WolfeNotes.com

State Officials Cited by NTSB for Violations of Federal Emergency Response Requirements

DEP Provided False Information to Public That Endangered and Harmed Community

Partial Community Evacuation based of “erroneous reports”

State Failed to correct errors and misinformation when informed about them

“Fact based decisions regarding community exposure did not occur”

NJ, Once a National Leader, Is Now National Laughing Stock 

Evacuation in Paulsboro violated federal Guidelines Source: NTSB

“Shelter in place is what I grew up in as ‘duck and cover.’ The idea that you could somehow shelter in place and be safe from these risks is ludicrous on its face,” Wolfe said. …

These facilities are part of a chemical industrial complex that stretches for about 20 miles along the banks of the Delaware River. Paulsboro is a community that’s pretty much in the middle of that. We were at Paulsboro High School, about a football field away from those facilities.

“The industry has created maps showing where there is called a ‘kill zone’ where in the event of an accident like this, had that been a chlorine tank, literally hundreds or thousands of people could have been killed, instantly,” Wolfe said.  ~~~ NJTV News, 12/4/14

Sometimes, it’s no fun to be vindicated and say “I told you so”.

But Tuesday’s National Transportation Safety Board hearing and final report demand both an “I told you so” and an in depth response here. So today, we provide part one – a little of the history and an overview of key NTSB findings.

• Looking Back – A Few Points

I hardly know where to begin and I hate to use such a trite cliche, but you really can’t make this stuff up.

We had been to Paulsboro and written about the place many times prior to the accident (beginning with this 2008 Star Ledger piece “In Harm’s Way) and have been writing about the Paulsboro  toxic train derailment since the day it occurred.

From day one, we strongly criticized the emergency response, the limited evacuation, and especially the false and misleading information provided by government officials to the media and the community about the health effects and risks of the chemicals involved .

I went to Paulsboro during the episode and ventured into the “hot zone”.

I knew the accident was far worse than officials told the public and that the emergency response was badly mismanaged, and that’s why we filed a petition seeking performance reviews by the Inspectors General at the EPA and Department of Homeland Security.

I provided the toxic context, explained how state and federal regulations were flawed, transportation infrastructure decrepit, how the reported monitoring data were flawed, how the science and health effects did not support the “shelter in place” response, how monitoring data exceeded federal safety standards, how the risk communication plan was controlled by a questionably competent corporate consultant, and how Gov. Christie failed to respond, not even to the minimum level set by Louisiana Gov. Jindal.

As lawsuits filed by residents prompted the media to probe what went wrong, I thought it was bad when they reported (long after the fact) that the Gloucester County Emergency Response Team lacked batteries for their hand held air monitors.

No biggie, those air monitors just tell emergency responders whether exposure to toxic gases are in concentrations that just might kill them or thousands of nearby residents.

And I knew in real time, and wrote about it extensively, that officials were outright lying about the toxicity of the chemical vinyl chloride, the health risks of exposure, and the faux evacuation and “shelter in place”.

NTSB investigators have now validated virtually all those criticisms – and found far more mistakes, negligence, and potential wrongdoing that I was unaware of.

• NTSB Finds Fatal Flaws

The National Transportation Safety Board hearing and Report on the Paulsboro toxic train derailment has set new lows that even I would not imagine to be possible in a state that was once a national leader and pioneer in chemical safety and risk management. (watch video of hearing here)

The final Report has not been issued yet (updated with links), but there were staff briefings that were revealing and more damning information emerged during the Board’s review of the staff presentations – watch the video for that. For now here is the available written info:

• Chairman’s Introductory remarks (notes that vinyl chlorine is a carcinogen, a fact not initially disclosed)
• Staff power point briefings
• Chairman’s closing statement
• NTSB Synopsis

Here are just some of the egregious errors NTSB found:

