WolfeNotes.com

Murphy DEP Gaslights The Public By Bragging About Meeting Outdated Standard

New EPA Standard & NJ DEP Monitoring Data Shows NJ Air Is Unhealthy

[Update: My above graphic juxtaposition of daily and annual monitoring data is consistent with DEP policy, which recognizes the importance of daily peak exposures: (DEP Ozone SIP. p. 6-17):

The US EPA just announced that they were proposing more stringent national air quality standards for fine particulate pollution (NAAQS for PM 2.5, AKA “soot”) to protect public health. EPA announced:

Rule Summary

On January 6, 2023, after carefully reviewing the most recent available scientific evidence and technical information, and consulting with the Agency’s independent scientific advisors, EPA announced its proposed decision to revise the primary (health-based) annual PM_2.5 standard from its current level of 12.0 µg/m³ to within the range of 9.0 to 10.0 µg/m³.

The scientific basis for EPA’s ratchet down was compelling: (@page 11-12, hit this link to read the entire 569 page proposal): (emphases mine)

The EPA is reconsidering the December 2020 decision because the available scientific evidence and technical information indicate that the current standards may not be adequate to protect public health and welfare, as required by the Clean Air Act. […]

The health effects evidence available in this reconsideration, in conjunction with the full body of evidence critically evaluated in the 2019 ISA, supports a causal relationship between long- and short-term exposures and mortality and cardiovascular effects, and the evidence supports a likely to be a causal relationship between long-term exposures and respiratory effects, nervous system effects, and cancer.

The science supporting EPA’s proposed new standard shows that the air in NJ continues to be unsafe to breath.

This is a highly significant EPA decision, yet you would not know any of that from recent communications from the Murphy DEP air quality program (or from reading the NJ press corps or the ‘alerts” from NJ environmental groups, who both seem to have given the Murphy DEP a pass on everything).

Just the opposite: instead of warning the public of unsafe pollution, expanding monitoring, and ratcheting down on polluters, the Murphy DEP is bragging about the good news on NJ’s compliance with EPA air quality standards for fine particulates.

Just 4 days after US EPA announced the need for this stricter standard to protect public health, the Murphy DEP air quality program distributed an email which transmitted DEP’s proposed amendment to the NJ’s Clean Air Act mandated “State Implementation Plan” (SIP) for fine particulates – based on an outdated 2006 standard. The DEP proposal requires EPA approval.

The DEP announcement essentially bragged that NJ was in compliance with EPA national air quality standards for particulate matter:

Proposed State Implementation Plan (SIP) Revision: Maintenance of the Fine Particulate Matter (PM2.5) 24-hour 35 µg/m3 NAAQS, Limited Maintenance Plan (LMP)

Date Posted: January 10, 2023

This proposed SIP revision is the second PM2.5 maintenance plan for the 2006 24-hour PM2.5 standard of 35 µg/m³ for both of New Jersey’s multi-state areas (the Northern New Jersey, New York and Connecticut area, and the Southern New Jersey, Pennsylvania and Delaware area) in accordance with the requirements of CAA Section 175A.  This SIP revision demonstrates New Jersey’s continued compliance with the 2006 PM2.5 24-hour 35 µg/m³ NAAQS. 

In seeking EPA approval of a “Limited Maintenance Plan”, the DEP is basically doing the absolute bare minimum that the Clean Air Act legally requires.

Here is the DEP public notice on the proposed SIP revision. Note this:

A public hearing concerning the Department’s proposed SIP revision will be conducted only if requested in writing by January 25, 2023. [..]

Written comments may be submitted by close of business, February 17, 2023. Please email comment(s) as a document attachment to: NJDEP-BAQP@dep.nj.gov and include “PM2.5 Maintenance Plan 2023-1” in the subject line of the e-mail.

Here is the DEP proposed SIP revision.

This is just an initial heads up post – I’ll followup up with a substantive post after I get to read the EPA and DEP documents.

Maybe some intrepid journalist might want to hold DEP accountable and educate the people of NJ about unhealthy air pollution that destroys their health.

Of course, maybe former DEP air pollution staffer Anjuli Ramos now over at Sierra Club might weigh in and hold her former employer accountable. I’m not holding my breath on that.

I will assume that the national clean air focused groups have the resources and will respond to the far more important EPA NAAQS proposal and limit my review to the NJ SIP revision.

“Keep It Green” Coalition Spent Over $1 Million On Ad Campaign That Misled Voters

As the Director of the NJ State Park Service now coping with the reality that our entire Parks capital budget will be completely eliminated beginning July 1, 2015 as a result of the YES vote I can say this is the darkest day I have faced in my professional career. Worse than Superstorm Sandy. ~~~ NJ State Parks Director Mark Texel

NJ Spotlight ran a story today about the dire state of funding for State Parks, see:

• Park advocates urge Murphy to end funding shortfall

These conservation groups are now park advocates? They stole parks money! They benefited from some of that money for their own organizations.

