” – whatever those terms mean, they’re not science – is irrelevant to the ecological metrics and water quality standards that are supposed to be considered under the Clean Water Act to assess the ecological health of the Bay.

Similarly, I have no idea what “a lot” of “really good fish” mean, nor is the term “manageable” a valid term of law or science to describe water quality.

Worse, Belton crafts  a red herring to dismiss those who have warned about the declining health of the bay, implying that those assessments are based on “perception” and narrowly focused on “jellyfish”.

Belton must know that exactly the opposite is the case – it is DEP that is fixated on seriously flawed water quality standards and assessment methods that ignore numerous indicators of ecological health and paint a false picture or the health of the bay.

All while DEP has failed to properly interpret and enforce the current narrative nutrient criteria with respect to eutrophication, water quality, and ecological health.

Rutgers professor Mike Kennish, perhaps the foremost expert on the Barnegat Bay ecosystem, testified to a Special Joint Senate and Assembly Hearing of the Legislature about all that back on August 13, 2012:

Kennish went into detail to explain why the DEP’s current water quality standards and assessment methods were flawed. First, because they rely exclusively on one indicator, dissolved oxygen (DO).

DO monitoring is flawed for at least 2 reasons:

1) because DEP only samples once per day in too few locations, which fails to capture large swings in DO levels throughout the day. This gives extremely misleading results, and DEP has known this for over 15 years;

2) because DO fails to reflect ecosystem health, particularly for critical indicators like submerged aquatic vegetation, fish and shellfish populations, and ecological relationships.

In response to a question by Chairman Senator Smith about whether the Bay was “impaired” under the Clean Water Act and should be required to undergo a TMDL, Kennish emphasized – with 100% scientific certainty – that the entire Bay currently is impaired and has been impaired since the 1980′s.

Kennish testified that: a) the Bay is experiencing an “insidious ecological decline”; b) that what DEP is doing is “clearly not working”; and c) that DEP water quality monitoring, standards and assessment have “no scientific validity” with respect to accurately portraying the ecological health of the Bay (hit this link for Kennish testimony, et al).

Kennish was critical of Gov. Christie’s 10 Point Management Plan and admonished DEP, concluding that they need to “seriously ramp things up”.

We wrote to EPA demanding federal intervention to force DEP to conduct a TMDL based on Kennish’s research and the DEP – EPA TMDL MOA, urging EPA to withhold federal Clean Water Act funding to NJ or conduct a TMDL themselves. 

So, for Belton to imply that critics are driven by “perception” and over-reliance on jelly fish is flat out misleading and junk science.

Here are the ecological indicators Rutgers evaluated – and they are all in decline and far broader than jellyfish:

The ecosystem-based study (“Assessment of Nutrient Loading and Eutrophication in Barnegat Bay-Little Egg Harbor, New Jersey in Support of Nutrient Management Planning”) is the culmination of a multi-year, interdisciplinary research effort. The project characterized and quantified the estuary’s watershed nutrient loading, physical and water quality properties, biological indicators, and impacts.

“This study paints a rather bleak picture of the ecological health of the Barnegat Bay-Little Egg Harbor Estuary,” explains Mike Kennish. Barnegat Bay-Little Egg Harbor is highly eutrophic due to years of nitrogen and phosphorus enrichment. This estuary has experienced low dissolved oxygen concentrations, harmful algal blooms, heavy epiphytic loading, loss of habitat, diminishing hard clam abundance, and other detrimental effects. Since 2004, eelgrass condition has continually declined to a low point in 2010, and macroalgal blooms occurred frequently. The loss of seagrass beds is due in part to light reductions, and has a secondary impact on animal populations inhabiting them.  Barnegat Bay-Little Egg Harbor is an estuary in ecological decline.

An index of eutrophication developed by Ben Fertig quantifies the overall condition of eutrophication in the estuary on a scale of 0 to 100, with 100 being the best. This index integrates 74,400 observations among 85 variables for 20 indicators in 6 components and is calculated based on comparisons to ecologically relevant thresholds and is weighted based on multivariate analyses. “Unfortunately, condition has gotten worse over time in much of the estuary,” notes Fertig. Eutrophication condition declined 34% and 36% in the central and south segments from 73 and 71 in the 1990s to 48 and 45 in 2010, respectively. Index scores for overall eutrophication condition are lowest in the north segment (37 during 2010), which has already undergone severe degradation, yet “the silver lining may be modest improvements in the north segment over time,” adds Fertig. Eutrophication Index values in the north segment rose from 14 in 1991 to 50 in 2009, but sharply dropped down to 37 in 2010.

It’s bad enough I have to call out this kind of bullshit from the DEP press office – but it is another kettle of fish and truly sad when the spin comes from the so called “research scientists”.