• the head of the local response, the Fire Chief, said he couldn’t see or smell the chemical, so no problem
• the emergency response team set up a Command center directly in the “hot zone”, in violation of federal safety guidelines
• none of the emergency responders wore protective breathing apparatus required under federal safety guidelines
• the Paulsboro police told responders and the public that the gas was not toxic. When told of their error, the mistake was not corrected.
• emergency responders were climbing on the derailed chemical rail cars for no reason
• DEP issued public statements about the chemical risks that were flat out false, had no scientific basis, were misleading, and that endangered people. When told of their error, the mistakes were not corrected.
• the partial evacuation lacked a scientific basis and violated federal safety guidelines
• the railroad company, Conrail, intentionally withheld information of the chemicals involved in the derailment
• the Paulsboro local chemical safety and emergency response plan was expired and seriously deficient
• the NJ State Police Office of Emergency Management oversight of local and county programs was a disgrace

I could go on. And will in future posts when the NTSB Final Report is released.

But for now, before we write those more detailed posts, let’s just consider key issues.

 First, just look at the map above and focus on the 1/2 mile evacuation radius. That is the minimum evacuation zone recommended by federal emergency response guidelines – it could be far larger for some chemicals like chlorine, which tanker cars carried in this accident.

The emergency responders in Paulsboro failed to meet this minimum evacuation zone radius and there was no scientific basis for the portion of the community that was evacuated.

Second, local officials were not the lead responsible entity for the emergency response and they can not be expected to be experts in chemical safety, so I really can’t blame the local fire chief and local police for egregious falsehoods and mistakes they made.

I blame state and federal officials who are responsible and are supposed to be experts. Those officials made a series of unforgivable “mistakes”, which I will go into in detail once the NTSB Report is released.

The most unforgivable, were the ones NTSB said officials “failed to comply” with federal requirements and “citations for violations” were issued (see slide on page 45)

At the time of the accident, we explicitly said DEP lied to the public – those harsh criticisms have been vindicated.

Adding inset to injury from this scandalous negligence and coverup, I read that the former Mayor of Paulsboro and current State Assemblyman for the city, who served as the head of “communications” for this Keystone Cops fiasco, was “offended” by the NTSB Report.

And we’ll explore Burzichelli’s role as well in future post, leaving for now that he was the former Mayor of Paulsboro, is the current State Assemblyman for the town, and has served as Gov. Christie’s “Red Tape Commission” and sponsored several bills that would roll back environmental protections , allow industry to get involved in developing state drinking water standards, gut NJ’s strict State standards, and weaken the ability of DEP to enforce the law.

Much more to follow on all this.

A Trenton Insider’s View

“angels in the architecture”

Devils in the Offices

A Tale of Two Off Shore Seismic Reseach Projects

Much Easier to Look Tough By Suing NSF than Big Oil & Gas

noun: smokescreen

a cloud of smoke created to conceal military operations.

a ruse designed to disguise someone’s real intentions or activities

“he tried to create a smokescreen by quibbling about the statistics”

Open Letter to AG Offers Lengthy List of Targets for Investigation & Prosecution

The screaming headline of the Star Ledger’s above the fold page one story today – head shot/mug shots and all – jolted me from my rainy Saturday morning coffee complacency and sent me scrambling to my keyboard just now to pound out this open letter of praise and congratulations to Gov. Christie’s Acting Attorney General John Hoffman see:

• Ex-top official of East Orange water agency admits concealing chemical in drinking water

All I can say, after almost 30 years of work as a “professional watchdog” and whistleblower is  – Wow!

In one fell swoop, our Acting AG has done the following: (and follow each discrete element of the prosecution, because we will apply them later on  in this post):

 1) broken up a “conspiracy“; 2) to mislead the public; 3) about the “safety of our drinking water” and 4) advocated for “professional environmental watchdogs” in government agencies to expose the “cover up” of  “significant contamination issues”; 5) intended to “avoid building an expensive water purification plant” to “remove the chemical from the water”.

