WolfeNotes.com

DEP Allows Solvay’s Private Consultant To Control Cleanup

Solvay Has Concealed Information, Violated DEP Regulations, And Delayed Complete Cleanup For Over A Decade

NJ Toxic Site Cleanup Law Calls For Direct DEP Oversight Of High Risk Sites, Particularly Those Created By Recalcitrant Corporate Polluters Like Solvay

29. Immediately following the Effective Date, the Department shall adjust the Direct Oversight requirements for the Site, and Solvay shall conduct the remediation described in the JCO under the oversight of an LSRP in accordance with the terms of this JCO, (proposed settlement, @ page 27-28)

The Murphy DEP has put Solvay in charge of protecting public health and the environment. Solvay is given control over collecting and analyzing data; preparing and selecting the cleanup plans; and controlling critical information, despite their atrocious record.

The DEP’s proposed settlement that delegates these critical powers to Solvay directly contradicts NJ’s toxic site cleanup laws.

Let me explain those harsh claims, and in detail.

There is no question that South Jersey’s toxic “forever chemicals” PFNA polluter Solvay is not a responsible corporation, in terms of how they’ve managed the production, discharge to the environment, and cleanup of the class of toxic chemicals PFNA, commonly known as “forever chemicals”.

Solvay has: 1) concealed information from EPA and DEP regulators, local governments, water utilities, and the public, 2) evaded and violated DEP regulations, 3) poisoned drinking water, soil, groundwater, natural resources and people’s bodies; and 4) delayed complete cleanup for over a decade.

This long standing pattern of secrecy, negligence, evasion, willful non-compliance, and obstructionist foot dragging is well known by US EPA and NJ DEP and documented in many news media stories.

Solvay shoved secrecy demands down DEP’s throat in response to a DEP enforcement directive:

Even former corporate lawyer and current Murphy DEP Commissioner LaTourette just blasted Solvay for their intransigence: (NJ Spotlight)

‘It should not have to take a years-long enforcement action to bring a responsible party to the table. But if that’s what it takes, that’s what we will do.’ — Shawn LaTourette, DEP commissioner

If it took years to bring Solvay to the table and secure enforceable commitments to comply with DEP regulations and cleanup the toxic mess Solvay created, why on earth did DEP’s proposed settlement of a lawsuit seeking enforcement of DEP regulations allow Solvay to control the cleanup of their toxic mess?

LaTourette’s slam was widely reported nationally: (NBC News):

LaTourette said that, for years, Solvay “rebuffed” his department’s requests for environmental clean up. Yet, he said, only after years-long efforts to get the company to address these chemicals, and legal action, did Solvay take action that will help clean up the environment.

“It should not take that much,” he said, noting that the state’s efforts weren’t intended to only protect the environment. “We protect our environment in order to protect people’s health.”

The legal community, Law.com reported:

in November 2020, the DEP filed suit against Solvay and alleged that, “despite evidence of widespread contamination” at the West Deptford site, the company ”has repeatedly refused to comply with plaintiffs’ numerous directions to investigate all contamination from the Site and to pay for the treatment of all contaminated drinking water.” …

“For years, corporations, including Solvay, have put financial gain over our clean drinking water and the health of millions of people,” stated Platkin. “They have blatantly ignored the dangers posed by the PFAS ‘forever’ chemicals that accumulate in our environment and in our bodies. New Jersey has pursued those who thought they could leave their mess to someone else to clean up.”

And I found this quote from the Inquirer story particularly sickening, because I loved my grandmother who would never lie or sell out:

“We should all do what got my grandmother impressed upon me as a kid, which was to leave a place better than you found it,” LaTourette said. “That is the obligation of Solvay and every actor whose activities contaminate our environment. … It should not have to take a years-long enforcement action to bring a responsible party to the table. But if that’s what it takes, that’s what we will do.”

I loath this hypocrite.

Given this history, why are there no mandatory public disclosure, public participation, and public records law (OPRA) requirements in the proposed settlement, given this corporate pattern of secrecy? Why did DEP allow Solvay to control information? Here is the LSRP regulatory status -(see page 5)

An LSRP’s data and records are not “public records” as defined in the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq. As a result, an LSRP has no obligation under OPRA to provide the public with access to his or her records. An OPRA request for such records is available after the LSRP has submitted them to the Department along with a response action outcome. Until that time, the person interested in such records will have to contact either the LSRP or the person responsible for conducting the remediation to gain access to those records.*

This is highly irresponsible, bordering on insane.