• Green Greed – Reduced Funding For Public Lands, More Money To Private Groups

I think this is the third article NJ Spotlight has run on the same story, based on a report by conservation groups. So, I sense that it is part of the same corrupt foundation funded driven news coverage, e.g. Wm. Penn Foundation funds a campaign and funds news coverage of it.

Once again, incredibly, despite discussing historic parks funding levels, Spotlight failed to report the fact that previously Constitutional dedicated funding for State Parks was terminated and those funds were diverted (stolen) by the Keep It Green campaign and that those same private groups benefited financially from new “stewardship” funding.

In other words, they feathered their own organizations’ nest at the expense of State parks and they lied to the voters about that.

Any restored funding policy must begin my ending the allocation of funding to private groups and their “stewardship” projects. Keep It Green must give back the funding they diverted!

I’ve written this story many times and so has the NJ press corps, e.g. see this Bergen Record  story:

• Budget cuts doom state parks to disrepair“

Some environmentalists say the amendment had an unintended but severe impact on the Natural and Historic Resources capital budget. The budget had been replenished each year from the same tax, a dedication secured in a prior, 2006 voter-approved constitutional amendment. That amendment was to provide a “reliable and stable source of funding” that would enable the DEP to make “long-term investments in the state park system,” according to a 2013 draft of the state’s Comprehensive Outdoor Recreation Plan.

It provided about $15 million annually, and would have doubled to $32 million in 2016. ...

Mark Texel, head of the New Jersey Division of Parks and Forestry, called it a “massive blow” and said in a Facebook post soon after the vote that it was “the darkest day I have faced in my professional career.” [**Note: he called it “worse than Sandy“]

“We had a plan to really tackle some of these major capital projects that had been deferred for many, many years,” Texel said. “And we were making progress. Suddenly now our capital budget is having the legs cut out from underneath it. … It was disappointing, I admit. I was very disappointed. […

Bill Wolfe, director of the non-profit Public Employees for Environmental Responsibility, said he didn’t believe that voters in 2014 knew this would happen.

He accused NJ Keep It Green of “intentionally, knowingly” stripping state parks of capital funding to finance Green Acres so they wouldn’t have to ask voters to approve a bond. That, he said, let open space groups avoid a public brawl with Governor Christie, who has demanded no new debt be placed on taxpayers. The coalition, he said, “didn’t have the spine to fight for the money.”

The Star Ledger also wrote the story.

NJ.Com reported the story in the wake of passage of the Constitutional amendment:

• Fight Over Open Space Money Brews After Ballot Question Passes

[…]

Bill Wolfe, the head of the New Jersey chapter of Public Employees for Environmental Responsibility, said voters were “actively misinformed” about the “unprecedented, deep cuts” brought about by the ballot initiative, blaming the Keep It Green coalition for overemphasizing the benefits to open space and downplaying the cuts.

“The public was duped on this,” Wolfe said.

Wolfe recommended restoring funding for state parks and the DEP, which could see significant staff cuts from the shortfall, before appropriating money elsewhere. (He outlined those recommendations on his blog here.)

So, this is no secret and Spotlight is grossly negligent for not including it in their story. And they are doing it intentionally.

Here’s the note I just sent reporter Jon Hurdle – he’s shameless too because he knows this happened and won’t report it:

Jon – Former State Parks Director said this about the theft of State parks funding by the Keep It Green Coalition campaign – but by the same groups you quote today -:

State Parks Director Texel’s devastating words:

“As the Director of the NJ State Park Service now coping with the reality that our entire Parks capital budget will be completely eliminated beginning July 1, 2015 as a result of the YES vote I can say this is the darkest day I have faced in my professional career. Worse than Superstorm Sandy.”

Why not ask them about that? Or about the parks money that now goes to “stewardship” and funding of private conservation groups who stole the State parks money? Or the more than $1 million advertising campaign they waged to mislead voters on the Open Space funding ballot question? These people are shameless! Details, see:

http://www.wolfenotes.com/2014/11/stewardship-for-whom-public-parks-or-private-lands/

Wolfe

Environmentalists Claim Positive Impacts That Even DEP Doesn’t

Environmental Claims Reveal Incompetence And Political Cheerleading

Usually, I am forced to criticize DEP for exaggerating or completely making up environmental benefits of their proposed rules and minimizing the flaws and loopholes.