The Star Ledger’s cracker jack reporting tells us:

“Mowell should have used his expertise to act as an environmental watchdog, protecting the water supply and alerting the DEP and the public of problems,” Elie Honig, director of the state Division of Criminal Justice, said in a statement. “However, he chose to use his knowledge and skills to cover up a significant contamination issue.” […]

Investigators alleged Mowell and Mansmann took the actions to avoid building an expensive water purification plant that would remove the chemical from the water.

Although the Attorney General’s Office found the coverup of “a significant contamination issue” regarding a known human carcinogen, the DEP downplayed the health risks:

Exposure to the chemical, used for dry cleaning and other purposes, over a prolonged period of time is a potential cancer risk, according to the federal health department. But state Department of Environmental Protection officials said their own testing showed residents were not at risk and the water was safe.

What? Residents not at risk? Really?

That is very strange, because a prior June 14, 2014 Star Ledger story reported:

The DEP’s latest water investigation showed that several of the 18 artesian wells in eastern Morris and western Essex counties still show high levels of volatile organic compounds, inorganics, radon and disinfection by-products

How can DEP sampling documentation of “high levels of volatile organic compounds, inorganics, radon and disinfection by-products” in June be called ‘safe” in July?

Perhaps the Star Ledger could resolve the apparent contradiction in a followup story and maybe AG needs to look into DEP for the same abuses he prosecuted this case on.

Coincidentally, further suggesting a look at DEP, yesterday the Bergen Record reported very similar drinking water contamination in  Montclair, which also was called “safe” by DEP:

Despite serious-sounding warnings on state and federal websites about the potential harm of PCE exposure, Montclair residents shouldn’t be concerned, according to Karen Fell, assistant director of water supply operations at the DEP. […]

“It’s not any kind of violation,” Fell assured The Times.

I am so tremendously pleased that the criminal law enforcement resources of the Christie Administration  are looking out for our drinking water, because the policy, regulatory, and administrative enforcement sides of the administration responsible for protecting our drinking water are in complete abdication mode.

So, to congratulate and make our new “watchdog” Acting Attorney General aware of multiple investigatory targets to followup on, I fired off the below open letter:

Dear Acting Attorney General Hoffman:

As an environmental professional and watchdog , most recently of the Christie Administration, with a longtime focus on DEP, I am writing to thank you for prosecuting the East Orange drinking water conspiracy and to suggest other targets for investigation.

I write in light of the standards you upheld in that prosecution, as reported in today’s Star Ledger story, particularly a conspiracy to mislead the public about the safety of our drinking water and your advocacy for professional environmental watchdogs in government agencies to expose the cover up of  significant contamination issues intended to avoid building an expensive water purification plant to remove the chemical from the water.

Bravo!

With those standards in mind, may I suggest that you focus your investigatory resources on the following similar potentially wrongful conduct:

• I) Public deception about risks

I call your attention to the serious environmental, public health, and public safety risks of:

• the Oyster Creek nuclear power plant, revealed by the case of Dennis Zannoni, NJ DEP’s former Chief Nuclear Engineer, and the conspiracy of harassment and retaliation for disclosure of those risks  (see this).
• toxic heavy metal chromium, revealed by the case of Zoe Kelman, former NJ DEP Chemical Engineer, and the conspiracy of harassment and retaliation for disclosure of those risks (see this and this).
• hundreds of chemicals known by DEP to be present in NJ’s drinking water, and the failure of government officials to disclose to the public and act on those risks (see this).
• the concerted effort by DEP Commissioner Bob Martin to block the NJ Drinking Water Quality Institute from meeting for almost 4 years, from recommending drinking water maximum contaminant levels” (MCL’s) for dozens of chemicals, and the failure by DEP to adopt the recommendations of the DWQI scientists to adopt MCL’s (see this and this)
  