Gov. Christie Personally Directed Series of DEP Meetings to Discuss “economic development in Hoboken”

Hoboken Mayor’s role in the Sandy aid shakedown was related to local development approvals of Rockefeller

But DEP regulatory approvals for Rockefeller are completely ignored

The Rockefeller Group was worried about the Department of Environmental Protection (“DEP”) and their granting of permits, and someone from the Rockefeller Group mentioned that Mayor Zimmer had met with Commissioner Bob Martin from the DEP and Commissioner Martin painted a bleak picture. Reiner did not recall there being a specific request from the Rockefeller Group during this meeting.  ~~~ March 11, 2013 meeting, per Reiner interview

Do reporters think it is appropriate and standard operating procedure for the Gov. to have his political arm (Office of Intergovernmental Affairs) arrange a series of private Commissioner and high level DEP meetings with a major corporation like the Rockefeller Development Group to discuss DEP regulatory approvals for a billion dollar development project?  ~~~  Bill Wolfe

[Update below]

There are two primary events that are driving the various Christie scandal investigations: 1) the GWB lane closures; and 2) the alleged “shakedown” of Hoboken Mayor Zimmer.

Investigations of those two events have generated many secondary spinoff stories, including Gov. Christie’s use of the Port Authority as a “political piggy bank”; ethical conflicts and revolving door abuses by former Port Authority Chair David Samson and Lori Grifa of Wolff & Samson law firm; and the numerous tales of political intrigue and personal mini-dramas of the Christie Administration players that have emerged as the inside story has been revealed.

Of the two, the Hoboken shakedown is clearly the more serious criminal abuse.

So today – especially given our DEP experience – we want to focus on critical and under-reported aspects of the Hoboken shakedown as it is told in the Mastro Report: the highly revealing and crucial role of DEP in the scandal.

The interview summaries for that Mastro Report reveal significant details about the Gov.’s Office, the Rockefeller Development Group, and corrupt politicization of DEP regulatory oversight.

Tons of media stories have been written about the Mastro Report and the alleged “shakedown”, or  quid pro quo at play in Hoboken.

That quid pro quo went something like this: Mayor Zimmer has alleged that Sandy aid to Hoboken was used as blackmail to pressure her for support  – in the form of local development approvals – for the proposed billion dollar Rockefeller development.

Gov. Christie so called “exoneration”, i.e. the Mastro Report, spends a lot of time on this issue.

Mastro interviewed 75 Christie Administration officials. The Report includes “summaries” of those interviews.

Of that total interviewed, 9 were DEP officials, 1 was from the NJ Environmental Infrastructure Trust, and 1 was a former DEP Assistant Commissioner now in Gov. Office. So 11 of the 75 people interviewed were involved in environmental approvals. 

Mastro interview summaries reveal that there were a series of 3 meetings with Rockefeller and DEP regarding “regulatory approvals for Hoboken development” and “permits”.

Those DEP meetings were arranged at the direction of Gov. Christie to explore “economic development in Hoboken” (see Constable interview summary @ page 8 re: Feb. 25, 2013 email from Renna):

On or about February 25, 2013, Constable received an email from Christina Renna in the Governor’s Intergovernmental Affairs office stating, among other things, that the Governor met with Mayor Zimmer the previous week, and that the Governor wanted Constable and Martin to meet with Mayor Zimmer to discuss economic development in Hoboken.

The DEP meeting was set up by the Gov.’s Office of Intergovernmental Affairs (IGA) (see Renna and Constable summaries).

The Rockefeller Development Group was invited by IGA to the March 5 DEP meeting: (Renna)

Renna believed that Kelly asked Renna to set up the meeting between DEP Commissioner Martin and Community Affairs Commissioner Constable, and Mayor Zimmer. …

Prior to the meeting on March 5, Mowers sent an email to Renna asking if it was OK for the Rockefeller Group to be part of the meeting with Mayor Zimmer and the Commissioners.  Renna recalled that she did not know who the Rockefeller Group was, and the only reason she remembers the Rockefeller Group now is because that Renna went to Kelly to ask who the Rockefeller Group was. Renna recalled Kelly said that Lori Grifa represented the Rockefeller Group. Renna can not recall whether Kelly said whether it was or was not a problem for the Rockefeller Group to attend the meeting,  but Renna said that she would not have made the decision for the Rockefeller Group to participate in the March 5, 2013 meeting without clearing it through Kelly.

There is a direct tie to Gov. Christie and the issue of endorsement (Renna @ page 19):

Renna recalled emailing David Glass (DEP Deputy Chief of Staff & Legislative Liaison) to set up the meeting between DEP and Mayor Zimmer, but after reviewing the email exchange to that effect, Renna surmised that the meeting referenced in Renna’s email to Glass (wherein Renna says, “Late last week, Governor Christie met with Mayor Zimmer of Hoboken to discuss a whole host of issues”) was probably the February 2013 meeting in which the Governor specifically asked Mayor Zimmer to consider endorsing. Renna said that she did not attend the meeting.