NJ’s Site Remediation law explicitly requires DEP direct oversight of sites that are highly complex, pose high risk to public health and the environment, or where a recalcitrant polluter is responsible for the mess.

The NJ law establishes two types of direct DEP oversight. There are contaminated sites where the law mandates direct DEP oversight (“shall”) and situations where the law allows DEP to assume direct oversight (“may”). Both situations apply with respect to Solvay, so DEP is clearly violating NJ cleanup laws and not appropriately exercising discretion in the proposed settlement.

Here is the applicable legal text. (emphases mine)

58:10C-27. Direct oversight of remediation by department; conditions

a. Except as provided in section 1 of P.L.2013, c.283 (C. 58:10C-27.1), and this section, the department shall undertake direct oversight of a remediation of a contaminated site under the following conditions:

(1) the person responsible for conducting the remediation has a history of noncompliance with the laws concerning remediation, or any rule or regulation adopted pursuant thereto, that includes the issuance of at least two enforcement actions after the date of enactment of P.L.2009, c.60 (C.58:10C-1 et al.) during any five-year period concerning a remediation;

(2) the person responsible for conducting the remediation at a contaminated site has failed to meet a mandatory remediation timeframe or an expedited site specific timeframe adopted by the department pursuant to section 28 of P.L.2009, c.60 (C.58:10C-28), including any extension thereof granted by the department, or a schedule established pursuant to an administrative order or court order; […]

Even DEP admits this. According to DEP: (emphasis mine):

As I wrote:

1) It is baffling that DEP allowed Solvay to conduct the sampling and cleanup under the control of a private consultant, known as an “LSRP”, for Licensed Site Remediation Professional. This is exactly the kind of high risk site and major corporate polluter noncompliance and negligence that should trigger mandatory direct DEP oversight. It is absurd for DEP to continue to privatize the cleanup of a site that DEP had to file a lawsuit to enforce existing cleanup regulatory requirements.

Here are just two key examples of that, which is repeated multiple time throughout the proposed settlement for virtually all requirements DEP imposed: (@ page 23)

DEP has put Solvay in charge of public health, despite their atrocious record.

2) This provision is disgraceful – DEP promises to work hard to comment on Solvay’s work, with deadlines!! And notice that there is no PUBLIC COMMENT on Solvay’s work:

“34. The Department shall make good faith efforts to provide comments to Solvay’s LSRP on the documents specified in Paragraph 33 or to approve such documents (in accordance with its statutory and regulatory obligations) within 120 days of receipt by the Department.”

3. Holy shit! The DEP relieved Solvay of important regulatory requirements and delegated the complete control of the cleanup, including selection of the cleanup plan, to Solvay – and with no public notice and comment period: (@ paragraph #35, page 31)

“c. Solvay’s LSRP need not submit a direct oversight remediation summary report ordinarily required by N.J.A.C. 7:26C-14.2(b)(2)(v);

d. Solvay’s LSRP need not submit a feasibility study to the Department for approval as ordinarily required by N.J.S.A. 58:10C-27(c)(2) and N.J.A.C. 7:26C- 14.2(b)(3); and

e. Notwithstanding the provisions of N.J.S.A. 58:10C-27(c)(3), Solvay’s LSRP may select the remedial action to be implemented at the Site.”

4. DEP did not require that all documents be made public, be made available to the public, and subject to the Open Public Records Act. Just the opposite: just Solvay and DEP will have control of the documents:

“37. Solvay and its LSRP shall provide information and documents related to the Remediation Activities described in this JCO when requested by the Department, which information and/or documents shall be submitted to the Department by the later of (i) 14 days prior to the date of the next quarterly meeting scheduled pursuant to Paragraph 36 or (ii) 28 days after the request for such information and documents is made, unless an extension of time is provided by the Department, which extension shall not be unreasonably withheld.”

This seriously flawed proposed settlement agreement can not stand. It is not yet final.

It is legally subject to a 60 day public comment period and must be approved by a judge.

In submitting your comments to DEP, be sure to state clearly the “this proposed settlement is not in the public interests and is bad public policy” – that is the legal standard a judge will apply. Be sure to state the reasons why and provide any facts and documentation you can find.

DEP will publish a formal notice of the proposed settlement, together with the proposed settlement agreement in the New Jersey Register on August 7, 2023. Public comments on the proposed settlement will be accepted through October 6, 2023.  Interested persons may submit comments on the entry of this Consent Order on the Department’s website(https://dep.nj.gov/solvay/) or sent via email to solvaysettlement@dep.nj.gov. All comments must be submitted within 60 calendar days of the date of this public notice.

Additionally, if enough public outcry ensues, it is possible to pressure the Governor and/or Legislators to force DEP to withdraw the proposed settlement and remove the terrible provisions I’ve highlighted.

Gov. Christie’s Notorious Exxon $225 Million Sweetheart Deal Was Larger

No comment on anything- DEP Budget cut – staffing down, parks falling apart , Clean Energy Fund Raided, No climate fund – but money for beach replenishment-  So on – ~~~ Keen observation from a longtime NJ environmental leader

In what could be an historic example of political cowardice, NJ environmental groups had “no comment” on the Murphy DEP’s alleged “historic” proposed settlement on toxic “forever chemicals” PFNA’s.

NJ Spotlight reporter Jon Hurdle tells us:

Three environmental groups who have long accused Solvay of PFAS pollution reserved judgement on the settlement until they had examined its terms.

Even worse, Philadelphia Inquirer reporter Frank Kummer reports:

Tracy Carluccio, deputy director of the nonprofit advocacy group Delaware Riverkeeper Network, said she remains cautious about the settlement until more details are available, saying about her group and other organizations that “we all need to see the details and do a deep dive on them before we say too much, either positive or negative, on the proposed Solvay settlement.”

“No one should be rushing to make pronouncements,” Carluccio said. “It’ll take days if not weeks to be able to make authoritative statements.”

What? “Rushing to make pronouncements”? “deep dive”? It will take “days if not weeks to be able to make authoritative statements”? Are you kidding me?

(what Tracy is really saying here is “don’t listen to critics” – they haven’t read the “details” and are not “authoritative”. Not only is this the ultimate in providing DEP cover, but I find it personally offensive as my criticism is being dismissed here.)

I guess their ethically challenged buddy Murphy DEP Commissioner LaTourette didn’t give them a heads up and secret briefing and talking points and praiseworthy quotes in the DEP press release, like he did recently for the BASF settlement. For details of that fiasco, see:

• Murphy DEP Provided A Secret Briefing With Hand Picked Environmental Leaders On The Controversial BASF Toms River Settlement, Days Before It Was Made Public

The environmental groups were fully aware of the serious flaws in the Solvay settlement, because I sent my detailed analysis to Tracy Carluccio (Delaware Riverkeeper), Amy Goldsmith (Clean Water Action) Anjuli Ramos (Sierra Club), Dave Pringle (consultant) and Doug O’Malley (Environment NJ) yesterday, and did so well before reporters wrote and filed their stories.

So, they intentionally ducked and failed to criticize their friend at the Murphy DEP.

I sent the same analysis to NJ reporters Frank Kummer (see his Inquirer story), Jon Hurdle (NJ Spotlight) and Wayne Parry (Associated Press). Only Mr. Parry included my criticism, the mildest one, at the close of his AP wire story (picked up by ABC news):

Bill Wolfe, a former environmental department official and longtime critic of the agency, said much of the payments Solvay will make are required under existing environmental department regulations and should not be considered an outcome of litigation.

If you subtract the $214 million in financial assurance (which is not real money) from the $393 million, you get a paltry $179 million, which makes the Christie DEP’s notorious $225 million Exxon Settlement far larger. A fact that makes the Solvay deal – at a time when other States are recovering BILLION dollar settlements with real money – absolutely pathetic: (e.g. see this NY Times story from just last week:

• 3M Reaches $10.3 Billion Settlement in ‘Forever Chemicals’ Suits

So, instead of reposting my analysis of the settlement (especially see points #1 – #9 in End Notes – which took a coup of hours, not “days or weeks”,), let me rehash a Cliff Notes version today.