• misleading the public about and failure to adopt an MCL for perchlorate (see this and this and this)
• inadequate regulation and regulatory oversight of railroad safety, particular toxic train derailments (see this)
• inadequate regulation and regulatory oversight of facilities that manufacture or store “extraordinarily hazardous substances” (see this)
• inadequate regulation of emissions of greenhouse gases, which will lead to catastrophic climate change (see this)
• the suppression of science documenting the impending ecological collapse of Barnegat Bay (see this)
• the role of the Dupont corporation in the privatization of DEP science and burgeoning conflicts of interest at DEP (see this and this)
• the Fenimore landfill scheme (see this)
• the Pinelands pipeline  (see this)
• the failure to prepare for major coastal storms (see this)
• the role of private consultants in weakening of vapor intrusion standards (see this)
  
• the failure to update flood maps to fully disclose and regulate known flood risks (see this)
• the role of private consultants in providing false and misleading information to residence regarding evacuation after the Paulsboro toxic train derailment (see this)
• the coverup of cumulative risks of hazardous air pollutants in Paterson (see this)
• the failure to seek listing of 35 toxic sites that qualify for Superfund based on risk (see this)
• the role of Dupont and DEP failure to regulate and remediate toxic mercury in Pompton Lakes (see this)
• corporate conflicts of interest on the DEP management team (see this)
• pay to play abuses in DEP industry regulatory stakeholder groups (see this)
• the DEP’s plan to “protect” water supply intakes on NJ rivers by weakening water quality standards (see this)
• Gov. Christie’s political appointments to the Highlands Council (see this)

• II)  Elevating costs above public health protection

Your prosecution accused the drinking water officials of seeking  “to avoid building an expensive water purification plant that would remove the chemical from the water.”

As you know, consideration of costs in setting drinking water standards pursuant to NJ’s Safe Drinking Water Act is not legally authorized.

Yet the practice is widespread and even documented in official State policy.

Specifically, I urge your investigation of DEP and the Drinking Water Quality Institute to begin with Governor Christie’s Executive Order #2, which, among other things, directs DEP to provide “regulatory relief”, hold off the record meetings with regulated industry, and to conduct “cost benefit analysis”.

• III) Role of professional watchdogs in government agencies

We applaud your efforts to promote professionalism and whistle blowing.

See the above point #I regarding specific examples of DEP whistleblowers and retaliation by DEP managers.

As a former whistleblower myself, I can personally testify to institutional corruption at DEP with respect to suppression of science, failure to disclose risk, and retaliation against professional whistleblowers who do.

If you interview your own Deputy Attorney General George Schlosser, he can confirm that as a witness to this egregious abuse, using NJ State Police

I urge your investigation to examine DEP Commissioner Martin’s transformation and “burning platform” management initiatives for DEP professionals to abandon what you refer to as a professional “watchdog role” and provide “customer service” (see this).

• IV) Operating practices that deceptively increase risks

The water utility involved in your prosecution “blended” various source water supply wells.

The practice of “blending” is a common and statewide abuse to circumvent regulatory MCL’s that undermines public health.

DEP looks the other way or actually encourages this abusive practice.

In closing, I look forward to your timely investigation of the foregoing and am able to provide additional information upon request.

Sincerely,

DEP Abused Regulatory Procedure To Shield The Governor From Criticism

Re-adoption of Coastal Rules Without Change Before Election – Massive Rewrite After Election

Cynical Bait & Switch Undermines Democratic Accountability

Some of the most controversial economic, public policy, and political issues NJ has ever faced were raised by Superstorm Sandy – particularly issues surrounding how the Christie Administration prepared for Sandy and sought to rebuild the shore, especially in light of the need to adapt to climate change.

So, obviously, the Governor’s coastal redevelopment policies should have been a focal point of press coverage and public debate during the 2013 Gubernatorial campaign.

In fact, public opinion polls showed that Governor Christie benefitted from a huge increase in favorable opinion as a result of how he responded to Sandy’s devastation, see:

• Christie’s Favorable Poll Rating Due Entirely To Sandy

The last thing Gov. Christie wanted during the run-up to the election was critical media coverage like this:

• Critics: Christie Deep-Sixed Climate Change Prep 

So, he took steps to avoid that.

