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Senate Urged To Close Legal Loopholes And Grant DEP Powers To Protect Public Health

AG Grewal’s alleged legal “hammer” is actually a pillow

According to numerous favorable media reports and praise by environmental groups, Murphy DEP Commissioner McCabe and Attorney General Grewal are, in AG Grewal’s words, “dropping the hammer” on corporate polluters. For the typical narrative and spin, see:

• NJ attorney general ramps up efforts to hold polluters accountable

One of the more widely reported alleged “hammers dropped” was a March 25, 2019 DEP Spill Act Directive against major corporate toxic polluters Dupont, Dow, and 3M.

The reality is exactly the opposite.

What AG Grewal describes as legal “hammers” are actually pillows.

Unfortunately, while touting their efforts, the Murphy administration (and the media coverage) have failed to distinguish between two fundamentally different legal “hammers” that the AG and DEP have “dropped”, i.e: 1) traditional Natural Resource Damage (NRD) lawsuits versus 2) a novel DEP Spill Act Directive.

I previously have written to explain why DEP’s NRD program is flawed and why DEP has a weak legal hand in NRD lawsuits (see: Bombshell: DEP Bungling Led To Exxon Deal). As a result – unless these flaws are corrected via adoption of new DEP regulations – it is likely that DEP will be forced to continue to settle NRD claims for pennies on the dollar or else NJ Courts will continue to reject DEP NRD claims. (Of course, the Legislature could enact enforceable NRD standards, but there is no evidence of any appetite to do so, as a legislative Taskforce created for exactly that purpose has not issued any recommendations and no bills have been introduced).

So in this post today, I want to focus on the novel DEP Spill Act Directive.

AG Grewal issued a self congratulatory, complex and lengthy press release on March 27, 2019 that contributed to the media’s confusion and misleading conflation of the NRD lawsuits and the DEP Spill Act Directive.

The AG press release stated (emphases mine):

In addition to announcing today’s lawsuits, Attorney General Grewal and Commissioner McCabe noted at today’s press conference that, earlier this week, DEP issued a statewide directive on PFAS against DuPont, Chemours, 3M, Solvay and Dow Chemical — the main users, manufacturers, suppliers, and dischargers of PFAS in New Jersey.

Issued on Monday, the Directive orders these companies to pay for continued testing and treatment of PFAS-contaminated waters at and near the affected sites. It also orders them to pay for the additional treatment of private and public water supply wells, as well as the cleanup and removal of the contamination. Starting in the early 1950s, DuPont acquired a PFAS compound (perfluorooctanoate) from 3M and used it to manufacture its Teflon products. The State alleges that DuPont discharged massive quantities of PFAS-containing waste into water and on-site landfills at the Chambers Works site, and also released PFAS into the air.

The corporate pushback on the DEP’s Directive didn’t take long. On April 17, 2019, Dupont’s lawyers pushed back, and hard.

According to a May 10, 2019 Bloomberg News story:

Chemours Co., 3M Co. and DuPont are taking a stand against what one company called an “unprecedented” New Jersey order, saying they won’t pay for a statewide investigation of fluorinated chemical contamination.

The companies asserted they aren’t responsible for contamination under the state’s Spill Compensation and Control Act, which prohibits hazardous substances and pollutants from being discharged and imposes liability on those who do so.

New Jersey’s Department of Environmental Protection in March ordered DuPont Specialty Products USA LLC, DowDuPont Inc., E.I. du Pont de Nemours & Co., Chemours Co., Solvay Specialty Polymers USA LLC and 3M to tell the state where and when they manufactured, dumped, supplied, or used poly- or perfluoroalkyl substances, known as PFAS.

And it didn’t take long for DEP Commissioner McCabe to fold the tent and cave in to the corporate pushback.

McCabe wasn’t “dropping any hammers”, she was “hoping for a voluntary resolution” and wanted to “work with” the corporate polluters!

Closely following the Bloomberg disclosure of the corporate pushback, 4 days later on May 14, NJ Spotlight reported on the DEP cave:

NEW JERSEY DEP SAYS IT’S WORKING WITH CHEMICAL COMPANIES TO CURB PFAS

[…]

“In response to the directive, we have met with several of the companies and received certain documentation and are hopeful we can continue working with the subject companies to reach a voluntary resolution to address statewide PFAS investigation and remediation without the need for further costly, protracted legal action,” the department said.

Unfortunately, I must note that the corporate lawyers for Dupont, Chemours, Dow and 3M absolutely destroyed the DEP’s Spill Act Directive. 

The Dupont legal attack was written by NJ law firm McCarter & English. I will not repeat it here, but strongly urge readers to consider their analysis

It clearly exposes the fact that DEP lacked authority under the NJ Spill Act to issue the Directive and made fundamental scientific and legal errors. Actually, it’s an embarrassment. In my 35 year career, I’ve never seen more incompetent DEP work.

And now, to further complicate the legal and policy issues and illustrate the comic failure of AG Grewal and DEP Commissioner McCabe to work together and get on the same page, the same day the NJ Spotlight story ran (May 14), where McCabe backed down and said she wanted to work with the polluters on a voluntary basis, AG Grewal issued a press release announcing a major new lawsuit against these same polluters for PFOA/PFAS!

I suspect that AG Grewal issued the lawsuit in part because he realized that the DEP Spill Act Directive was not enforceable. That AG ligation raises even more complex and novel legal issues – blending consumer fraud with environmental laws – that we will address in a future post.

Regardless of whether we look at the DEP Spill Act Directive or the AG’s lawsuit, clearly, the legislature will need to respond and enact legislation to address these glaring gaps and loopholes in NJ’s environmental laws exposed by the DEP Directive and Dupont pushback.

Given that the Senate Environment Committee will meet next week on Thursday June 6 to consider, among other things, comprehensive amendments to NJ’s toxic site cleanup laws (see, S3682  – more privatization and weakening of current weak protections, a specific post on the bill forthcoming) I wrote to urge Chairman Bob Smith to amend his bill to address the legal loopholes and flaws exposed by the McCarter & English legal criticism of DEP’s Spill Act Directive.

Because the DEP Directive also addressed issues of fraud, failure to disclose, and knowing withholding material and critically important data on the environmental toxicity and public health risks of chemicals, I’ve also urged Smith to either amend his bill (S3682) or introduce new legislation to make such actions environmental crimes.

Because this post is getting lengthy, I will post that letter to Smith in a subsequent post.

Welcome To Taos Ski Valley – Carson National Forest

We stealth camped in downtown Taos last night, and, after a sunrise dog walk around town, we headed out early this morning for the Sangre de Cristo mountains surrounding Taos.

It was a gorgeous day – after shaking off the cold morning, it was sunny and 50, with no wind.

That’s Wheeler Peak (13,167) the highest peak in New Mexico in the background of the photo above and below.

No way we even attempt that hike through Wheeler Peak Wilderness, particularly this time of year as record snowpack (over 300 inches of snowfall) has not yet melted out, avalanche risk still exists, high flowing stream crossings are required, and there are several thousand feet elevation gain in a 16 mile round trip. (But I think we will try what looks like a more modest walk to Williams Lake tomorrow morning).

We parked the bus at the end of the road and walked in to the ski resort. Had the place almost to ourselves, as we enjoyed the music from the sparsely attended outdoor restaurant and basked in the sun in the shadow of Mt. Wheeler and the ski lifts.

Came back to the bus for lunch and 15 minutes later, storm clouds rolled it, the temperature dropped 20 degrees, and we got hit with intense thunder, peas sized hail and snow, for over an hour.

Despite local merchant participation in a campaign to “PROTECT OUR WINTERS” (from the impacts of climate change),  locals here told me they had 7 inches of snow last week, which they attribute to El Nino:

When planning your trip or hike check the National Weather Service forecast for Taos Ski Valley for an idea of what to expect. The long range forecast shows a good chance for above average precipitation throughout the spring and summer thanks to an ongoing moderate El Nino event – a welcome change from last year’s historic drought!

But I say it’s just more CLIMATE CHAOS.

Like we said, welcome to Taos Ski Valley.

Just yesterday, we were off a US Forest Service Road 76 in Santa Fe National Forest, just outside Coyote, NM (the real town name, and Bouy barked all night for 3 nights at the yipping of the coyotes).

As you can see, we have radically different gorgeous landscapes.

view from FS Road 76

Can a geologist out there tell us what those tits in the background are?

But did I handle it appropriately, discreetly, and with decorum?

A few weeks ago, out of the blue, I received an extremely curious and personal email from John Weingart of the Rutgers Eagleton Institute of Politics, a man I have had zero professional or personal contact with for over a decade (for example, see my last dispute with Weingart on adoption of the Highlands Regional Management Plan to understand that we are not best buds.)

I forgot the topic of that email, but I do recall that it was personal and I think it had something to do with coordinating a night of entertainment with Weingart and his friends.

I immediately deleted it, assuming it was some kind of internet fraud, or that Weingart’s email was hijacked.

That may well be the case.

Or it may be some kind of perverse joke on Weingart designed to taunt me.