But in this case, it’s the environmentalists – not the DEP – who are the ones exaggerating the benefits and fabricating flat out false claims. And they are not even mentioning the major flaws!

Why would environmental groups make unfounded and false claims praising DEP’s proposed rules, when not even DEP is making those claims?

Specifically, environmental groups – led by Sierra Club and Clean Water Action – issued an action alert today to their members urging them to testify at DEP’s hearing on Wednesday on proposed flood rules (see my prior post on that).

The Alert provides a misleading and false summary of the DEP’s proposed inland flood rules, starting with three major blatantly factually false claims, which I bullet verbatim below in italics (emphasis mine) and rebut below in red:

“The Inland Flood Protection updates include:

• Using current rainfall information in designing stormwater management systems

FALSE: the DEP did not use the storm event frequency, rainfall, stormwater volume, or flood elevations that NJ has experienced in several major storms and floods over the last 2 decades. DEP continued to rely on the obsolete 100 year storm, plus a 25% “safety factor”

• Designing stormwater systems to treat the larger storms that are expected to occur by 2100. 

FALSE – climate models predict even larger than the 500 year storms we’ve already been hit by. See above.

• Requiring new development to stay out of the current floodplains of rivers. Currently, we underestimate these floodplains because we use 20-100 year old data that does not account for recent development and increased rains due to climate change. 

FALSE – there is no such mandate to “require new development to stay out of current floodplains”.

In fact, in addition to no such requirement, the proposal even fails to repeal the Christie DEP rollback of the 300 foot buffers on C1 streams that allows new development to encroach on streams.

These falsehoods reveal gross incompetence of the technical requirements of the regulations at issue.

They also suggest a corrupt cozy relationship with the Murphy DEP.

You can check the DEP’s own press release and compare the DEP’s claims with the environmentalists claims above. DEP never says the rules would “require new development to stay out of current floodplains”. DEP also does not make blanket claims about future storms.

Get the facts! Read this:

• Murphy DEP Proposed Inland Flood Rule Is Seriously Flawed

The alert even starts off with a misleading claim (that sounds exactly like the DEP press office spin – so I will assume former DEP staffer Anjuli from Sierra Club wrote it!)

The New Jersey Department of Environmental Protection is asking to hear from you on the proposed Inland Flood Protection Rules.

DEP is legally required to allow public testimony – they are not “asking to hear from you”. Another lie.

DEP Holds Public Hearing On Wednesday

Faux Green Cheerleaders And Media Are Not Disclosing Flaws

The DEP is holding a public hearing on proposed new inland flood protection rules Wednesday (1/11/23), so we thought we would post a summary of our initial review comments we posted back on October 30, 2022.

Unfortunately, the environmental groups are supporting and cheerleading for this proposal and ignoring serious flaws, such as:

• the proposal is based on the 100 Year Storm event, despite NJ having suffered several 500 Year Storms
• the proposal is scientifically obsolete before it is adopted 
• DEP ignores land use planning and instead relies on the myth of “Resilience”

Below is an overview. We provided this analysis to environmental leaders and Jon Hurdle at NJ Spotlight, so they are aware of and knowingly downplaying these flaws.

1. Just as we predicted, DEP based the rule on the 100 year storm event, despite the fact that NJ already has experienced several far more severe 500 year storm events.

We predicted DEP would do that back in February, when DEP released their Cornell rainfall study, see:

• Murphy DEP Signals That New Jersey Is About To Repeat The New Orleans Katrina Debacle

I explained the significance of the flawed 100 year storm in this September 4, 2021 post:

• Billions Of Dollars Spent On NJ Infrastructure “Resilience” Is Already Obsolete, As DEP Fails To Update Regulations To Reflect Climate Science

The US Army Corps of Engineers recently were forced to admit a similar huge engineering blunder in New Orleans, due to reliance on flawed design standards, a $14 billion mistake: (Federal Register Notice, 4/2/19)

Even NJ Spotlight understands the 500 year storm see:

• State Wants Sewer Plants to Plan for 500-Year Storms, Extended Outages

DEP’s proposal documents the fact that NJ has suffered 500 year (or more) Storm events and flooding (@ page 10):

Specifically, the remnants of Tropical Storm Ida resulted in flooding significantly more severe than FEMA’s published 100-year flood at various locations in New Jersey:

Raritan River at Bound Brook:

• Flooding during Tropical Storm Ida equaled 1999’s Hurricane Floyd, which was the highest elevation ever recorded at Bound Brook.
• Including Floyd, flooding at this location in the past 23 years has equaled or exceeded FEMA’s 500-year flood elevation three times.
• The Raritan River during Tropical Storm Ida peaked at 42.13 ft NGVD (41.21 ft NAVD) which is 3.01 feet above FEMA’s 100-year elevation (38.2 ft NAVD) and 0.21 ft above FEMA’s 500-year flood elevation (41.0 ft NAVD).