Follow this to understand how DEP grossly abused their power to do this. Telling this story requires that I delve into the regulatory weeds on the chronology  – what DEP did before and after the election on the same rule – and lay out the basic theory of government to illustrate why that was such a gross abuse. So bear with us as we try to do so.

• The Current DEP Proposal

On June 2, 2014, Governor Christie’s DEP proposed a massive 1,000+ page re-write of 40 years of coastal land use and natural resource protection policy.

That controversial proposal has generated significant criticism of the Governor, primarily for DEP’s failure to consider climate change, sea level rise, and the lessons learned from Sandy. (see

• Christie administration still wearing blinders on sea level rise (Star Ledger)
• Why Doesn’t DEP Believe in Climate Change? (NJ Spotlight)
• Christie’s Climate Denying Coastal Rule Must Be Blocked By The Legislature

Instead of reforms designed to adapt to the huge challenges of coastal sea level rise and reduce risks to life and property, the Christie proposal would invite even more development to NJ’s highly vulnerable coast.

• The Stealth Re-adoption of the Same Rule Prior to the election

While the current DEP proposal is generating huge controversy, virtually no one knows that less than a year before the DEP published the current massive re-write – just months before the November election – on July 1. 2013 DEP quietly posted a notice of re-adoption of the rule, without change.

The DEP readopted the coastal rules – without change – for another 7 year period.

Yet less than 1 year later, the DEP totally rewrote the same rule!

That stealth move by DEP in July 2013 – basically hiding the Governor’s coastal development policy –  kept critical coastal development policy issues below the radar and shielded the Governor from the intense criticism he is getting right now.

• Why DEP’s bait & switch is a fundamental abuse

The DEP’s quiet 2013 pre-election re-adoption of the coastal rule with no change was followed less that a year later with a post election re-write.

That is an incredible abuse that violates fundamental principles of administrative law and Constitutional separation of powers.

Under our Constitutional scheme, the Legislature sets policy through laws. The Executive implements that policy.

The public is supposed to have a voice in policy, and that voice is expressed in both elections and during the various government processes that set policy.

Legislators enact laws in open sessions and they are accountable to the voters for the laws they pass. That’s how representative democracy works.

That is, at least in theory, what the “separation of powers” is about.

But, in actual practice, legislative and executive powers are not separate, but are blended or shared powers.

The laws Legislators pass delegate power to Executive Branch officials to “fill in the details” required to implement and administer the laws consistent with the policy set by the legislature. These “details” are filled in in regulations.

Regulations have the force and effect of law.

But regulations are written by unelected Executive Branch officials who are not accountable to the voters.

Because regulations blend Executive and Legislative branch powers, they must be adopted by procedures that provide transparency, accountability, and due process.

These procedures include giving the public an opportunity to review and comment on proposed regulations, including at least one public hearing.

These procedures are the means for holding the Executive Brach agencies who write the rules accountable to the public, to the legislature who passed the law, and to the laws that authorize the regulations (which provides a factual record that enables the Judicial branch to hold the Executive Branch accountable to law).

Regulators are often criticized as “unelected bureaucrats” for  effectively usurping the powers of the Legislature via undemocratic and unaccountable regulatory means.

That is why the regulators must follow laws that require that their regulations be subject to public review.

In July of 2013, the Christie DEP – if quietly – told the public that there would be no change in coastal policy for at least 7 years. That was the policy record theoretically available to voters going into the election.

But shortly after the election, Christie announced a massive and controversial re-write of coastal policy to promote even more development at the shore, while ignoring climate change.

The cynical Christie DEP played political games and grossly abused our entire Constitutional scheme of government.

And that is shameful.

[PS – if we had a functional legislature, media, or even a professional Bar Assc., this kind of abuse would be a big deal and sternly criticized. But sady, we don’t.]