Perhaps the environmental groups can read them again and grow a spine and the press can do followup stories to correct the misleading DEP spin.

Here’s the email I sent them just now on their “no comment”:

It took me a couple of hours to read the proposed settlement and flag numerous troubling issues.

First off, $214 million is financial assurance, not real money. That fact exposes the “historic” magnitude claim as misleading (at best) and makes the Christie DEP’s $225 million Exxon Settlement larger.

Second, the large majority of the substantive requirements merely restate DEP remediation regulatory requirements.

Third, the NRD does not consider the Delaware River damages (by far the largest) and there is no DEP delineation or documentation of what, the actual Natural resource injuries are, so it’s impossible to know if the $75 million is pennies on the dollar again.

Fourth, there was no community involvement, no ongoing public process, or earmark of what the NRD money will be used for.

In terms of the quote you [Jon Hurdle, NJ Spotlight story) gave to a corporate lawyer, in a fact free speculation on Solvay’s motives for settlement, you left out the more likely possibility, based on DEP’s NRD history, that DEP offered a sweetheart deal.

Finally,other States have settled for BILLIONS, so NJ is not leading the way. For details and excerpts of the text. See:

• Murphy DEP Is Exaggerating $75 Million Natural Resource Damage Settlement For “Forever Chemicals”

[Update: A longtime environmental leader sent me this very apt note:

No comment on anything- DEP Budget cut – staffing down, parks falling apart , Clean Energy Fund Raided, No climate fund -but money for beach replenishment-So on –

DEP Claims $393 Million A Record Settlement

While Other States Recover BILLIONS For Pollution

No Mention Of Lawsuits With Major Polluters Dupont, Dow, and 3M

[Update: Associated Press (AP) wire story, by Wayne Parry: (ABC News)

“Bill Wolfe, a former environmental department official and longtime critic of the agency, said much of the payments Solvay will make are required under existing environmental department regulations and should not be considered an outcome of litigation.” ~~~ end update]

The Murphy DEP just announced an alleged “historic” proposed legal settlement with Solvay chemicals for cleanup and Natural Resource Damages (NRD) caused by the company’s “forever chemicals”, see:

• Attorney General Platkin and DEP Commissioner LaTourette Announce Proposed Settlement with Solvay Polymers Regarding “Forever Chemical” Pollution in and around West Deptford – Largest Single-site Natural Resource Damages and Remediation Case in New Jersey History

To put the Solvay deal in context, the DEP’s proposed settlement comes at a time when other States are settling “forever chemicals” lawsuits for BILLIONS of dollars, a critical fact I recently noted, see:

• Chemical Industry Attacks Bill To Ban “Forever Chemicals” PFAS

The proposed Solvay deal is very likely the smallest in a group of “forever chemicals” under DEP Directives and lawsuits DEP filed against major corporate polluters Dupont, Dow and 3M. The DEP press release provides no information on the status of litigation with these corporate heavyweights, who are pushing back hard (read the McCarter English law firm’s attack).

I previously expressed skepticism of the legal viability of the consumer fraud aspects of those lawsuits, see:

• DEP Lacks Authority To Enforce Directive Against Toxic PFOA Polluters Dupont, 3M & Dow

So I will note that there was nothing in the Solvay settlement regarding any settlement of allegations of consumer fraud.

The proposed Solvay deal combines several categories of funds, from payments to DEP for administrative costs ($3.8 million), financial assurance for cleanup ($214 million), various studies, installation of drinking water treatment systems, site cleanup ($100 million), and NRD ($75 million).

It is important to note that the financial assurance for cleanup ($214 million) and the site cleanup ($100 million) and the DEP administrative oversight costs ($3.8 million) are already required under existing DEP regulations and as such are not really an outcome based on the litigation, they are routine enforcement and cost recovery items.

Most of the settlement involves compliance with current DEP cleanup regulations that should have been enforced long ago.

Financial assurance for cleanup is a finance tool, it’s not real money – it’s like a performance bond, letter of credit or insurance policy. And none of this money goes to the DEP or the public as compensation.

Also, because DEP did not conduct an analysis of or quantify the actual Natural Resource Damages (NRD) caused by Solvay, it is impossible to know how much of those damages the DEP recovered and whether the deal adequately compensates the public. 

The DEP settled the NRD damages with little or no scientific knowledge of the actual NR damages. This huge mistake is revealed by the text of the settlement itself, which requires that Solvay conduct an ecological assessment that would document NRD injuries, something that should have been done BY DEP (not Solvay) and BEFORE any settlement: (@ page 14):

So, there is no way to know if the $75 million deal is another pennies on the dollar NRD settlement.

Given the fact that other States are settling for BILLIONS of dollars, the DEP’s $393 million appears small, as I predicted:

This is why, among many others, the DEP will very likely settle the NRD aspects in the recent PFAS lawsuit against Solvay  – and the consumer fraud and NRD aspects of the Dupont, Chemours, Exxon-Mobil, and 3M lawsuit – for pennies on the dollar.

Before I get a chance to read and analyze the proposed deal, I must note one glaring example of DEP spin.

DEP claim that the settlement is  the Largest Single-site Natural Resource Damages and Remediation Case in New Jersey History“

That is misleading because it combines what really is financial assurance for the cleanup costs with the NRD damages.

That is a highly misleading practice with respect to NRD.

The proposed settlement explicitly says the NRD is just $75 million: (paragraph #4, page 10)

b. Seventy-Five Million Dollars and Zero Cents ($75,000,000.00) for all claims for Natural Resource Damages

We will be back with a more complete analysis after I get a chance to read the proposed settlement. (see End Notes below for updates)

I just thought it important to get the context out immediately. No doubt, NJ press corps will swallow DEP spin wholesale.

[End Notes:

1) It is baffling that DEP allowed Solvay to conduct the sampling and cleanup under the control of a private consultant, known as an “LSRP”, for Licensed Site Remediation Professional. This is exactly the kind of high risk site and major corporate polluter noncompliance and negligence that should trigger mandatory direct DEP oversight. It is absurd for DEP to continue to privatize the cleanup of a site that DEP had to file a lawsuit to enforce existing cleanup regulatory requirements.

2) This provision is disgraceful – DEP promises to work hard to comment on Solvay’s work, with deadlines!! And notice that there is no PUBLIC COMMENT on Solvay’s work:

34. The Department shall make good faith efforts to provide comments to Solvay’s LSRP on the documents specified in Paragraph 33 or to approve such documents (in accordance with its statutory and regulatory obligations) within 120 days of receipt by the Department.

3. Holy shit! The DEP relieved Solvay of important regulatory requirements and delegated the complete control of the cleanup, including selection of the cleanup plan, to Solvay – and with no public notice and comment period: (@ paragraph #35, page 31)

c. Solvay’s LSRP need not submit a direct oversight remediation summary report ordinarily required by N.J.A.C. 7:26C-14.2(b)(2)(v);

d. Solvay’s LSRP need not submit a feasibility study to the Department for approval as ordinarily required by N.J.S.A. 58:10C-27(c)(2) and N.J.A.C. 7:26C- 14.2(b)(3); and

e. Notwithstanding the provisions of N.J.S.A. 58:10C-27(c)(3), Solvay’s LSRP may select the remedial action to be implemented at the Site.

4. DEP did not require that all documents be made public, be made available to the public, and subject to the Open Public Records Act. Just the opposite: just Solvay and DEP will have control of the documents:

37. Solvay and its LSRP shall provide information and documents related to the Remediation Activities described in this JCO when requested by the Department, which information and/or documents shall be submitted to the Department by the later of (i) 14 days prior to the date of the next quarterly meeting scheduled pursuant to Paragraph 36 or (ii) 28 days after the request for such information and documents is made, unless an extension of time is provided by the Department, which extension shall not be unreasonably withheld.

5. The “deadlines” are riddled with loopholes. There is a 20 day grace period and Solvay is given the opportunity to delay everything and the burden shifts to DEP to explain why an extension is not allowed. Again no public notice or participation is involved:

43. Solvay or its LSRP may request an extension of any of the deadlines required by Paragraph 33 or 37 by submitting to the Department through the Assigned Case Manager a written request no later than 14 days prior to the deadline. The written request must state the deadline for which the extension is being requested, the amount of time beyond the deadline needed to complete the required work, a description of the cause(s) for the extra time needed to complete the work, and the steps taken to minimize the extra time needed to complete the work. ….  Solvay shall not seek to extend a deadline unreasonably, and the Department shall not withhold consent for an extension unreasonably.

6. The deal includes an irresponsible and broad “covenant not to sue” that essentially waives future liability. This is totally irresponsible because there are many unknowns about the extent of contamination and the damages to natural resources. That is made obvious by the agreement itself, which mandates remedial investigation and sampling:

45. Except as provided in Paragraph 46, Plaintiffs—acting in all of their capacities, including in the Department’s capacity as parens patriae, as trustee of the State’s natural resources, as an entity with interests in real property in the State, and in its regulatory capacity—fully and forever release, covenant not to sue, and agree not to otherwise take administrative or civil action against Solvay and its respective current and former corporate officers, directors, employees, agents, predecessors, parents, successors, affiliates, and subsidiaries, for any and all causes of actions for Natural Resource Damages arising from Discharges, or any other causes of action that were brought or could have been brought, arising out of any allegations in Plaintiffs’ Complaint in the Lawsuit, including but not limited to alternative or additional theories of liability, in any way arising out of or relating to the Discharges.

7. The DEP gave Solvay a huge break on the Delaware River NRD liabilities. DEP pledged to find other polluters, deferred to the federal NRD damages assessment process, and promised not to sue Solvay. The Delaware damages are likely to be the most significant. So typical that the biggest issue is buried at the end of the document, see:

… prior to initiating any lawsuit or administrative action with respect to the Delaware River Claims, the Department agrees to work in good faith to identify other potentially responsible parties it believes could be responsible for contamination of the Delaware River and to include such parties in any such action.

b. Delaware River Claims for Natural Resource Damages: The Department further agrees that it shall not bring any future lawsuit for Delaware River Claims for Natural Resource Damages against Solvay until a Natural Resources Damages Assessment (“NRDA”) that includes miles 79 through 105 of the Delaware River has been completed by one or more of the applicable trustees under applicable Federal or State law or regulation and the trustee(s)’ determination of Solvay’s potential liability for Natural Resource Damages has been made pursuant to a procedure that allows for participation (e.g., comment) by Solvay.

8. Solvay admits no wrongdoing and DEP provides explicit legal protections to Solvay. The settlement is effectively a private contract between DEP and Solvay. This is bad public policy – why would DEP protect Solvay from other litigation, including by people harmed?:

XIV. NO ADMISSIONS OF LIABILITY

60. This JCO shall not be used as evidence in any other litigation or future proceedings other than in a proceeding to enforce the terms hereof, any other proceeding involving the contribution protections provided by this JCO, or any contribution action brought by Solvay.

61. No part of this JCO, nor the JCO as a whole, nor any activity taken by Solvay pursuant to this JCO, shall constitute, nor shall be interpreted or used as, an admission of fault, liability, law, or fact, nor shall this JCO or any Section or Paragraph thereof be admissible in any proceeding or hearing as an admission, except to the extent necessary for Solvay or Plaintiffs to enforce the provisions of this JCO or to establish the scope of the release or contribution protection provisions of this JCO.

9. Finally, the DEP provided finality and certainty that the $75 million fully compensated the public for NRD (except for Delaware River damages). DEP provided that guarantee despite the fact that they had no scientifically valid data or study that documented the extent and economic value of the natural resource injuries. Just the opposite: in this settlement, the DEP required that Solvay conduct an ecological assessment to document these injuries:

62. Plaintiffs acknowledge and agree that Solvay’s Remediation Activities and establishment of an RFS sufficient to complete all of the Remediation Activities, together with its making the payments set forth in Paragraph 4 of this JCO, including funding the Remedial Projects, compensates the public for at least Solvay’s fair share of any and all Natural Resource Damages, except to the Delaware River, caused by any Discharge, and satisfies fully Solvay’s remediation obligations related to such Discharges, except with respect to the Delaware River Claims. Plaintiffs therefore find and agree that the compensation and commitments provided in the JCO constitute at least Solvay’s fair share of Natural Resource Damages and remediation obligations with respect to Discharges, except with respect to the Delaware River.

Where Is NJ Delegation & Conservation Support For Stronger NOAA Regulations?

I’ve been disturbed by how the marine mammal and whale stranding deaths have been framed by the media and opportunistically politicized – and in a partisan fashion that ignores ocean ecosystems.

So we are pleased to have a guest post today, by Susan Russell, Wildlife Policy Director, Animal Protection League of NJ.  Susan is former VP of Friends of Animals and legislative liaison, Animal Welfare Institute. She led campaigns for NJ laws banning steel- jaw leghold traps and banning importation and sale of wild-caught birds, primarily psittacines, for the pet trade. Please read Susan’s essay:

[Update: 7/11/23 – a different version of Susan’s Op-Ed ran yesterday in the Asbury Park Press:

• The Right Whale: Do politics trump extinction for NJ delegation?

I’m told it ran in the Bergen Record too, but sorry no link. ~~~ end update]

“The right whales off our Atlantic coast are large, docile, and, despite centuries of carnage and persecution, friendly. They are also one of the most endangered whales in the world. Yet somehow, the crisis has been eclipsed by debates about wind power, even as the U.S. allows business interests to stymie emergency rules to forestall extinction.

North Atlantic right whales were the “right” whales to kill because they swim slowly and float after death. They never recovered from whaling; there are 340, or fewer, alive today, down from 481 in 2011. With only 70 breeding females left, the right whale will be functionally extinct by 2035.

The gravest human-caused threats to right whales, and to large whales globally, are entanglement in vertical-line, or rope, fishing gear, mainly for lobster and crabs, and collisions with vessels.

Right whale mothers and calves are especially vulnerable to vessel strikes and blunt force injury because they swim near the coast and the water’s surface.

As reported by the National Ocean and Atmospheric Administration (NOAA) in 2020, a right whale male calf near Cape May died of “several propeller wounds across the head and chest, and a likely skeg or rudder injury on the back that may have occurred at the same time. Based on observed evidence of healing, those wounds were likely several weeks old, but were serious enough that they may have significantly impaired the whale. The second vessel collision resulted in a series of propeller wounds and a skeg or rudder wound across the tail stock.” One calf, two vessel strikes.

Vessels of all kinds, from 35-foot recreational boats to tankers, can substantially reduce these losses simply by slowing down. In 2023 America, that appears too much to ask.

Most sailboats cruise at a speed of 4-6 knots (4.5-7 mph), with a top speed of 7 knots (8 mph or 13 km/h). Fishing trawlers go 8—10 knots; recreation and party boats like to go faster. In certain areas, and at certain times of the year, they will have to go slower.

Oceana, the global ocean protection organization, reports that Atlantic coast vessel non-compliance with speed restrictions can be as high at 90 percent in mandatory speed zones, and up to 85 percent in voluntary ones. Slowing speeds to 10 knots reduces a right whale’s risk of death by 80 to 90 percent.

Aiming to crack down on the deadly combination of noncompliance and speeding, last July, NOAA proposed regulations to expand 10-knot speed  limit requirements to vessels 35-feet and above and establish mandatory closures in high-risk areas.

I saw speeding firsthand. My dad owned a wooden sailboat, a Tor 40 sloop named “Camelot,” and we cruised the Atlantic, to New England to Maryland, during the summers. Dodging wakes from, or being cut-off by, speeding “motorboats” was a chronic, and unprintable, gripe. My father believed that sailors were closer to the sea and understood and respected it. The lobbying against the rule seems to validate that belief.

As people risk their lives at sea to disentangle right whales from fishing gear, others block lifesaving regulations. NOAA (National Ocean and Atmospheric Administration) is delaying the vessel strike for a year rule due to “pressure” from the fishing and boating industries and recreational associations.

The Maine lobster industry and its four members Congress are aggressive, blocking all proposed emergency rules to prevent the extinction. (1) Worse, Congress seems to have ceded the whale’s fate to Maine’s politicians.

In 2021 a federal court found that NOAA had failed to protect the right whale under the Endangered Species Act (ESA) and ordered the agency to produce stricter rules by 2024.

In 2022, the Maine delegation led by Susan Collins (R) slipped a rider onto the 2023 budget bill that defied the federal court ruling and prevented the NOAA deadline and protective rule until 2028, when they will try to block it again.

With right whales dying off Cape May, there are no New Jersey members of Congress on Representative Raul Grijalva’s (D-Arizona) Rescue Whales Act to repeal Maine’s prohibition on protective regulations. Why not? (1)

Meanwhile, NOAA reports that continued use of present fishing gear and methods will allow entanglement to continue at levels at least five times higher than the North Atlantic right whale population could withstand.

The North American right whale is in an extinction crisis in real time. The hour is not coming, it’s here. Everyone who needs to must rise to meet it.  When this whale is gone, who should have done what will not matter.

Railroad Company Poisoned An Entire Town Just To Keep The Trains Running

Just now read a good piece of journalism on the latest on the National Transportation Safety Board investigation of the East Palestine toxic train derailment – it will blow your mind, see:

• Federal investigation reveals “controlled release and burn” that poisoned East Palestine was unnecessary

That story jogged my addled brain to recall that one feature of this nightmare related to NJ I worked on over a decade ago:

• Gulf Blowout Prompts NJ lawmakers to Seek Increase In Polluter Liability To $1 Billion

Had that disaster occurred in NJ (like one that already has in Paulsboro), NJ Spill Compensation And Control Act would have capped liability for discharge of hazardous substances at $50 million.

[For the eerily similar prior Paulboro NJ derailment story, see:

• NTSB Issues Scathing Final Report on Paulsboro Toxic Train Derailment

I doubt that more than a handful of DEP regulators, industry lawyers, and legislators are aware of that fact.

[A Trenton friend shot me an email to note: “The $50 m cap is from 1977 -based on inflation alone $250 m today just based on inflation”.]

I was reminded that I worked on eliminating that cap over a decade ago, so I reminded NJ legislators that the bills they sponsored to eliminate that cap have died and not been reintroduced. This one should be right up former Corporate lawyer DEP Commissioner’s LaTourette’s alley! Hello!

———- Original Message ———-

From: Bill WOLFE <>

To: senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, asmmckeon <asmmckeon@njleg.org>, “asmScharfenberger@njleg.org” <asmScharfenberger@njleg.org>

Cc: “shawn.latourette@dep.nj.gov” <shawn.latourette@dep.nj.gov>, “Sean.Moriarty@dep.nj.gov” <Sean.Moriarty@dep.nj.gov>, “jonhurdle@gmail.com” <jonhurdle@gmail.com>, Robert Hennelly <rhennelly55@gmail.com>, domalley <domalley@environmentnewjersey.org>, Anjuli Ramos <anjuli.ramos@sierraclub.org>, “tracy@delawareriverkeeper.org” <tracy@delawareriverkeeper.org>

Date: 06/27/2023 3:32 PM PDT

Subject: NJ $50 M Liability Cap – East Palestine illustration

Dear Chairman Smith, Senator Greenstein and Assemblymen McKeon and Scharfenberger:

I am writing regarding previously proposed legislation, Senator Smith/Codey’s bill S2172, which was released by Committee and June 16, 2014 and Assemblyman Eustace’s bill – A4258 – which passed the Assembly 71-0 on May 15, 2015.

Both bills address serious flaws in NJ’s current $50 million cap on liability in the NJ Spill Compensation and Control Act for discharges of hazardous substances.

Both bills died and as far as I know have not been reintroduced.

As you know, since then, there have been many accidents and disasters that shed light on the flaws in the NJ Spill Act liability cap and those reform bills, most recently in the East Palestine train derailment.

Last week, the National Transportation Safety Board held a public hearing on that disaster, where Paul Thomas, vice president of health, environment, safety and security at OxyVinyls, the manufacturer of the vinyl chloride involved, testified. Thomas testified that Norfolk Southern’s decision to vent and burn five train cars of toxic chemicals had not been necessary.

Obviously, OxyVinyls is a potentially responsible party with huge liability for damages and cleanup and restoration.

But had that disaster occurred in NJ, Spill Act liability would have been capped at $50 million. That is totally unacceptable.

I strongly urge you to reintroduce and pass revised versions of those bills to eliminate the current cap and expand the scope of its application to all potential damages from disasters like East Palestine (which was similar in many ways to the Paulsboro NJ derailment disaster, so its already happened here).

Respectfully,

Bill Wolfe

c: DEP Commissioner LaTourette