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Incredible History – Smoking Gun Memo

Corzine DEP Commissioner Lisa Jackson Put That In Writing

California’s adoption of a drinking water standard for toxic hexavalent chromium triggered thoughts of a series of NJ DEP scandals we exposed 15 years ago.

In now re-reading some of those documents, I came across a smoking gun memo leaked to us that provides important historical information, particularly in light of the recent long delayed DEP regulatory action on “forever chemicals”.

People wonder why it takes so long for DEP to act to protect public health and the environment.

The DEP memos we released shed light on that question.

At the time, I viewed those memos through the lens of scientific suppression of DEP toxicological research on “forever chemical” PFOA, and issued this press release:

• Teflon Coats Public Agency Environmental Science – Jackson Sought to Have New Jersey PFOA Study Pulled from Publication

In October 2008, a PFOA risk assessment paper prepared by New Jersey Department of Environmental protection scientists was “pulled from submission for publication” under orders from then DEP Commissioner Jackson. Her rationale was the need for additional peer review, even though the paper had already been peer reviewed and was undergoing vetting before publication in the prestigious peer review journal Environmental Science & Technology.

Several months after Jackson left DEP, the study, entitled “Occurrence and Potential Significance of Perfluorooctanoic Acid (PFOA) Detected in New Jersey Public Drinking Water Systems”, was eventually published in the journal’s May 8, 2009 edition. Despite this risk assessment evidencing the need for stricter standards, New Jersey has yet to incorporate it into drinking water limits. Neither has EPA, which is grappling with the issue now under Jackson.

With respect to suppression of that science, which long delayed DEP regulatory action, we can now see exactly how that was justified and the suppression justified.

The suppression of science was not limited to the single chemical PFOA – it was institutionalized at DEP via formation of a Science Advisory Board, whose express function was to block DEP science under the guise of “peer review” (by private sector industry scientists).

Check these extraordinary smoking gun memos out (boldface mine):

The Corzine DEP Commissioner Lisa Jackson ordered Eileen Murphy, PhD., the DEP’s Director Of Science and Research, to block the release of a DEP scientific paper on the public health risks of “forever chemical” PFOA. Jackson wrote (boldface mine):

>>> Lisa P. Jackson 10/23/2008 1:29 PM >>>
Eileen,
I believe this paper should be pulled from submission for publication pending the results of a peer review by a panel of scientists. I believe the same requirement
should be applied to all scientific papers by memebers (sic) of this department that are
based on work they do for this department or data that they have access to
because of their work for this department. I thought that was the SOP now? If
not, it should be.
Lisa

Taken aback by that Order, Director Murphy responded to Commissioner Jackson, Murphy wrote:

For my own clarification – you are asking us to halt the external peer review being conducted by the journal and initiate our own DEP peer review of the paper?

Eileen A. Murphy, Ph.D.

Commissioner Jackson replied to confirm that order:

From:
Lisa P. Jackson
To:
Murphy, Eileen, Tormey, Catherine, Sondermeyer, Gary, Godoski, Jennifer,
Herb, Jeanne
Date:
Wed, Oct 29, 2008 2:50 AM
Subject:
Re: Fwd: Draft PFOA technical paper
I would like you and Jeanne to agree on a course of action. I do not believe we
will have this problem again since the new SAB will need to review any scientific
paper that is related to DEP work or data before it is published.

Did you get that?

“I do not believe we will have this problem again”. Just what was the “problem” Jackson referred to?

The “problem” was that DEP publicly released a scientific paper with data and a risk assessment that showed alarming risks to NJ’s drinking water and highlighted the need for DEP to take regulatory action.

The DEP scientists released this paper based on science and traditional scientific journal pre-publication peer review. They did not seek DEP “management” political review.

Note also how Jackson stated that this “problem” was solved: “the new SAB will need to review any scientific paper that is related to DEP work or data before it is published”.

So the SAB was designed to suppress controversial science and control DEP scientists.

The SAB was later populated with industry scientists, including a representative of Dupont.

See how that works?

You can read the complete chain of the original emails here.

So, the next time you hear the current DEP Commissioner – a former corporate polluters’ lawyer – talk about science and regulation and DEP’s so called stellar and aggressive policy and program, consider this history.

BTW, following this suppression at DEP, Ms. Jackson went on to serve a controversial one term as the Obama EPA Administrator.

She is now vice president of Environment, Policy and Social Initiatives, and a member of Apple’s executive team.

NJ Has A Long Legacy Of Toxic Hexavalent Chromium Pollution

But DEP Lacks A Drinking Water Standard For That Chemical

Christie DEP Rejected Scientists Recommendations For A Standard Back in 2010

California just adopted the nation’s first drinking water standard for the toxic chemical hexavalent chromium:

BY RACHEL BECKER

Cal Matters

APRIL 17, 2024

In an effort to protect more than 5 million Californians from a cancer-causing contaminant, state regulators today set a new standard that is expected to increase the cost of water for many people throughout the state.

The State Water Resources Control Board unanimously approved the nation’s first drinking water standard for hexavalent chromium, which is found naturally in some California groundwater as well as water contaminated by industries.

Now water suppliers will be forced to install costly treatment to limit the chemical in water to no more than 10 parts per billion — equivalent to about 10 drops in an Olympic-sized swimming pool.

For the entire article, see

https://calmatters.org/environment/water/2024/04/california-water-standard-chromium

New Jersey DEP has not set a drinking water standard for hexavalent chromium – the most toxic form – despite a legacy of major chromium pollution and DEP regulatory scandals, see:

• Garfield Chromium Case Another Vindication of DEP Whistleblower

• NEW JERSEY SLAPS GAG ORDER ON ENVIRONMENTAL SCIENTISTS – Embarrassing Chromium Study Prompts Management Review of Scientific Findings

• CHROMIUM FAR DEADLIER THAN EARLIER ASSESSMENTS INDICATE – Scores of Capped New Jersey Contaminated Sites Will Have to Be Re-Evaluated

• TEFLON COATS PUBLIC AGENCY ENVIRONMENTAL SCIENCE – Jackson Sought to Have DEP Study Pulled from Publication

• CHROMIUM POSES HIGHER LUNG CANCER RISK IN NEW JERSEY CITIES – State Ignored Staff Warnings of Continued Exposure Even in “Remediated” Sites

• NEW JERSEY FACING CHROMIUM EMERGENCY – 1 IN 10 CANCER RISKS – State Scientist Reveals DEP Cover-Up; Demand for Federal Intervention

• High Chromium Danger Known by New Jersey Leaders Since 2007- Lisa Jackson and DEP Brass Decided to Proceed As If New Data Did Not Exist

In fact, the Christie DEP ignored the recommendations of DEP scientists to adopt a stringent standard back in 2010.

The Drinking Water Quality Institute’s meeting minutes for September 10, 2010:

3. Subcommittee Summaries—Subcommittee Chairpersons Health Effects—L. McGeorge: She noted first that the Subcommittee had adjusted its workplan, delaying action on radium and tertiary butyl alcohol to the first quarter of 2011; they would consider adding nitrates to their workload at a future meeting. Second, after A. Stern’s presentation at the previous Health Effects Subcommittee (HE) meeting on the slope factor developed by the NJDEP Chromium Workgroup for oral exposure to hexavalent chromium, the HE had accepted this slope factor as the basis for a Health-based MCL recommendation for hexavalent chromium at its September meeting. L. McGeorge distributed copies of a memorandum to the Testing and Treatment Subcommittees, recommending a health-based maximum contaminant level (HBMCL) of 0.07 μg/L for hexavalent chromium based on this slope factor.

Since then, this recommendation has been memory holed. See:

• The Chromium Pipe Treatment

The most recent chromium scandal is now playing out as a result of a national Report by the Environmental Working Group (EWG).

Based on EPA data, EWG that found that over 200 million Americans are exposed to unsafe levels of the carcinogen in drinking water, see the Newsweek story:

• CHROMIUM-6 FOUND AT ELEVATED LEVELS IN WATER OF 200 MILLION AMERICANS

“Bill Wolfe, with Public Employees for Environmental Responsibility, a group that protects government whistleblowers, says the EPA is “absolutely not” doing its job to protect the public from chromium, and that it’s a case that “illustrates undue influence—agency capture—by major corporate polluters.”

The EWG national Report prominently featured New Jersey, and in doing so exposed gross negligence by the Christie DEP.

The Christie DEP ignored DEP’s own scientists’ recommendations to set a chromium drinking water standard of 0.07 parts per billion, recommendations issued way back in September 2010.

 The California standard exposes this scandalous DEP record.

Who will tell the people?

Are there any real environmental reporters still on the beat in NJ?

EPA Touts New Community Air Toxics Monitoring Program In Buffalo NY

Community activists have long demanded better air pollution monitoring in their neighborhoods, particularly in environmental justice communities where homes and schools are located very close to massive toxic polluters.

I have written numerous times to criticize DEP’s hazardous air pollution control program for failures to adequately monitor and regulate major toxic air pollution risks and impacts on nearby communities and hold polluters accountable.

So today, I was surprised to read a Biden EPA press release that basically admitted that EPA air pollution monitoring is not adequate.

But EPA seems completely out of touch with the fact that these flaws are national in scope and systemic in the EPA air pollution permitting program and can not be remedied by a one shot EPA local grant.

And EPA is clueless to the fact that the community air monitoring should be paid for by the polluters, not by taxpayers via EPA grants: (EPA press release)

EPA Highlights Air Pollution Monitoring Project in Buffalo, New York

NEW YORK (April 16, 2024) – Today, U.S. Environmental Protection Agency (EPA) Regional Administrator Lisa F. Garcia and Dr. Eun-Hye Enki Yoo, Associate Professor, University at Buffalo and Senior Pastor George F. Nicholas, Lincoln Memorial United Methodist Church as well as other dignitaries gathered in Buffalo, NY to highlight a new collaborative project led by the University at Buffalo, SUNY. The university received almost $500,000 to deploy low-cost air pollution sensors at sampling sites in the residences of the underserved African American community in Buffalo. They will use this data to develop a community-specific air quality prediction model by integrating the new measurements with existing data. EPA specifically awarded funding, partly under Inflation Reduction Act, to increase monitoring in areas that are underserved to help them better understand what they are exposed to and to help them work with local and other officials to help address the sources of pollution.

“Knowledge is power and when people know more about what they are breathing, they can better participate in decisions that can address that pollution. This investment will provide the people of Buffalo with access to local air monitoring networks, which will raise community knowledge of air quality,” said Regional Administrator Lisa F. Garcia. “The Biden-Harris Administration has prioritized direct community participation in information gathering to help reduce harmful air pollution.”

Yes, knowledge is power – but why isn’t EPA mandating this kind of monitoring in air pollution permits issued to major polluters and making them pay for it?

A Phone Call From The Front Office Overrides Science

I just came across my 2008 testimony to the NJ Senate Environment Committee in opposition to the proposed privatization of NJ’s toxic site cleanup program and the creation of a privatized Licensed Site Remediation Professional (LSRP) program (read the transcript).

I just loved this quote – which was based on 14 years of DEP experience at the highest policymaking levels and close coordination with the Governor’s Office and legislative leadership- that speaks volumes:

Again, the term priority economic development is used in that section. I don’t know what that means. That, to me, means a phone call to the Governor’s Office and over to the Commissioner’s office. That’s what a priority economic activity is to me.

That’s how the game is played, and it’s only gotten worse over the last 16 years.

Word.

I explained the implications of this in a 2019 post:

First, DEP has no credible scientific basis to make any statement about the performance of the cleanup program because DEP has failed to implement or release to the public the “Remedial Priority System” (RPS) mandated by the Legislature over a decade ago. Without the RPS, DEP is literally flying blind and making shit up.

The legislature mandated that DEP adopt and implement the “Remedial Priority System” (RPS), which not only provides a valid, structured, risk based scientific basis for classifying and managing toxic sites, it also includes triggers for direct DEP oversight of high risk sites.

The Legislature also mandated that DEP publicly disclose a list of risk based sites in NJ.

The RPS originally was required by provisions of the Spill Act enacted over 30 years ago.More recently, the RPS agains was mandated by the 2009 Site Remediation Reform Act (“SRRA”, phonetically as in SURRENDER).

The legislature mandated that the RPS be adopted and implemented in DEP’s cleanup program by May, 7, 2010 (one year after enactment). DEP has flouted that legislative mandate for over 9 years.

Without a RPS, DEP is flying blind and has no scientific or factual basis to make any credible public statement.

The DEP’s priorities are set by other means.

The End (Free Assange!) Does Not Justify The Means

Opportunistically Making Right Wing Legal Arguments And Suppressing Critics

Last night, I read an article about the Assange extradition case in the UK at Consortium News, an outfit I strongly support, see:

• US Issues Assurances on Assange

I was shocked to read that Assange’s legal advocates were arguing that he did not have Constitutional Rights in the US, most critically, the protection of the First Amendment and that Consortium News was reporting this as a fact:

In  USAID v. Alliance for Open Society, the U.S. Supreme Court ruled in 2020 that non-U.S. citizens outside the U.S. don’t possess constitutional rights. Both former C.I.A. Director Mike Pompeo and Gordon Kromberg, Assange’s U.S. prosecutor, have said Assange does not have First Amendment protection.

Because of the separation of powers in the United States, the executive branch’s Justice Department can’t guarantee to the British courts what the U.S. judicial branch decides about the rights of a non-U.S. citizen in court, said Marjorie Cohn, law professor and former president of the National Lawyers’ Guild.

“Let’s assume that … the Biden administration, does give assurances that he would be able to raise the First Amendment and that the [High] Court found that those were significant assurances,” Cohn told Consortium News‘ webcast CN Live! last month.

So I submitted a reader comment to clarify this issue by writing that the Constitution and Bill of Rights apply to all “persons”, not just US citizens and to distinguish the case cited (i.e.USAID/Open Society) as mistakenly applied and not applicable to the Assange case, which involves a criminal prosecution in US courts on US soil involving 1st Amendment rights of a publisher and individual.

Shortly thereafter, I got a highly unusual email from Consortium News editor and reporter on this story Joe Lauria, I man I have high regard for and never interacted with before.

Challenging my comment, Joe wrote:

You write: There are plenty of cases that found that the Bill of Rights applies to all “persons”, not just US Citizens

Can you please provide several examples of these cases?

I replied, taking exception to Joe’s challenge of a reader comment and demand for case law support:

Joe – first of all, I note that you have not posted my comment.

Second, it has LONG been the legal and political position of the ACLU and NLG that the bill of rights and the constitution applies to “people” (not just US citizens).

This is obviously the progressive position to advocate. Despite the fact that it may be more advantageous to deny this legal and political position in the Assange case as a rationale to get the charges dismissed, the larger impact is to undermine a long held and important legal position. This is hypocrisy I must call out.

We are not talking about military tribunals and the Yoo memo.

I am not a lawyer, but a quick Google suggests several cases:

Plyler V. Doe (1982)

https://www.oyez.org/cases/1981/80-1538

“Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, 345 U. S. 206, 345 U. S. 212 (1953); Wong Wing v. United States, 163 U. S. 228, 163 U. S. 238 (1896); Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Mathews v. Diaz, 426 U. S. 67,426 U. S. 77 (1976). [Footnote 9]

Here is a law review article: (Georgetown law)

• Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens?

“the [Supreme] Court has insisted for more than a century that foreign nationals living among us are “persons” within the meaning of the Constitution, and are protected by those rights that the Constitution does not expressly reserve to citizens. Because the Constitution expressly limits to citizens only the rights to vote and to run for federal elective office, equality between non-nationals and citizens would appear to be the constitutional rule.”

https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1302&context=facpub

I could do real research on this if I had to – but I really would rather not.

The point is, in the ambiguity, the principled posture we should be taking is that all persons have US Constitutional rights – especially criminal defendants and First amendment rights –  despite the fact that this may undermine the narrative or legal tactics on Assange.

