WolfeNotes.com

 Executive Director Makes Staff Walk The Plank for SJG Pipeline Review

Staff deny that a key finding was ever made by staff

“Undisputed” finding evaporates into thin air

Slippin’ into darkness

I don’t remember, I don’t recall

I got no memory of anything, anything at all  ~~~ Peter Gabriel (1980)

There was some “slipping’ into darkness” during last Friday’s (June 12) Pinelands Commission meeting, which veered into an Orwellian and in depth discussion of the “new” pipeline application submitted by South Jersey Gas Co. (SJG).

You been slippin’ into darkness, oh, oh, oh, oh
Pretty soon you’re gonna pay, oh, oh, oh, oh  ~~~ War (1971)

Remarkably, according to the Friday presentation by Pinelands staff, it seems that there was an immaculate finding that the original SJG application was “inconsistent with the CMP”.

The finding that the original SJG application was “inconsistent with the forest standards of the CMP” was the sole reason that SJG sought – and the Pinelands Commission allowed – the Board of Public Utilities MOA to resolve the inconsistency with the CMP by demonstrating an equal level of protection under Pinelands regulations.

So, let’s look at the history of that immaculate finding.

We start with the finding and project review process presented to the public by Branwen Ellis of the Commission staff on December 4, 2013 – the power point is undated, but see this contemporaneous post:

Source: Pinelands Commission

The Pinelands staff presentation by Ms. Ellis very clearly states “The proposed project does not meet this standard”:

That finding drove months of acrimonious public debate before the Pinelands Commission.

That finding was discussed in a trove of embarrassing emails between SJG lawyers and Exectutive Director Wittenberg and Counselor Roth.

That finding that resulted in the denial of the BPU MOA by a deadlocked 7-7 vote of the Commission.

That finding, Commission Chairman Lohbauer stated, was “undisputed” in a January 23, 2014 letter to the Press of Atlantic City defending the Commission’s vote on the MOA:

It was undisputed that the applicant’s intention to bury pipeline through forest area -even under a state highway shoulder – was inconsistent with the CMP.

To be approved, the applicant needed to quality for an exception. There are only two standards for exception: waiver of strict compliance and intergovernmental memorandum of agreement. The application pursued the memorandum-of-agreement standard, which is only available to governmental entities.

But, no, we’re supposed to forget all this.

As it turns out, that critical finding was never made by the staff – at least according to the Friday presentation of “I don’t recall” – “to the best of my recollection” Chuck Horner, Director of Regulatory Programs  for the Commission.

Chuck was forced to walk the plank for the political decisions of his boss Executive Director Wittenberg and her legal “Counselor” Stacey Roth, who were both following Orders from the Governor’s Office.

I felt bad for him – but he fell on his sword rather that tell the career ending truth.

I repeatedly have written about and demanded to know, at numerous Commission meetings: exactly just who authorized Stacey Roth to negotiate a MOA with SJG months before the Commission publicly discussed a MOA with SJG?

I repeatedly have demanded to know: just how did the BPU April 2013 Order approving the SJP pipeline route include a MOA with the Commission, months before a MOA was publicly discussed by the Commission?

I never got answers to those questions.

The OPRA public records request I filed to get to the bottom of this story was denied by the Commission, see:

• What Does the Pinelands Commission Have to Hide?

And now, not only are we not being told who authorized the MOA or told BPU to include it in their Order, but we’re supposed to forget the history of the finding that the SJG application was inconsistent with the CMP!

If you listened to Chuck tell the story, SJG apparently came to that conclusion (i.e. that their pipeline project was “inconsistent with the CMP”) all by themselves.

There was no formal written finding made by Commission staff that the SJG project was “inconsistent with the CMP”.

There was no or oral communication by staff to SJG about any of that –

Or, as Mr. Gabriel sang – about anything, anything at all.

Momma I’m depending on you to tell me the truth… (listen)

[Coming soon: South Jersey Gas lawyers explain the meaning of the word “only” – impatient wonks and intrepid journalists can get a sneak peak of that remarkable argument from the horses mouth on page 37!]

Quisling Accommodationist Installed At NJCF

A Platform For Foundation Funding and Corporate Mitigation

This is what co-optation looks like

File this one under “be careful what you ask for”.

Last October, in the wake of the People’s Climate March, I blasted NJ conservation groups for failure to seize the momentum and  opportunity and mount a real climate campaign (see:  People’s Climate Collapse? What’s Wrong With the NJ Environmental Community? A Wake Up Call)

Guess they were too busy with the new environmental activism, which means  (and this is a real list of well publicized events, rattled off the top of my head, in just the last month or so – you can’t make this stuff up):

planting milkweed; keeping NJ highway medians safe for pretty flowers; writing corporate Foundation grant applications; hosting fundraisers; burning and logging forests; planting bushes alongside electric powerlines and gas pipelines; meeting with Corporate Stewardship Councils; taking Walmart and energy company grants; buying expensive “eco-goats”; writing propaganda Op-Eds promoting theft of billions of dollars of environmental funds; selling sustainable rain barrels and compact fluorescent bulbs; holding road rally’s with highly polluting cars; conducting cultural carnivals; planting flowers at the local shopping center hardware stores; pubcrawls; expensive eco-tours; seafood  festivals; picking up litter; certifying voluntary local feel good measures; promoting state funded greenscam projects (e.g. beach replenishment for birds, dredge spoil disposal in wetlands, and stormwater detention basins in Barnegat Bay)  in exchange for State DEP and federal grants……….

I repeated that criticism more recently, in a March 21, 2015 post: Multiple Pipeline, Rail Oil Shipments, and Off Shore LNG & Drilling Controversies Provide Huge Opportunity to Educate and Organize on Climate Change

Right now in New Jersey, thousands of residents – many of whom were previously politically inactive or not affiliated with “environmental” groups or causes  – are turning out to public hearings and demonstrations to protest all forms of fossil infrastructure: pipelines, oil rail shipments, off shore LNG ports, electric transmission lines, and power plants.

The recent announcement by the Obama administration to open up the Atlantic coast to off shore oil and gas drilling has sparked huge public outrage, activating thousands more opponents of fossil infrastructure.

These battles provide enormous opportunities to inform, activate, and organize thousands of people to the common threads that link all these fossil infrastructure projects: climate change.

These battles provide “Occupy” like public platforms – events, protests, and formal public hearings – to gather huge groups of like minded people in a unified collective endeavor – politics and democracy in action – a means to build the climate movement.

These controversies can generate significant media coverage to shape public opinion and hold elected officials accountable.

As Bruce Dixon has written in his series: Organizing 101 in response to Ferguson and the “Black Lives Matter” movement:

It’s not a movement unless it’s organized, and it might never happen unless YOU organize it.

Unfortunately, I hope I’m wrong, but from where I sit, I don’t see this kind of advocacy and organizing happening.

And even more recently, in a personal note about the financial collapse of NJ PEER, I bitterly rued the dynamic that led to PEER’s demise, see: After A Decade At The Barricades, The Lights Go Out At NJ PEER:

But, all that effort is not supported financially by the funders of the NJ environmental community.

They put their big corporate money in far less threatening – and far less effective – organizations and “campaigns”:  ”Keep it Green” – “Sustainable NJ”  – Citizens Campaign – NJ Future – Together NJ – Yay!

So, with all that said, the good news is that it looks like someone was listening and has ponied up some money to fund a climate and pipeline campaign.

The bad news is that they installed a lame, lying, quisling accommodationist to head the campaign and housed it in a land trust.

That’s right, fresh off the strategic disaster that duped NJ voters, known as “Keep It Green”, according to news reports, that very same Tom Gilbert now moves to NJ Conservation Foundation to head a new “Cimate, Energy and Pipeline” campaign:

With multiple proposals for oil and natural gas pipelines into and through New Jersey — and a slew of organizations fighting those proposals — one state environmental group is hoping a soft-spoken activist can organize the pipeline opposition.

Thomas A. Gilbert, 45, a longtime activist known for his land preservation work, will begin working June 15 as a campaign director at New Jersey Conservation Foundation.

I won’t comment any further today on the substance, if you hit the links, my thoughts on this are pretty clear.

I see this NJCF “campaign” as a dangerous vehicle to both drain Foundation funds from real activism and divert public demands and co-opt activism.

And, a closing personal note to Senator Smith who is quoted in that story essentially praising Mr. Gilbert:

Senator, you know god damned well that Tom Gilbert had absolutely nothing to do with the Highlands Act.

And you also know that I spent many weeks meeting with you and OLS staffers to draft that bill, which you sponsored.

[End Note: and while we’re airing all the dirty laundry today, let me say that this was not the first time that a good idea and real campaign proposal was hijacked by the Foundation funded weenies.

In a huge irony,  a 1/25/13 Dodge Foundation letter from Chris Daggett declined funding of my Delaware Bayshore campaign proposal on this basis:

Your proposed engagement of environmental partners to build community support for an ecosystem benefits approach to regional planning in the Delaware Bayshore is commendable, but is not consistent with your stated primary organizational mission of protecting public employees and monitoring natural resource management agencies.

Dodge and Wm, Penn foundations subsequently pumped millions into a weenie campaign, derailing that real proposal for some of the ineffective tactics I criticize above.

They are doing the same thing with climate & pipelines. As I noted above, a climate & pipeline campaign is “not consistent with [NJCF’s] stated primary organizational mission”.

I discuss the Bayshore campaign scam in more detail in this April 2014 post:

• Delaware Bayshore Regional Plan Ignored by Major Funder & ENGO’s
  

end update

Investigation Will Examine How Corporate Polluters Shift Costs To Taxpayers

Does EPA Aggressively Reduce Taxpayer Environmental Liability?

Back in January, we reported that EPA was reviewing the Dupont spinoff of Chemours, including consideration of compliance with RCRA financial assurance requirements, see:

• EPA Conducting National Review of Dupont Chemours Spinoff

Our key concern was to hold Dupont accountable and avoid abuse by shifting costs to taxpayers. We noted that:

The primary purpose of the financial responsibility requirements for corrective action is to assure that funds will be available when needed to conduct necessary corrective action measures. The intent of the RCRA financial responsibility requirements is, in part, to reduce the number of TSDFs that are insolvent or abandoned by their owners and operators, leaving the costs of corrective action to be borne by the public.

EPA policy explicitly anticipates bankruptcy abuse:

Since then, EPA has been evasive and denied specific requests from Pompton Lakes residents to provide specific and concrete assurances that the spinoff will not disrupt, delay, or derail the cleanup; shift cleanup costs to taxpayers; or let Dupont off the hook for huge liabilities there.

Confirming the concerns we raised in January,  EPA Inspector General just announced a far broader investigation of these issues:

This is a hugely significant IG investigation.

This investigation is very likely to document lax enforcement of financial assurance requirements by EPA and numerous corporate abuses.

The probe also could influence EPA’s review of the Dupont Chemours spinoff and the pending transfer of numerous EPA permits and approvals from Dupont to Chemours.

I immediately wrote to the EPA IG lead investigator and urged them to expand the scope of the investigation to include failure by State’s to enforce State cleanup requirements and block corporate abuses that lead to sites being abandoned and shifted to the federal Superfund program.

A prime example of that kind of abuse is NJ’s newest Superfund site, EC Electroplating in Garfield.

NJ DEP has failed to enforce financial assurance requirements and as a result, taxpayers have picked up the tab.

At that site, the NJ DEP failed to require financial assurance or enforce NJ’s clean laws – as a result, the owner now claims a lack of resources and taxpayers are paying for the cleanup under the federal Superfund program.

Perhaps the Bergen Record’s cracker jack reporting staff can connect the dots of 2 major sites in their backyard – Pompton Lakes and Garfield.

We will keep you posted as this EPA IG investigation progresses.

[End Note:  Investors, as Wall Streeters like to say, have lots of skin in this game.

IG investigations frequently lead to EPA reforms, like more aggressive enforcement, and, depending on the magnitude of abuses documented, can lead to Congress strengthening the law or EPA tightening the regulations.

So, if government financial assurance is first in line creditor, that means investors are subordinate debt.

Investor beware! ]

Dupont Demanding 1.3 BILLION Gallons/Month, More Than Twice What They Now Use

Dupont Lacks Drought and Water Conservation Plans Required By DRBC

DRBC Would Be First Regulatory Agency To Recognize Chemours Spinoff

Will DRBC Rubber Stamp Dupont’s Attempt to Lock Up Delaware Water Rights?

Delaware River, looking north to Water Gap

[Update: 6/10/15 – The DRBC approved the Dupont water request today, based on staff’s recommendations.

To their credit, staff did consider and respond to my comments. However, the rationale they offered today for why  the DRBC should approve the request was NOT included in the original staff recommendation in the docket published for public comment. None of it. But each point was made by Dupont yesterday in response to my testimony.

Specifically, staff stated that the Dupont request should be granted because:

1. 1.314 billion gallons/month was a small part,  about 1/3 of Dupont’s total “entitlement” of water from the river.

So, it looks like Dupont already made the water grab and the DRBC already rubber stamped it.

2. the DRBC bases allocations on peak demand.

Still, according to staff’s prior report, peak demand is about 900 million gallons per month, a lot less than 1.314 billion.

3. DRBC allocations to industrial users allows some cushion to accommodate future growth. The economic downturn likely depressed demand, so additional water is reasonable.

The 1.314 BGM represents a 35% increase above peak demand – that’s a big cushion for future growth.

4. Staff did not respond to the lack of a drought management or water conservation plan – those are FUTURE conditions of the approval instead of part of the basis for deriving the allocation.

5. Staff punted on the Chemours spinoff issues saying that conditions of their approval are tied to SEC approval and legal finalization of the spinoff.

~~~ end update

Tucked away in the fine print, as items #24 and #39 on a lengthy and complex 39 item docket of the Delaware River Basin Commission (DRBC) for tomorrow’s public hearing you will find a massive water grab by the Dupont corporation.

Dupont is requesting that the DRBC approve an allocation of 1.314 BILLION gallons of water per month from the Delaware River (or about 43.2 million gallons per day, enough water to serve over 400,000 people!).

That represents about 1.5% of the low flow of the entire Delaware River to this single corporate giant for a single industrial site.

And that huge economic and public water allocation decision is outlined in the fine print of the DRBC’s draft approval, which is already written by staff and teed up to be rubber stamped by the DRBC Commission tomorrow.

And on top of the fine print, the move is being misleadingly portrayed by the DRBC staff report as a minor administrative transfer of a prior DRBC approval from the Dupont Corporation to the new spinoff  know as “Chemours”.

First of all, Dupont is asking for locking up far more water than they currently use – more than TWICE what they use on average.

According to DRBC staff:

Chemours reports that during the last four years of operation (2011-2014), monthly withdrawals from the Delaware River ranged from 341 mgm to 931 mgm. Withdrawals over the four year period averaged 600.8 mgm. The docket holder expects that water demands in the next 10 years will be consistent with the previous four year period, but the docket holder is currently exploring opportunities for future growth or expansion at the facility which may increase future water demands. The docket holder has requested an allocation of 1,314 mgm, based on the total pumping capacity of the Delaware River intake, which should be sufficient to meet the future monthly demands of the Chambers Works facility.

If Dupont is only using on average 600 GPM, why do they need 1.314 BILLION gallons per month?

What is the future development they are reserving this capacity for?

Why should DRBC favor Dupont’s speculative needs over other river users?

Second, Dupont has not complied with DRBC water conservation planning requirements and their current water allocation is NOT based on conservation or justified by need.

According to the DRBC staff report:

Third, Dupont is seeking to transfer prior approvals and permits to the new spinoff called Chemours. That spinoff does not legally become effective until July 1, 2015.

However, because Dupont is also shifting billions of dollars of environmental cleanup and regulatory compliance liability for scores of Dupont toxic sites and manufacturing facilities across the country, the spinoff raises significant concerns for investors, shareholders, the Securities and Exchange Commission, the US Justice Department, the US EPA, and the NJ DEP and other state regulatory agencies who oversee Dupont’s operations.

There is NO WAY that DRBC staff considered or were capable of analyzing the legal, economic and risk implications of this complex spinoff.

As far as we know, none of those government entities have approved the Chemours spinoff OR the transfer of any Dupont permit or approval or cleanup obligation to Chemours.

So why would DRBC be the first to do that?

We will urge the DRBC to table the approval until the following:

1) the Chemours spinoff is approved in final form by shareholders, the SEC, and other federal regulatory agencies with jurisdiction;

2) The Dupont environmental permits are transferred by other state and federal regulatory agencies – DRBC should not set precedent on this issue;

3) Dupont or Chemours submit drought management and water conservation plans to comply with DRBC regulations;

4) Dupont or Chemours revises the allocation request downward to reflect the water conservation plan and demonstrated current needs for water;

5) If Dupont seeks more water than current needs, they should be required to submit a justification that identifies the future development that will need all that water. DRBC should not make a speculative allocation.

Dupont’s Deepwater NJ Plant on the Delaware River

Financial Crisis Shutters PEER State Field Offices

What a long strange trip its been

What the scapegoat knows

Earth Day, 2005

[Updated in text below]

We begin in literature:

Macomber felt a wild unreasonable happiness that he had never known before.

“By God, that was a chase,” he said. “I’ve never felt any such feeling. Wasn’t it marvellous, Margot?”

“I hated it.”

“Why?”

“I hated it,” she said bitterly. “I loathed it.”

“You know I don’t think I’d ever be afraid of anything again,” Macomber said to Wilson. “Something happened in me after we first saw the buff and started after him. Like a dam bursting. It was pure excitement.”

“Cleans out your liver,” said Wilson. “Damn funny things happen to people.”

Macomber’s face was shining. “You know something did happen to me,” he said. “I feel absolutely different.”  ~~~ The Short Happy Life of Francis Macomber – Ernest Hemingway, 1936)

I too feel absolutely different: transformed from a professional bureaucrat to a public advocate and activist; and disillusioned by the experience of becoming a whistleblower and all that entails.

What the scapegoat knows

Some have written eloquently of that as “spacewalking”:

“Frank Whitbread is a chemist who worked for a state environmental protection agency. Several times his boss had refused to allow him to testify before a state panel investigating the agency’s failure to test the well water of subdivisions located near sites where hazardous materials had been dumped. Eventually he called up a state senator and told him his story. Shortly thereafter Frank was fired. The state civil service commission made his agency take him back, but he was given no work to do and an office that was once a janitor’s closet.” (p. 75).

Sound familiar? Frank speaks out in the public interest and suffers fierce reprisals from his employer.

But what does it all really mean? In particular, what does it mean for the whistleblower? C. Fred Alford tackles this vital question in his stimulating new book Whistleblowers: Broken Lives and Organizational Power (Cornell University Press, 2001).

Alford is sceptical of the heroic accounts in which the courageous employee brings a corrupt organisation to account, benefiting society and receiving society’s gratitude. Instead, he has a much darker, more pessimistic message. Nearly all whistleblowers are destroyed. They lose their jobs, their careers, their houses, their friends, their families. But that is not the worst part. Most catastrophically, whistleblowers lose their trust in people and justice.  (Book review by Brian Martin)

That “spacewalking”, or separation from the mother ship, is what prompted us to form the NJ Chapter of PEER in June 2005.

Since we founded and kicked NJ PEER off in June 2005, we have issued 191 hard hitting reports.

That is some kick ass body of work – that runs circles around virtually every other NJ environmental group, with 20 times the staff and budget – for the quality of the work as well as the impact on public opinion and public policy.

Diogenes looking for an honest man

We have testified at hundreds of legislative and regulatory hearings, public meetings, press conferences, and other events.

Living in truth

We have tried to tell the truth as we know it, and, as the old saying goes: Afflict the comfortable and comfort the afflicted.

We have tried, as Vaclev Havel wrote, to live in truth:

… you do not become a “dissident” just because you decide one day to take up this most unusual career. You are thrown into it by your personal sense of responsibility, combined with a complex set of external circumstances. You are cast out of the existing structures and placed in a position of conflict with them. It begins as an attempt to do your work well, and ends with being branded an enemy of society. […]

By breaking the rules of the game, he has disrupted the game as such. He has exposed it as a mere game. He has shattered the world of appearances, the fundamental pillar of the system. He has upset the power structure by tearing apart what holds it together. He has demonstrated that living a lie is living a lie. He has broken through the exalted facade of the system and exposed the real, base foundations of power. He has said that the emperor is naked. And because the emperor is in fact naked, something extremely dangerous has happened: by his action, the greengrocer has addressed the world. He has enabled everyone to peer behind the curtain. He has shown everyone that it is possible to live within the truth. Living within the lie can constitute the system only if it is universal. The principle must embrace and permeate everything. There are no terms whatsoever on which it can co-exist with living within the truth, and therefore everyone who steps out of line denies it in principle and threatens it in its entirety.

We have tried to maintain hope and not become cynical and bitter, despite our understanding and experience of just how corrupt and broken government and the regulatory apparatus are today.

This is a very difficult line to walk, especially in trying to avoid crushing the enthusiasm of young people and well meaning activists who believe in government and the system – and driving them to despair.

We’ve tried our best.

Foundation fail

But, all that effort is not supported financially by the funders of the NJ environmental community.

They put their big corporate money in far less threatening – and far less effective – organizations and “campaigns”:  “Keep it Green” – “Sustainable NJ”  – Citizens Campaign – NJ Future – Together NJ – Yay!

NJ PEER’s national financial support has dried up, as PEER has undergone a financial crisis and has shuttered State Chapters in New England, Florida, Tennessee, California, and the Rocky Mountain states.

[Update 12/14/19: At least I was told by ED Jeff Ruch that there was a financial crisis and that all State Field Office were being closed. I found that really weird, because just 2 years prior, Ruch had supported my mortgage application via a letter to the bank that stated PEER was financially healthy and that my future income was guaranteed. Right.

I don’t know how to read financial statements, but this from the PEER 2015 audit sure looks bad:

I wonder what group they borrowed the $50,000 from? That was MORE than I was making per year in salary.

On top of being laid off out of the blue – after just having bought a house and taken on a mortgage – when I applied for NJ unemployment benefits, I was rejected, because PEER had classified me as a contract employee with no benefits. The loss of salary and ineligibility to collect unemployment benefits created my own “short term cash flow” crisis and led to me losing my house. How nice. What Scumbags.

Now in hindsight, after I just learned that PEER revised their website and sent a decade of my work down Orwell’s Memory Hole, on top of that, I now learn that NJ was the only State Field Office that was closed down, the others remain open. So, of course, with all these anomalies, I am suspicious or the whole matter and feel that I was targeted and the so called financial crisis was pretext for getting rid of me. ~~~ end update]

As a result, we’re sad to note that NJ PEER is shutting down for lack of funding.

We are working hard to keep Wolfenotes alive, to put food on the table, and delay the bank’s and Sheriff’s foreclosure on the mortgage.

But we’re not laying down and we’re not done, not just yet.

We close by returning to Havel:

The point where living within the truth ceases to be a mere negation of living with a lie and becomes articulate in a particular way is the point at which something is born that might be called the “independent spiritual, social, and political life of society.” This independent life is not separated from the rest of life (“dependent life”) by some sharply defined line. Both types frequently co-exist in the same people. Nevertheless, its most important focus is marked by a relatively high degree of inner emancipation. It sails upon the vast ocean of the manipulated life like little boats, tossed by the waves but always bobbing back as visible messengers of living within the truth, articulating the suppressed aims of life.

What is this independent life of society? The spectrum of its expressions and activities is naturally very wide. It includes everything from self-education and thinking about the world, through free creative activity and its communication to others, to the most varied free, civic attitudes, including instances of independent social self-organization. In short, it is an area in which living within the truth becomes articulate and materializes in a visible way.

[End note: I hope I didn’t offend feminists or animal rights folks with the Hemingway excerpt. That’s not old fashioned machismo he’s driving at. Read the story.

I could have used an excerpt from Frantz Fanon, James Baldwin, Malcolm X or Emerson about the liberatory – emancipatory effects of an act that requires courage – or concepts currently sometimes called “agency” or “empowerment”]