Raritan River at Bridgewater

• Flooding during Tropical Storm Ida peaked at roughly FEMA’s 500-year flood elevation (41.0 ft NAVD) which is 2.8 ft above FEMA’s 100-year flood elevation (38.2 ft NAVD)

Millstone River at Manville:

• Flooding during Tropical Storm Ida peaked at roughly one foot above FEMA’s 500-year flood elevation (43.5 ft NAVD) which is 2.5 ft above FEMA’s 100-year flood elevation (41.0 ft NAVD). Thus, flooding at this location peaked at approximately 3.5 feet above FEMA’s 100-year flood elevation.

DEP then explains the significance of the 500 year flood event: (@page 11)

These examples illustrate not only that Ida was a significant flood event that exceeded the anticipated flooding depicted on available flood mapping products, upon which many roads and buildings were financed, constructed, and insured in the impacted communities, but also that there is an upward trend in the number and severity of flood events in the State. As noted above, flooding in Bound Brook has exceeded FEMA’s 100-year flood elevation four times and FEMA’s 500-year flood elevation three times since 1999, which leads to the conclusion that we are already experiencing increased flooding as compared with past recurrence interval calculations.

Despite the facts that NJ is already experiencing 500 year floods. Now. Today.

Climate science projects that extreme storms will significantly increase in rainfall amount, rainfall intensity (short severe bursts of rainfall that create floods), and extreme rainfall frequency, yet the DEP did not even use the 500 year storm.

Instead, DEP merely added a 25% “safety factor” addition to the current 100 year storm event they’ve been using for decades.

And look how they then falsely stated that it would be adequate – a statement made before the facts on 500 year storms are summarized on page 10-11: (@page 5):

This rulemaking incorporates anticipated greater depths of precipitation for the two, 10, and 100-year storm events for the purposes of stormwater management.These proposed amendments are necessary to ensure that buildings, roads, stormwater management features and other structures are designed and constructed to manage and be protective for today’s flood conditions and precipitation as well as anticipated future conditions and precipitation. […]

Specifically, the flood hazard area design flood elevation is based on a flood that is 25 percent greater than the 100-year peak flow rate in the stream or river being analyzed and mapped.

The technical regulatory fine print for this proposed standard is found on page 102:

6. Table 3.6B below sets forth the change factors to be used in determining the projected 100-year storm event for use in this chapter,

The 100 year storm – even with an additional 25% “safety factor” increment – can not “ensure that buildings, roads, stormwater management features and other structures are designed and constructed to manage and be protective for today’s flood conditions and precipitation as well as anticipated future conditions and precipitation.”

That proposed new standard is already exceeded right now, never mind the larger storms driven by projected climate driven increases.

DEP admits this multiple times in the proposal:

“More than 12 rivers exceeded their 100-year flood levels”

“On August 27 and 28, 2011, Hurricane Irene resulted in record breaking floods on many New Jersey streams, with 33 USGS stream gauges recording peak flows equal to or greater than the 100-year recurrence interval (USGS, 2011).”

DEP itself exposed the inadequacy of the 100 year design storm for the purpose of justifying their new 25% “safety factor”.

But, ironically, in doing so, DEP also exposed the flaws in relying on the 100 year flood.

2. DEP Ignores Land Use Increases In Development. DEP’s proposed new standards are obsolete for the same reasons that DEP correctly rejects current rainfall methods

Just some basic observations make it obvious that, in addition to underestimating extreme rainfall amounts and flood elevations, DEP is failing to consider a basic driver of increased flood impacts.

Flooding is a combination of the amount and timing of rainfall and the ability of the landscape to absorb that rainfall.

NJ is a highly developed state.

Development has destroyed forests, wetlands, and natural landscapes that absorb rainfall and dampen flooding. It also puts people and property at risk when located in areas prone or vulnerable to flooding.

Development also increases impervious surfaces that dramatically increase the generate stormwater runoff volumes.

Yet the DEP proposal ignores the changes in land use and impervious surfaces that generated huge volumes of stormwater that contribute to bad land use decisions that result in devastating deadly flooding.

The proposal ignores existing development, it will influence new development at the margin, and it therefore depends on market forces, not any overarching State Land use and climate plan or infrastructure investment program.

A critical Star ledger editorial got that:

“A lot of New Jersey was developed prior to the stormwater regulations,” Obropta said. “The state needs to require municipalities to begin retrofitting existing development with stormwater management if we have any hope to reduce flooding.”

There is “no hope”. The proposal ignores existing development.