• The March 5 DEP meeting – “Birkenstock crowd”

There was a March 5 meeting with DEP Commissioner Martin, DCA Commissioner Constable, Gov. Office (Mowers), Rockefeller Development Group, and Hoboken Mayor Zimmer.

Remarkably, Martin somehow can’t recall the name of the “two or three others” at the meeting and the “consulting firm” (i.e. Rockefeller Development Group). But Martin DID recall this – note how Martin downplays and makes anything related to Rockefeller seem to come from Mayor Zimmer, despite the fact that Rockefeller was invited by the Gov.’s Office:

Martin recalled that Mayor Zimmer then mentioned that the Rockefeller Group potentially could play a role in putting money into the build out of the project. He recalled that discussion of the Rockefeller Group was not long, but that the Mayor mentioned the Rockefeller Group’s construction on either the north end or the south end of the city could provide protection.

But Martin fails to mention lots of critically important facts that are related to development, not flood control, specifically: 1) the Gov.’s objective for the meeting, i.e. “economic development in Hoboken”; 2) the fact that the meeting was set up by the Gov. Office IGA; 3)  at the Gov.’s Office invitation, the Rockefeller Group attended the meeting; and 4) the fact that Martin directed a followup meeting on March 26 with DEP Deputy Cantor and the the DEP Assistant Commissioner for Land Use Lennon, the DEP group that reviews development projects like Rockefeller’s.

DCA Commissioner’s Constable’s account of this meeting differs significantly from Martin’s, but curiously, they both have trouble recalling what went on during the meeting and who attended, but they both distance themselves from Rockefeller and attribute anything related to Rockefeller as coming from Zimmer.

But those recollections are belied by Constable’s recollection of Martin’s “Birkenstock” smear (Constable):

Following Constable’s March 5, 2013 meeting with Mayor Zimmer and DEP, Martin subsequently joked about the irony of Mayor Zimmer’s talking about development – suggesting something along the lines of, in a joking manner, that Mayor Zimmer was part of the “Birkenstock crowd of folks typically not in favor of development.

If Martin is joking about Zimmer’s opposition to development, that obviously suggests that development – not flood control – was disussed.

And note that neither Martin nor Constable specifically recall or even mention that Rockefeller group was at that meeting. 

But, Rockefeller involvement at that meeting is confirmed by reading Renna (IGA) summary, which blows the entire Martin/Constable cover story:

Renna believed that Kelly asked Renna to set up the meeting between DEP Commissioner Martin and Community Affairs Commissioner Constable, and Mayor Zimmer. …

Prior to the meeting on March 5, Mowers sent an email to Renna asking if it was OK for the Rockefeller Group to be part of the meeting with Mayor Zimmer and the Commissioners.  Renna recalled that she did not know who the Rockefeller Group was, and the only reason she remembers the Rockefeller Group now is because that Renna went to Kelly to ask who the Rockefeller Group was. Renna recalled Kelly said that Lori Grifa represented the Rockefeller Group. Renna can not recall whether Kelly said whether it was or was not a problem for the Rockefeller Group to attend the meeting,  but Renna said that she would not have made the decision for the Rockefeller Group to participate in the March 5, 2013 meeting without clearing it through Kelly.

Rockefeller was there.

They were invited by Mowers/IGA (Stepien’s boy).

The Gov.’s objective for arranging this DEP meeting was to discuss “economic development in Hoboken”.

Dots connected.

Martin, Constable, and Renna’s attempts to downplay these facts strongly suggest a coverup.

In our next post, we explore the followup meetings at DEP on March 26 and May 9.  There is lots of information in those interview summaries that suggest that Rockefeller Development Group was provided not only undue access, but corrupt preferential regulatory treatment.

[Update: there are multiple interviews that show DEP role 0- here is Reiner recalling a March 11, 2013 meeting with Rockefeller Group, just days after the DEP March 5 meeting

The Rockefeller Group was worried about the Department of Environmental Protection (“DEP”) and their granting of permits, and someone from the Rockefeller Group mentioned that Mayor Zimmer had met with Commissioner Bob Martin from the DEP and Commissioner Martin painted a bleak picture. Reiner did not recall there being a specific request from the Rockefeller Group during this meeting.

Curiously, Mr. Brody, a lawyer and Deputy of GORR, does “not recall” Rockefeller’s attendance at this meeting. Curious indeed. There are numerous examples of selective recall with respect to Rockefeller Group.

Reiner confirms that Lori Grifa of Wolff & Samson and the Rockefeller Group had access and were plugged in in numerous places in the Gov.’s Office. He notes that such meetings with developers were “routine”, again downplaying the significance.

But this is the kicker that suggests the cover story:

Reiner remembered coming out of the meeting with the Rockefeller group thinking that the Mayor and the Rockefeller Group were working together and on the same page. 

The Mayor has publicly painted a very different picture, and so did the NY Times story. – end update]

end update]

In the meantime, hit the links to the documents below, from our friends at PEER: