Legal and Fact Errors
Fact Free Speculative Partisan Propaganda
Cover For Fact That DEP Commissioner Was A Lawyer For Corporate Polluters Fighting Cleanup Requirements
NJ Spotlight’s story today on the proposed designation of the Hackensack River as a federal Superfund site contains egregious errors that completely mislead readers about the Superfund designation process and the State DEP’s role in that process.
The errors are not minor and are in the lead of the story:
Department of Environmental Protection Commissioner Shawn LaTourette said Friday he will apply for Superfund status, which would, if granted, add federal money and expertise to the badly needed cleanup of a toxic stew of chemicals that lie in the riverbed as a result of more than a century of unregulated industrial discharges.
The river would be the first in New Jersey to be placed on the National Priorities List for cleanup of severely polluted sites even though some parts of the nearby Passaic River are being remediated under the program.
I) First, a State environmental agency does not “apply for Superfund status.”
Superfund is a national program. The decision on whether to designate a site on the Superfund National Priorities List (NPL) is exclusively and solely EPA’s decision.
EPA has complete control (legally and technically) of every single step in the Superfund process.
The State role its purely advisory and has zero legal effect. EPA “consults” with States and seeks their “concurrence” in proposed Superfund NPL listing and cleanup decisions that are made exclusively by EPA. The State’s input is not binding on EPA in any way. EPA can act to list a site on the NPL with or without the State’s support.
The EPA NPL listing decision is supposed to be driven by science and risk to human health and the environment, as measured by a scoring system known as the “HRS”, for “Hazard Ranking System”. Sites with greater than an HRS of 28.5 qualify for listing. The Hackensack River scored an HRS of 50 (over 5 YEARS ago). EPA should have listed it on the NPL long ago.
Here is the EPA policy for consultation with States in the Superfund NPL listing process:
In an effort to maintain close coordination with the States in the NPL listing decision process, the Regions should determine the position of the State on sites that EPA is considering for NPL listing. The Regional Administrator should direct the written inquiry to the governor, with a copy to the State environmental commissioner. The inquiry should specify that a written response from the State is requested.
This is not a trivial issue, because exaggeration of the State role contradicts the fundamental Congressional structure of Superfund as a National program, it creates major problems in accountability, and it produces two very negative results:
1) the cowardly bureaucrats at EPA, including former EPA Region 2 Administrator Judy Enck and then head of R2 Superfund Mr. Walter Mudgan (now acting RA), hide behind a lack of “State concurrence” as an excuse not to make a decision to list a site on Superfund NPL. This gives knuckle dragging Gov.’s a veto power that was never authorized by Congress. We had enormous battles with EPA on this issue at the Dupont site in Pompton Lakes.
2) exaggeration of the State role allows State and local political influences to intervene at EPA on behalf of polluters to block Superfund NPL listing. EPA even has gutted Superfund cleanups based on local zoning. I wrote about exactly these political problems at the Troy Chemicals site in Newark (which subsequently was ultimately listed by EPA).
It also makes this appear to the public like the Murphy administration is doing some heavy lifting when in fact it means very little (despite EPA Mudgan’s claim that DEP support is “significant”. All it does is provide political cover for him and divert from his historical failures to act. Mudgan is engaged in pure political spin, not statements of law and policy).
II) Second, despite what NJDEP falsely claims, the Hackensack River would NOT “be the first River in New Jersey to be placed on the National Priorities List”.
The EPA designated the Passaic River a Superfund site a long time ago. How can DEP Commissioner LaTourette and NJ Spotlight spin that?
[Update – a reader just sent me a curt note to indicate that the designation of a river as a Superfund site is really no big deal and has been done before across the country:
Willamette, Duwamish, Saginaw, Carson, St Louis, Hudson etc
III) Third, Perhaps even worse, the partisan nature of the story is overt – not even disguised. And it too is factually in error and based on pure speculation, not facts.
Here it is:
Sheehan based his hopes on pro-environment policies by Democratic administrations in both Trenton and Washington, and on the long experience of Walter Mugdan, acting administrator of the EPA’s Region 2, who he said is well-placed to push for Superfund status for the river.
The Biden factor
“Now that Biden is in, and Mugdan is acting administrator, I wouldn’t be surprised if they accepted the petition and started working on the rulemaking,” Sheehan said in an interview with NJ Spotlight News. […]
Blocked by Christie
In 2016, EPA contractors took 400 samples from the riverbed, and found what Sheehan described as a “toxic stew” of contaminants. That should have prompted the DEP to seek Superfund designation at the time but that was blocked by Gov. Chris Christie who may not have wanted a new Superfund site in New Jersey during his presidential campaign, Sheehan said.
IV) Here are The Facts
Look, I was one of NJ Gov. Christie’s harshest, credible, and most visible environmental critics, if not the harshest. Ditto the Trump EPA.
But I can not let that obscure the facts of the matter or provide excuse for EPA inaction or DEP over the top spin. The facts are thus:
1. Regardless of what Gov. Christie did or didn’t do (and I do not doubt that he and DEP Commissioner Martin may have opposed Superfund designation, but I base my views on evidence, not speculation), it is flat out false to claim that DEP should have sought Superfund designation based on sediment sampling.
Again, this is a false statement of the State DEP’s role. Superfund designation is an EPA responsibility.
EPA should have pursued Superfund designation after they conducted a Preliminary Investigation (PA) and Site Assessment (SI) that yielded a “Hazard Ranking Score” (HRS) of 50, almost twice the listing score threshold of 28.5.
EPA completed the PA/SI over 5 YEARS ago and long BEFORE the sediment sampling documented that “toxic stew” of contaminants. The PA alone is an adequate basis for NPL listing, even without the confirmatory sediment sampling.
Walter Mugdan, US EPA Region 2 Acting Administrator
2. Walter Mudgan is no hero. I will note that Walter Mudgan, portrayed by NJ Spotlight as a hero, was the EPA R2 Manager in charge of this decision. He failed to act – he failed do the right thing. That is not leadership, that is cowardice.
And Mr. Mugdan failed to do the right thing in Pompton Lakes. He failed the people of Ringwood too. And he’s dragging his feet on the Curtis Paper Site in Milford. We don’t forget.
3. There is no evidence that the Murphy NJ DEP is “pro-environment” in terms of aggressive cleanup of toxic sites. The NJ DEP toxic site cleanup program was privatized – by NJ Democrats in the Legislature and Corzine Gov.’s Office, supported by then DEP Commissioner Lisa Jackson. I see no evidence that Murphy wants to reverse that ultimate rollback.
In fact, available evidence points to exactly the opposite conclusion, because NJ DEP Commissioner LaTourette was a legal hired gun for major corporate polluters fighting DEP and EPA toxic site cleanup requirements. (Look at his former corporate clients here).
Commissioner LaTourette is using this issue very cynically to create a misleading impression and to provide cover for his prior corporate legal work on behalf of polluters.
He is a slippery, dangerous, and dishonest hack. This episode absolutely validates my prior assessments of the man.
[End Note: I also haven’t seen any evidence that Biden is pro-environment on cleanup requirements. Again, the available evidence suggests just the opposite: The Associated Press has documented that Biden is a fraud on climate. And his EPA Administrator is known as a consensus builder and compromiser and he won the support of industry during the confirmation process. (Washington Post):
As North Carolina’s top environmental official, he has generally won praise from members of both parties, as well as from many environmental groups and industry representatives, for his willingness to hear all sides of an issue. But even Republicans who have spoken highly of Regan personally remained skeptical about the Biden administration’s plans to aggressively limit emissions from the nation’s automotive and fossil fuel sectors, insisting that moving too fast could inflict further damage on the battered economy.
How could NJ Spotlight speculate with no facts and in such a blatantly partisan way?]