Wolfe

Joe fired back, digging his hole even deeper, by making another absurd distinction. Joe wrote:

First of all, we have not published your comment because we need you to back up what you claim. You have provided just one example, and it is not applicable. “The [Supreme] Court has insisted for more than a century that foreign nationals living among us are ‘persons’ within the meaning of the Constitution,”  it says.

Assange is not living “among us.” He has been abroad the entire time and the Supreme Court case being cited deals with foreign nationals living abroad.

We are not an advocacy site but a news organization. Marjorie Cohn is a lawyer and she knows what she is talking about.

First of all, Joe is  confusing Marjorie Cohn’s valid point about separation of powers with the US Constitution and Supreme Court’s doctrine on how the Constitution applies to foreign nationals!

Second, he is flat out wrong, because Assange will be tried in the US in US courts! He will not be on foreign soil.

Third, he provided a false justification for not publishing my comment. Virtually no reader comments at Consortium News are required to provide factual support of their comments, never mind multiple case law support. That’s just a lie. Go and read the comments! Some are insane!

And Joe responded further with flat out lies, claiming that all comments on Consortium News articles are required to be supported by facts. Joe wrote:

You are wrong. We always require backing up with facts, that’s why we don’t publish a lot of comments.  Secondly you are wrong because the case you cited refers to non US citizens living inside the US when the Assange case is about someone outside the US.

The Assange supporters are off the rails on the First Amendment issue.

They are taking a diametrically opposite view of the US Constitution than the ACLU and National Lawyers Guild have advocated for decades!

And Joe Lauria is suppressing dissent.

Both the ACLU and National lawyers Guild have long argued that the Constitution and the Bill of Rights apply to all “persons” not just US citizens. Now, because it helps their legal case in UK extradition, they are claiming that he does not have those rights. Why would a left – progressive legal advocate (ACLU, NLG) argue that foreign nationals do NOT have Constitutional rights while being prosecuted in US Courts on US soil? Even the New York Times’ lawyers support that view.

The law is clear – Assange has free speech and due process rights here in the US.

Skeptics don’t need to take my word for it – read this law review article: (Georgetown Law Review)

Are Foreign Nationals Entitled to the Same Constitutional Rights

As Citizens?

https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1302&context=facpub

The end (free Assange) does not justify the means!!!

[End Notes:

1. In case it’s not clear, I am stating that the Constitution applies to the crimes alleged, as well as to the judicial process, ie. that Assange can seek dismissal based on claims that his actions were 1st amendment protected.

2. Here is the superseding Indictment of Assange – almost everything he is accused of is the function of a reporter and/or a publisher:

https://www.justice.gov/opa/pr/wikileaks-founder-charged-superseding-indictment

3. Even The NY Times’ lawyers wrote that, so it is shocking that Assange’s defenders have not and instead made the opposite point. Read the NY Times editorial:

• Julian Assange’s Indictment Aims at the Heart of the First Amendment

4. For those who suspect I’m some right wing troll, see this post from 2011:

• Free Bradley Manning

[Update: 4/19/24 – I am getting strong pushback on this – so here is my reply to the Assange supporters I am criticizing:

You miss my point. Of course, I oppose extradition and am completely aware of the murderous persecution intentions of US DoJ (driven by CIA).

Strategically, my point is that the extradition arguments and activism should not undermine First Amendment activism. Instead of saying Assange does NOT have 1stA rights, activist should HIGHLIGHT the violation of 1st Amendment that the indictment represents. This could maximize pressure on Biden, who is politically vulnerable right now.

Legally, the Assange legal team, (if extradited) would file a motion to dismiss, based on violation of the 1st A. This is legally solid and could provide political cover for Biden to defy the CIA and rescind the indictment, or file a brief with the court in agreement with Assange and let the Judge dismiss.

This is not only the best political strategy, it may be the only legal strategy available, as it’s obvious that the deal is in. More delay just means Assange dies in Belmarsh. Fight Biden on this now, when he is desperate politically. Even The NY Times would back that fight.

The repression happening at Columbia University right now is the Berkeley Free Speech moment. The tide is turning in our favor. Timing is right for massive street heat.