DEP Science Board Agenda Reveals a Formula for Gridlock and Rollback

Today’s Atlantic City Press story on DEP’s controversial new Science Advisory Board (SAB) reminds me that I promised to write about the 17 issues assigned to the SAB by DEP Commissioner Martin (see: DEP Science Behind Closed Doors: Secret Meeting Starts New DEP Science Advisory Board Off on the Wrong Foot

According to former DEP Commissioner Mauriello’s Administrative Order that established the SAB, the Board can only work on issues assigned to it by the DEP Commissioner. The SAB may only communicate with the Commissioner via DEP’s Office of Science.

DEP maintains complete control over the issues agenda and communications as means of reducing political intervention and glaring conflicts of interests resulting from the fact that regulated private industries and consultants with DEP regulated clients are members of the SAB.

Complete DEP control was required and designed to avoid attempts by private interests to bring issues before the SAB in order to advance a private agenda (by way of obvious example, Dupont’s representative on the SAB may not ask the SAB to review the science supporting DEP’s risk assessment of PFOA).

Furthermore, the SAB is limited to consideration of “specific science and technical issues” and is strictly prohibited from deliberating on “policy or regulatory matters” (see paragraph #4).

The need for “specific issues” to be identified and the bright line prohibition on the SAB considering policy or regulation are vital, becaue the exclusive role of DEP scientists is to establish the basis for DEP regulatory standards and policies. That role is an essential government function, and can not be privatized or outsourced to the SAB.

It is equally obvious that industry and their consultants put economic interests above science and seek to reduce costs associated with complying with DEP standards, while development interests seek to escape DEP environmental constraints.

However, despite restictions in Mauriello’s Order, there remains a serious potential for exactly this kind of abuse of privatizing and politicizing the science.

This potential for abuse is particularly troubling in light of deep cutbacks in DEP scientific staff, the recent fragmentation of DEP’s Office of Science by Commissioner Martin’s Reorganization, and a multi-year trend of reduction in resources allocated toDEP science.

Abuses can result by stealthing policy and regulatory debates into the SAB process under the guise of the “scientific” issue charge to the SAB.

Accordingly, a detailed review of the 17 “issues” assigned to the SAB – in light of the scientific underpinning of current policy and regulatory controversies – is warranted.

Based on our review, we conclude that there has been this kind of abuse.

The issues assigned to the SAB are extremely broadly written, have litttle scientific focus or precision, and allow the SAB to intervene in current policy and regulatory controversies, despite the strict prohibition. This issue set and how it was crafted exposes the real SAB agenda and role, which is twofold:

• to manufacture undertainty in order to derail, delay, and/or weaken the ability of DEP to move forward with necessary new standards; and
• to generate industry science in order to attack, weaken, or rollback existing DEP regulatory standards or policies.

My sources tell me that Martin spoke very briefly to the SAB, left shortly thereafter, and did not remain for their deliberations. While it was reported by the media that the full SAB would meet again in October, due to lack of any public notice or open meeting requirements, we are unable to verify whether another private meeting occured and if so what was discussed. We have been told that currently, the 5 Standing Committees are now deliberating privately, frequently by telephone conference call. This is all happening in the absence of any transparency or public accountability guidelines, policies, and procedures.

So here we go. Here is the list of 17 issues assigned to the SAB  by Commissioner Martin on September 9.

Each issue (in box quote below) is preceded by our views about whether it is crafted narrowly and precisely to avoid abuse and meet the standards of Mauriello’s Administrative Order. Links are provided to documents that illustrate thse isues, so please hit the links.

Next we will briefly discuss how it is related to current policy and regulatory disputes to illustrate whether the issue is really a stealth atempt to end run the prohibition and intervene in policy and regulatory matters.

1. Nutrient pollution – Both EPA and DEP have been working on this issue for years.  Nutrient standards and controls are a significant policy and regulatory matter, on both a statewide basis and in the Barnegat Bay, where DEP has failed to move forward. Why would the SAB, with no nutrient water quality experts improve on those efforts? The SAB process become an excuse to delay action: “they’re working on it – the science is not ready for regulation”.

Site-specific factors may mitigate or exacerbate biological responses to excessive nutrients. What are the best state-of-the-art approaches for technically sound and implementable nutrient thresholds/criteria in fresh and coastal waters?

2.  Site remediation – Toxic site groundwater cleanup is a highly controversial policy and regulatory matter given NJ’s extensive contamination, significant health risks, and high costs of cleanup. Last year, DEP abandoned proposed regulations that would have mandated “impact to groundwater standards“. This proposal was strongly opposed by industry and would directly impact compliance obligations of Dupont, a SAB member.  Similarly, the LSP privatized program is strongly opposed by environmentalists.

Conduct a peer review of the Site-Specific Impact to Ground Water Soil Remediation Standards (IGWSRS) Framework: Does the framework and associated assumptions and methodology reflect accurate and comprehensive information to guide the Licensed Site Remediation Professional (LSRP) in the evaluation of potential impacts associated with the impact to ground water pathway?

3. Emerging and unregulated chemicals – Health impacts of and controls on currently unregulated chemical contaminants is a high profile policy and regulatory controversy.

What are the contaminants of emerging concern (in surface water, ground water, air, biota, soil, wastewater & sediment), and what technical (e.g., monitoring, research) steps should DEP take to understand and manage them?

4. Cumulative impact risk –Cumulative risks is a longstanding hot environmental justice and land use and water resource policy and regulatory issue.

Review the scientific basis of DEP’s cumulative risk model and provide technical recommendations to improve the model.

5. Ecological standards – Ecological impact methods, wildlife criteria, and mitigation requirements are hot regulatory and policy issues.

Ecological Mitigation Criteria – examine and develop acceptable mitigation to offset impacts to natural resources including ecological function and Threatened & Endangered species. (Develop uniform environmental goal for protection of critical wildlife habitat and T&E species.)

6. Statistical monitoring design – The cost minimization objective could not be more clear on this one – what do costs have to do with science and the accuracy and precision of statistics?

Should the DEP research and test new statistical analysis methods with the potential to substantially decrease monitoring costs in the near future?

7.  “Acute health impact” cleanup standards – Former Commisioner Lisa Jackson promised to adopt “hot spot” toxic site soil excavation, pollutant source removal, and permanent cleanup requirements. This all was strongly opposed by industry. The vapor intrusion exposure pathway remains controversial.

Development of Health-Based Acute Criteria: Can a framework be developed to establish health-based acute criteria that address appropriate acute toxic endpoints, exposure durations and pathways, and a hierarchy of potential data sources?

8. Monitoring toxic emissions –  Air toxics and perimeter monitoring is a statewide issue of concern and is strongly opposed by the chemical industry:

Assessment of the Perimeter Air Monitoring Framework for use during hazardous waste site remediation: What is the best approach to establish values to protect off-site receptors that are exposed to volatile and semi-volatile emissions from remedial activities?

9.  Biomonitoring – Human biomonitoring! Kiddie Kollege? Hoboken Mercury? Jersey City and Garfield chromium? Pompton Lakes vapor intrusion? Dupont gets a shot at that? Yikes!

What are the needs and scope of a NJ-specific human biomonitoring program? What are the appropriate structures and mechanisms for collecting and interpreting representative biomonitoring data?

10. Nitrate Dilution Model -This is a transparent attack on the Highlands septic density standard, based on the legislaitive “deep aquifer recharge” standard .

Verify nitrate dilution models. What level of nitrates is acceptable in groundwater in order to protect stream water quality and ecological values? Because septic density is based on zoning while the nitrate standard is based on a watershed, can those standards be effectively implemented? Does proximity to a receptor matter? Does it matter from a development standpoint if the land being developed is currently used as agricultural or forested lands?

11. Water supply constraints – This is a transparent attack on the Highlands water availability methodology and hydrological constraints on development, along with a walk away from DEP “Eco-Flow Goals“.

Review of hydroecological Integrity Assessment Process & Review of the Stream Low Flow Margin Method

12. Don’t know – The disinfectant and solids seem like bones to water purveyors and the sewage treatment plant operators, but I have no idea what the alternative energy stuff has to do with the first part. Essentially unintelligible!

Demonstration of the efficacy of alternative disinfectants, alone and in concert with innovative high rate solids separating technologies, and alternative energy generation and storage technologies

13.  Water Quality – Sounds like an excuse to stall implementation and weaken TMDL, undermine more stringent NJPDES WQBELs and upgrading treatment technologies, and block water quality standards enforcement.

How should water quality continuous monitoring or modeling results be used to interpret compliance with water quality standards for a particular waterbody? How can continuous monitoring data be effectively evaluated and integrated with legacy data?

14. Diesel pollution – I am not that familiar with these aspects of the air program and concerned that a focus on mobile diesel diverts from stationary industrial source pollution, but it clearly this lacks precision and involves policy and regulation.

What is the most effective way to determine the improvement in ambient air quality from requiring non-road diesel construction equipment to install retrofit technology and how do we quantify the health benefit to the worker and surrounding population (community) from requiring said retrofits?

15. Hazardous Air Pollutants – The answer to this question is already “no” and DEP scientists have made reform recommendations in a recent DEP Paterson air toxics study

Is the background data and information assembled by the Air Quality Permitting Program sufficient to support regulating additional air toxic compounds as hazardous air pollutants?

16.  Climate Change – “Inevitability” sounds like an excuse to do nothing to control emissions. Why is by far the most important issue buried at #16 on the list?

Which aspects of climate change should be considered at this point to be inevitable, and how should NJ best adapt to these? What additional studies are indicated to assess statewide vulnerabilities to global warming and sea level rise, and how can these studies be linked to adaptive land use management practices, open space protection, and resource utilization?

17. “Green Energy” – I haven’t seen this potocol, but note that it involves “promotion of economic development“ so am extremely skeptical.

Review the draft protocol for “Evaluating Green Energy Engineering Systems that Use Alternative Fuels to Reduce Environmental Pollutants and Promote Economic Growth“.

Congrats on getting this far! Your thoughts and comments are encouraged!