The proposal does very little to cap or reduce impervious surfaces or stop the loss of natural lands like forests, wetlands and stream buffers. It guarantees that the flooding problems will get worse.

3. DEP Rejected A Land Use Planning Approach And Policy Of “Strategic Adjustment” And Relies Primarily On Engineered “Resilience”.

The most cost effective and environmentally sound approach to stormwater management and flooding – particularly in light of projected climate driven more extreme weather events – is land use planning backed by regulation. That approach would include putting teeth in DEP’s current scattershot reactive reliance on voluntary “willing sellers” in the “Blue Acres” land acquisition program and restrictions on NJ’s “right to rebuild” storm damaged properties.

DEP has land use planning and regulatory powers that can be deployed to promote “strategic retreat” from flood prone lands, restrict rebuilding of flooded structures, and stop building in flood prone places or places that destroy forests, stream buffers, and wetlands. see:

• NJ Flood Law Is Flawed And Murphy DEP Is Abdicating Its Regulatory Role In Flood Protection

Any assertion of State and DEP land use planning powers is such a taboo topic, DEP doesn’t even talk about it anymore. Not even in the narrative description, never mind the regulatory text of the proposal. see:

But DEP effectively abandoned land use planning in favor of the slogan “resilience”, and they openly admit it:

As the State repairs the damage from these devastating impacts, it is in the interest of the public’s health and safety that future development of public and private  structures is as resilient as possible to withstand the increasing frequency and intensity of precipitation events, such as Ida.

And even highly technical details – and there are a lot of them that I have not considered today – like the groundwater recharge requirements retain the 2 year storm volume and flawed average annual recharge approach – which are overwhelmed by extreme weather – do little to nothing to reduce flooding.

In addition to getting the science and regulatory details wrong, the entire DEP approach is fatally flawed and based on the myth of “resilience”.

Resilience is much like flawed coastal engineering (sea walls, beach replenishment, etc) and hard engineered flood control projects. They give a false sense of security, cost a ton of money to build and maintain, and don’t work.

We can’t engineer and build our way out of this mess. And it will only get worse.

 

Murphy DEP Commissioner LaTourette is a former corporate lawyer who litigated and won an NRD case representing a NJ chemical company known as Essex Chemical, a subsidiary of Dow chemical. He knows the legal and scientific weaknesses of DEP’s NRD program, yet has done nothing to correct, reform and strengthen them.

Below is an outline and bullet points of the 10 top reasons why DEP’s proposed settlement with BASF for natural resource damages at the Ciba-Geigy Toms River Superfund site is flawed and must be withdrawn.

I need to do additional research to document each point. I encourage others with knowledge and expertise to conduct their own research and I would be glad to receive support and post that information here.

Here is a link to the draft Settlement.

Here is a link to DEP’s Office Of Natural Resource Restoration webpage.

The public comment period closes on February 3, 2022 – people can submit comments to DEP at this email address:  onrr@dep.nj.gov

I) The Settlement Surrenders And Lacks Important Legal And Financial Protections

For context and to illustrate omissions and flaws in the DEP BASF settlement, compare it to a recent NRD Settlement between the US Department of Justice and BASF at the Passaic River Superfund site.

Note that the US DoJ settlement is based on a structured, transparent, public, and science based process for NRD damage assessment, recovery and restoration planning and design.

DEP has none of that.

Note that the USDOJ settlement is partial and not final. Note how it estimates the value of the settlement ($73.5 million for a 5 acre park). It also anticipates a future science based natural resource injury final Report as the basis for additional compensation and restoration requirements.

Note the USDOJ BASF settlement requires a $1 million escrow account for 30 years of maintenance of a 5 acre park. The costs for maintaining a 1,400 park could be far higher at BASF site, with millions more for science, public education and various environmental data collection and monitoring. Yet there are inadequate escrow and mandatory obligations, and they should run for far more than 30 years – at least until all pollution is cleaned up.

DEP would provide BASF with a blanket covenant not to sue, in perpetuity (See also Appendix A):

8. The Department fully and forever releases, covenants not to sue, and not to otherwise take administrative action against BASF and its corporate officers, directors, employees, predecessors, parents, successors, and subsidiaries, for any and all of the Department’s causes of actions for Natural Resource Damages arising from discharges at or from the Site.

This lets BASF completely off the hook and is reckless, given uncertainties, lack of data on actual natural resource injuries or their economic value, regional impacts, and future conditions and unknowns.

DEP admits this kind of uncertainty and future unknowns in the draft settlement document itself  – and amazingly allows BASF to determine the economic value of NR injuries in the event that something goes wrong:

23. d –

iv. If within 90 days the Department determines in its sole discretion that on-site institutional and (as deemed necessary) engineering controls cannot be implemented and that a new project cannot be performed on-site, BASF shall identify additional off-site NRD projects acceptable to the Department;

v. If after additional 90 days the Department determines in its sole discretion that a project cannot be performed on-site or off-site, BASF will satisfy its NRD liability for this particular project(s) area by a lump sum payment in the amount for the cost of the project(s) which shall be established by BASF and reviewed and approved by the Department.

There are inadequate obligations to guarantee long term funding for Operations and Maintenance, and for funding the monitoring and science projects outlined in the settlement.

There are no prohibitions or restrictions on BASF using the settlement for corporate tax breaks. With the sale of land for development and tax breaks, BASF could possibly profit from this settlement.

II) DEP Failed To Document, Assess, And Estimate The Economic Value Of Natural Resource Injuries

I submitted an OPRA public records request for DEP documents that document, assess, and quantify the natural resource injuries and estimate the economic value of natural resource injuries, including the “Baseline Ecological Assessment” that is required under the DEP’s toxic site cleanup program regulations.

DEP was forced to admit that they had none.

Without quantifying the natural resource injuries and their economic value, DEP was flying blind in negotiations with BASF.

With no documented estimate of the extent of natural resource injuries or the value of the damage – including lost use of these resources – the public has no way of knowing if DEP secured adequate compensation and restoration and whether deal is in the public interest, or another pennies on the dollar corporate giveaway.

III) DEP Is Using the NRD Settlement To Weaken Cleanup Standards And Promote Development 

The DEP did not require BASF to preserve the entire 1,400 acre tract.

The settlement divides the tract into three parcels, one of which will be sold for development.

17. …. The Preservation Acreage will be protected through the recording of
three Deed of Conservation Restriction (DCR): (1) one for approximately 535 acres (DCR Settlement Area 1 or Forested Parcel) as described in Schedule A; (2) one for approximately 255 acres (DCR Settlement Area 2 or Project Parcel) as described in Schedule B; and (3) one for approximately 210 acres that will be retained by BASF indefinitely (DCR Settlement Area 3 or Retained Parcel) as described in Schedule C.

Local officials have blasted BASF for challenging local property taxes on the basis that the land was undevelopable, and now DEP will allow them to profit even more.

The DEP would allow relaxed cleanup standards on that tract.

19. A licensed site remediation professional (LSRP) will evaluate the results of the sampling program referenced in Section 23.d. to confirm, subject to provisions in Section 23.d, that sampling results within surface soil (0 to 2-feet below ground surface) meet the Department’s residential soil remediation standards within DCR Areas 1 and 2. The LSRP will also evaluate the results to confirm that the soil sampling results for DCR Area 3, within surface soil, meet the Alternative Remediation Standards approved by the Department (Approved ARS) for DCR Area 3 and are therefore protective of restricted use of the adult maintenance worker.

This section requires additional research and writing.

IV) Significant Natural Resource Injuries Were Ignored

Based on the DEP presentation to environmental groups, it seems like DEP is asserting groundwater injury as the only NRD injury that must be considered and compensated for.

DEP NRD lawsuits assert a broad array of natural resource injuries.

Ciba-Geigy’s discharges of hazardous chemicals was regional in scope: the ocean, fisheries, Toms River, and the inland coastal aquifers, surface waters, wetlands, forests, fish, wildlife and aquatic biota all were impacted and injured.

There is no evidence I could find that suggests that these injuries were assessed, quantified and recovered and/or will be restored.

In fact, the draft settlement itself claims that specific studies cited in the settlement – which are remedial cleanup documents and do NOT include NRD assessment documents – adequately provide a basis for the settlement:

10. The Department finds that the information provided in the reports referenced in the paragraphs above is sufficient to form a rational basis for determining the nature and extent of natural resource injuries arising from the discharges and for determining the nature and extent of BASF’s alleged liability for Natural Resource Damages, defined below, arising from the discharges at the Contaminated Site.

[11.]

12. Contingent upon BASF’s completion of the NRD Settlement Project together with payment to the Department in accordance with paragraph 18 of this Settlement Agreement, the Department finds and agrees, that the value of the NRD Settlement Project provided in this Settlement Agreement will offset the injuries to natural resources caused by the discharges of hazardous substances. The Department therefore finds and agrees, subject to these contingencies, that the value of the compensation provided in this Settlement Agreement constitutes BASF’s fair share of Natural Resource Damages addressed in this Settlement Agreement.

This is unacceptable. DEP made these finding without quantifying the value of the actual damage. Or even the value of the land BASF will preserve.

This section requires additional research and writing.

V) Common Law Doctrines of Trespass And Public Nuisance Are Absent

Claims involving Common Law Doctrines of Trespass And Public Nuisance are included in all DEP NRD lawsuits.

But I could find no evidence that Trespass and public nuisance were incorporated in the settlement.

I can think of no greater “trespass” than off-site migration of toxic chemicals that poison and force shut down of public water supplies and individual homeowner wells, or threaten vapor intrusion into people’s homes. (see the red arrow above to note how the groundwater plume is under people’s homes).

The draft settlement claims that public issues were addressed, but did this analysis include vapor intrusion? In March 2001, DEP was still ignoring vapor intrusion risks and had not yet incorporated vapor intrusion into the DEP cleanup program:

8. In March 2001, the State of New Jersey completed a Public Health Assessment that, among other things, determined that ground water at the Contaminated Site was contained, and that other public health exposure pathways had been interrupted.

There were historic discharge of billons of gallons of chemical wastewater, surface runoff, and migration of contaminated groundwater to the ocean and the Toms River.

VI) Groundwater Injury Was Narrowly Defined And Not Quantified

Is there a comprehensive inventory and cost estimate of all the public and private money spent over the last 40 years to respond to Ciba- Geigy’s pollution impacts on public water supply systems and private drinking water wells? Those are all NRD injuries that must be compensated.

In this Spotlight interview, former corporate lawyer DEP Commissioner LaTourette emphasized the need to hold corporate polluters accountable and make them pay to cleanup NJ’s drinking water (starting at time 2:33 – emphasis mine):

[treatment technology] has a cost, a cost that the water systems and the residents of NJ should not pay. Because the cost of curing what has befallen our water in NJ should be borne by those who caused it. The companies that put this material into the stream of commerce in the first place.

Where in this draft settlement has BASF compensated the public for these costs?

All DEP NRD lawsuits include extensive and broad claims about the importance of groundwater, in terms of public water supply as well as a result of inter-connections with surface water and wetlands. There are ecological injuries resulting from those inter-connections and also physical impacts like salt water intrusion and land subsidence.

This would include the impacts and injuries of poisoning billions of gallons of groundwater, plus the effects and injuries caused by pumping and treating and discharging billions of gallons of water. The impacts are significant and regional in scope.

I could find no evidence that the DEP considered the full scope of these injuries and their is no way to know how these injuries were considered and factored into the settlement.

VII) The Restoration Plan Is Low Cost, Underfunded, And Deceptive

I will do an individual post of the restoration plan and long term science, monitoring and maintenance issues.

But let me note here that DEP’s 12/2/22 power point presentation of it to environmental groups relies on deceptive visual manipulations, like posting side by side photos and artist renditions of a fall/winter brown landscape with an artist’s rendition of a green spring/summer landscape.

There also could be public health risks of access to the site. DEP has required studies (which are superficial PA/SI screening methods  and totally inadequate), so this shows that there are still unknowns.

VIII) DEP Failed To Learn From Prior Mistakes And Legal Defeats

The DEP NRD program has suffered from a lack of science based regulations and methods to quantify natural resource injuries. NJ Courts repeatedly have rejected NJ DEP NRD lawsuits on this basis.

1. A prime example of that was when DEP had a weak legal hand and cut a very bad deal in the notorious Exxon settlement, where DEP settled for just $225 million on an $8.9 BILLION damage claim (less than 3 cents on the dollar) –

As we exposed at the time, read the NJ Law Journal’s excellent analysis of that fiasco:

… some lawyers and environmental advocates said the state’s failure to adopt a methodology for calculating damages for harm to natural resources through the formal rule-making process—as it committed to do more than a decade ago when it settled another suit—weakened its negotiating position and led to a lower settlement in not just the Exxon case but in other natural resource damage suits it has brought. […]

Wolfe said the lack of valuation rules leaves the state vulnerable to challenges on the amount of damages.

The state “knows it has a weak legal hand,” making it reluctant to push too hard and more willing to settle, Wolfe said.

Exxon’s lawyers are “sharp enough to know this” and to assume the state knows it is legally vulnerable, Wolfe said.

“There’s this wink and a nod going on where the DEP is saying, ‘We won’t squeeze you too hard if you just come to the table and settle,’” Wolfe said.

It’s been “a quiet little dance for 10 years,” with the state knowing it can’t get more than pennies on the dollar”, Wolfe said.

2. DEP previously got burned by accepting toxic contaminated land as compensation in a Dupont NRD settlement. The settlement was so bad that DEP had to re-open and re-litigate it.