Because tonight I received another Weingart personal email.

But this one follows my recent criticism of Weingart’s Op-Ed at NJ Spotlight, when I Tweeted this:

John Weingart personifies & validates Chris Hedges’ book “Death of the Liberal Class” WATCH: https://www.youtube.com/watch?v=2hImYfdl5pE …\

After receiving Weingart’s latest email tonight, I must report that I’ve unfortunately found the bodies of what Chris Hedges called the “Death Of the Liberal Class”.

Here is Weingart’s email chain, followed by a reply from a friend: (the numbers 1 – 3 are mine, to sequence the email chain. And yes, this is embarrassing):

1. On Wed, May 29, 2019 at 6:01 PM Julian Kestler < jkestler@att.net> wrote:

We have a doubles game at 4. Please confirm.

If court condition is doubtful, please call PRC before coming — 732-329-6200.

Skip Kestler 609-683-0358

2.  On May 29, 2019, at 8:43 PM, John Weingart < John@veryseldom.com> wrote:

Great. Thanks Skip.

John

3. Hi Guys,

See you all at 4:00 tomorrow, when/if the rain stops.

Eliot

Here is my reply to this vacuous chatter:

Gentlemen – As I sit here just outside Taos NM reading Jack London’s “Iron Heel” in my converted school bus that has become my defacto primary residence after the Obama HUD sold my mortgage on my Bordentown row house to a Florida hedge fund for 50 cents on the dollar without my knowledge or consent – a move caused by my loss of income from my nonprofit NJ PEER which was defunded by NJ Foundations after a decade of criticizing state political leaders and providing voice and agency to whistleblowers to expose anti-environmental policies and wrongdoing at DEP –  I have no idea how I was somehow included in your tennis planning.

So pardon me, but, as a trained planner, of course I am curious (Yellow).

Accordingly – while I don’t wish to rain on your (tennis) parade – perhaps maybe after a few vigorously contested sets, you guys could Marshall your abundant resources and get yourselves engaged in the various crises the afflict our country and world?

Again, so sorry. I don’t want to appeal to your liberal guilt, but, as Chris Hedges has written, this is about whether the “Death of the Liberal Class” is real or imaginary.

Your friend

Bill Wolfe

Can’t make this shit up.

Jemez National Recreation Area

Traveling eternity road
What will you find there?
Carrying your heavy load
Searching to find a piece of mind ~~~ Moody Blues

Happy Memorial Day, for the patriots out there.

We’re posting today from Cuba – New Mexico. Good day for laundry, where we met 3 through hikers on the Continental Divide trail.

Lovely high desert plains with colorful mountain ranges.

We headed northwest out of Sante Fe, across Bandelier National Monument and camped for 4 nights in the Sante Fe National Forest. We managed to find tiny alpine meadows surrounded by devastated wildfire destroyed forest. There were huge areas of wildfire that devastated lovely ponderosa pine forest. The USFS closed the forest last year due to fire risk. From what I can tell, the destructive wildfire raged in 2013. All that seemed to have begun to grow back were aspen – I didn’t see any ponderosa or any pine recovery.

Heading west we enjoyed a spectacular hike on the Las Conches Trail along the East Fork of the Jemez River  in the Valles Caldera National Preserve

Camped in Jemez National Recreational Area at the base of colorful cliffs.

Weather has been tough for the last 2 weeks, with cool  temperatures (mid 50″ during the day, low 30’s a night) and terrific and constant wind, which makes it difficult to enjoy being outside for extended periods.

Lilac rain, unbroken chain
Song of the saw-whet owl
Out on the mountain, it’ll drive you insane
Listening to the winds howl ~~~ Grateful Dead

Some photos:

Meadow in the Sante Fe National Forest just west of Bandelier NM (you can see wildfire damage in background)

Jemez NRA

Rutgers Denies OPRA Request For Key Report To BPU Used In Energy Efficiency Policy

[Update: 5/26/19 – Looks like BPU & Rutgers are violating the NJ Clean Energy Act, which mandates:

 “The methodology, assumptions, and data used to perform the benefit-to-cost analysis shall be based upon publicly available sources and shall be subject to stakeholder review and comment.”   ~~~ end update]

NJ Spotlight today wrote a critical story about a consultant’s energy efficiency study recently  submitted to the BPU, see:

• QUESTIONS ABOUND OVER KEY STUDY OF NJ’S POTENTIAL TO CUT ENERGY USE

But the Spotlight story fails to note that core data, assumptions, and recommendations in that BPU consultant’s Report came from recommendations by Rutgers, in a document that is not publicly available.

But before I get to the Rutgers story, I need to note that I was shocked by this statement of fact in the Spotlight story. Having not followed the legislative debate on the Clean Energy Act, I was not aware that the legislation guaranteed the revenues and profits of the electric and gas “utilities” (corporate PSEG and friends) associated with reductions in energy consumption due to energy efficiency improvements:

More problematic were fears by the utilities that they would not recover all lost sales revenues from customers due to their energy efficiency programs even though the Clean Energy Act clearly entitles them to be made whole for lost revenue.

Are you kidding me? We use less energy, yet utility revenues and profits are maintained? That amounts to another multibillion dollar ripoff.

[Update: 5/26/19- Holy shit, I just confirmed this huge billion dollar ripoff provision in the NJ Clean Energy Act: monopoly revenues and profits are guaranteed! And consumers pay for using less energy! Bizarre and far worse than the nuke bailout:

I find that particularly egregious, because prior legislation capped rate increases required to invest in renewable energy and transition to a decarbonized economy. That cap will cripple the development of renewables.

Here is the language from the Clean Energy Act that caps renewables – the press and the fake green groups are silent about this:

“Any steps necessary” specifically includes gutting the renewable energy requirements!

Renewables get capped while nukes get billion dollar bailouts and monopoly corporate profit are guaranteed.

I have additional criticisms of the energy efficiency study in question which I won’t go into today, – interested readers should check my Twitter feed because I engaged in a twitter storm when I first read the Report in the initial May 13 NJ Spotlight story.

One of those concerns was that a critical underlying set of data and assumptions provided in a Rutgers Report to BPU was cited in the consultant’s Report were not available.

The core assumptions ARE NOT AVAILABLE! “Energy Efficiency Cost-Benefit Analysis Avoided Cost Assumptions Technical Memo,” 1/29/19, Draft. Not available for attribution. Information on avoided energy costs, retail rates, social cost of carbon, discount rates, and line losses.”

“A measure is cost-effective if the net present value (NPV) of the benefits over its effective useful life is equal to or greater than the NPV of the measure cost, based on a societal cost test (SCT), as defined …. assumptions estimated by the Rutgers Center for Green Building”

I had several other concerns:

The assumptions, data and technical foundations of the BPU analyses are fatally flawed and can only perpetuate minor shifts in the status quo. If the Rutgers work & efficiency consultants Report reflect the BPU Energy Master Plan methods, Gov. Murphy’s claim are all sham. Period

So, I filed the following OPRA request with BPU and Rutgers for that Report:

I request the following public record recently submitted by Rutgers to the Board of Public Utilities: Rutgers University Center for Green Building, “Energy Efficiency Cost Benefit Analysis Avoided Cost Assumption: Technical Memo,” January 29, 2019, Update.

That technical memo included critical data and assumptions, including policy related recommendations regarding climate change, the social cost of carbon, technological feasibility of energy efficiency, the scope of energy efficiency programs (e.g. would fossil based residential and commercial heating and cooling appliances be replaced by electric?) and key economic assumptions like discount and interest rates.

I just received Rutgers’ reply today. Rutgers again denied my OPRA request:

Dear Mr. Wolfe,

Please accept this letter as the University Custodian of Records response to your request for records pursuant to the Open Public Records Act (“OPRA”). On May 13, 2019, this office received your request for the following:

“I request the following public record recently submitted by Rutgers to the Board of Public Utilities:

Rutgers University Center for Green Building, “Energy Efficiency Cost Benefit Analysis Avoided Cost Assumption: Technical Memo,” January 29, 2019, Update.”

We have reviewed your request and are denying same because the documents you seek are advisory, consultative and deliberative. OPRA specifically states that government records “shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.” N.J.S.A. 47:1A-1.1.

If you have any questions, please contact my office at 973.972.1887.

Sincerely,

I can’t understand how a public university’s technical memorandum that provides crucial facts and assumptions and makes policy recommendations to a public agency engaged in a public process – which is used and cited by a private consulting firm in a Report – can be considered “deliberative”.

The Rutgers technical memo was NOT “inter-agency” or “intra-agency” – it was given to a private sector consulting firm.

We need to hold Rutgers accountable to compliance with OPRA.

The BPU policy decisions are extremely complex, which severely limits public awareness, understanding and participation. Given this reality – and the involvement of economic interests –  the public needs to know that an academic institution is dealing in facts and science in the public policy process.

At the same time, the university has a duty to the public to make this complexity understandable and policy decisions transparent.

That can’t happen when Rutgers denies OPRA requests for their policy recommendations.