As we exposed, read the Bergen Record’s excellent disclosure of that fiasco:

• Bergen Record story: Dupont deal gave state more tainted soil (12/6/10)

“Bill Wolfe of the Public Employees for Environmental Responsibility’s New Jersey chapter agreed. “DuPont got a sweetheart deal and DEP didn’t do their homework,” Wolfe said. “The deal must be renegotiated and DuPont forced to pay fair compensation, especially to Pompton Lakes residents who have suffered for decades.”

3. NJ Courts have rejected DEP NRD claims and ruled in favor of corporate polluters in several prior cases. Despite these legal loses, DEP has failed to rectify the legal, scientific and regulatory flaws that the Courts have found d in DEP’s NRD program.

See this NJ PEER Report I wrote on those cases, way back in 2007:

Trenton — In a stunning legal setback, the State of New Jersey cannot recover damages from polluters in what may be thousands of contaminated groundwater cases, according to Public Employees for Environmental Responsibility (PEER). The problem stems from the state’s failure to adopt regulations governing how to calculate “natural resources damages” (NRD) for polluted drinking water.[…]

“This regulatory train wreck was completely preventable,” stated New Jersey PEER Director Bill Wolfe, a former DEP analyst, pointing to repeated acknowledgements by state officials of the need to act:

• In 2002 “Vulnerability Assessments,” DEP estimated that as many as 4,600 cases may require NRD litigation which would necessitate both rule making and extending the statute of limitations. This data prompted former DEP Commissioner Bradley Campbell to say he was “astounded to find on taking office in [2002] that the [DEP] had not pursued, or left unsettled, thousands of cases against polluters responsible for a wide range of damages to New Jersey’s natural resources,” pledging to put the program “back on track”;

• In a 2004 settlement agreement of the case New Jersey Society of Environmental & Economic Development (SEED) v. Campbell (N.J. Super. Law Div., Mercer County) DEP legally committed to propose formal natural resource damage regulations; and

• At a May 24, 2005 seminar at Rutgers’ Cook College, John Sacco, Chief of DEP’s Office of Natural Resource Restoration pledged that natural resource damage regulations will “hopefully” be proposed in fall 2005. But since then, there has been no apparent activity to move rules forward.

“The corporations who had the most at stake stalled the NRD program during the Whitman administration but failed to kill it outright. Now, through inaction, the Corzine administration has provided polluters precisely the relief they sought,” Wolfe added. “Those officials responsible for these policies and blocking these regulations should be identified and drummed out of public service.”

The BASF deal replicates all these errors.

IX) The Process Appears Corrupt

This section requires additional research and writing.

Negotiation of the settlement of a lawsuit is a confidential legal process, but that does not prohibit DEP from conducting a parallel process to meet with and gauge the community’s needs and expectations for compensation, restoration, and reuse of the site. DEP failed to do this and instead blindsided the community.

The DEP lawsuit was filed back in 2007. DEP claims that BASF approached the State seeking a settlement in 2010. DEP says they began negotiations of this deal in 2019. So, this is a Murphy administration deal.

But what was the legal process over those 15 years? Did the DEP/AG aggressively prosecute the case? If not, then DEP signaled retreat a long time ago.

Did courts make any findings? We need help from the legal eagles out there!

DEP’s December 2, 2022 briefing of environmental groups was designed to generate public support for this deal and mislead the public. That was an inappropriate meeting.

Commissioner LaTourette is a former corporate lawyer who litigated and won an NRD case for a NJ chemical company known as Essex Chemical that is a subsidiary of Dow chemical. He knows the legal and scientific weaknesses of DEP’s NRD program, yet has done nothing to correct, reform and strengthen them.

There is a lot of evidence in the public record that suggests that Gov. Murphy had extensive high level and close personal and corporate relationships with BASF based on his prior role as US Ambassador to Germany during the Obama Administration and in his prior finance career at Goldman’s Sachs. He has appeared at international events involving BASF. Murphy has gone out of his way to publicly praised BASF and he voiced strong support for BASF, including providing more corporate subsidies.

Here is an example, from the Global Bridges Forum:

Governor-Elect Murphy will market international corporate/investors for Foreign Direct Investments (FDI) in his state, specifically from Germany and Israel. There is already significant German investment in NJ (BASF etc.), however Murphy feels more can be done.

BASF is a German corporation and their North American HQ is in New Jersey.

This all suggests the possibility of political influence and Gov. Murphy’s personal intervention. See another possible example here:

• NJ Gov. Murphy’s Connections To Germany Warrant Scrutiny

This section requires additional research and writing.

X) The Deal Creates A Reasonable Appearance Of Undue Industry influence On DEP

This section requires additional research and writing.

NJ’s ethics laws are based on an “appearance” standard.

Here is Gov. Murphy’s wife at a recent BASF NRD deal in East Newark: Not a good look: