I got a tip and was able to catch lobbyists for the chemical industry in the act. They met privately today with DEP Commissioner Mark Mauriello. The meeting was to discuss, among other things, appointments to a controversial new DEP Science Advisory Board (SAB).
It is precisely these kind of off the record private lobbying meetings between DEP and regulated industry and developers that illustrate the need for more transparency at DEP. We recently petitioned DEP to force public disclosure of these kinds of private meetings. That petition is currently before Commissioner Mauriello, who must make a decision shortly.
At the federal level, the Obama administration has emphasized greater transparency in government. In response, EPA Administrator Lisa Jackson posts daily schedules of EPA managers on the EPA website, something Jackson explicitly rejected while NJ DEP Commissioner.
Yesterday, we filed a lawsuit seeking access to exactly these kinds of records that show chemical industry political intervention at DEP.
The chemical industry is pressuring Mauriello to appoint the following industry scientists to the SAB:
Anne Masse - employed by Dupont
John Gannon - also w/Dupont at Wilmington, De. plant
Joseph West - Merck Research Laboratories, Rahway NJ
Daniel Caldwell - Stout and Caldwell Engineers and South Jersey Development Council
DEP is an administrative agency that is required by law to make open and transparent decisions based on law, science, and the public interest, not politics in back room deals with lobbyists for special interests.
Chemical industry political lobbying has no place in the DEP decision-making process, and must be restricted. Current Election Law Enforcement Commission (ELEC) laws already mandate reporting of these kind of lobbying attempts "to influence government processes". But far stronger restrictions are required. Forcing public disclosure is a good first step in that process of minimizing the corrosive effects of special interests on DEP.
We recently warned of a Hostile Takeover of DEP Science - Industry Seeks to Stack Board with Cronies, the latest in an orchestrated War on Science by politically powerful polluters and developers in NJ. The Star Ledger reported on that in a September 20, 2009 story, "Scientists line up to join DEP's controversial new advisory panel".
Since then, we received additional leaked DEP documents and emails which show that the NJ Chemistry Council (the trade group and lobbyist for NJ's chemical industries) is seeking to have Dupont and Merck scientists appointed members of a controversial new DEP Science Advisory Board. Similar industry efforts to stack federal Science Advisory Boards during the Bush administration were repudiated by scientists. A Science magazine editorial "Advice without Dissent" hit the nail on the head:
The Bush administration has made some unwise recent moves that undermine the process by which scientists provide advice to the U.S. government. The applicable current law (the Federal Advisory Committee Act), which requires these advisory bodies to ". . . be fairly balanced in terms of the points of view represented and . . . not be inappropriately influenced by the appointing authority or by any special interest," is more than empty boilerplate....
Instead of grappling with scientific ambiguity and shaping public policy using the best available evidence (the fundamental principle underlying public health and environmental regulation), we can now expect these committees to emphasize the uncertainties of health and environmental risks, supporting the administration's antiregulatory views. And in those areas where there are deeply held conflicts in values, we can expect only silence. Regulatory paralysis appears to be the goal here, rather than the application of honest balanced science.
In fact, DEP Commissioner Mark Mauriello is meeting with the Chemistry Council this Thursday to discus SAB appointments. Commissioner Mauriello, in contrast to federal law that mandates balance and prohibits inappropriate influence by special interests, has virtually unbounded discretion to appoint SAB members.
So, with some of the documents already in hand, I filed an OPRA request to obtain all of them. But in an attempt to keep this chemical industry campaign a covert war, DEP denied the OPRA request.
In response, today, PEER filed a lawsuit against DEP seeking all the documents. We are confident that we will prevail in this lawsuit and that the documents will disclose industry pressure to politicize science at DEP and protect polluters from DEP regulations.
This industry effort must be derailed. Formal industry control over DEP science would have profoundly detrimental impacts on the health of residents and the natural environment.
See below press release for details.
For Immediate Release: Monday, September 28, 2009
Contact: Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337
Industry Moves to Take Over Jersey Eco-Science Board
DEP Sued to Force Release of Lobbying Messages for Industry-Backed Scientists
Trenton - Industry wants to pack a new state environmental Science Advisory Board with its own scientists, according to Public Employees for Environmental Responsibility (PEER) which today filed a lawsuit to obtain public records regarding the industry lobbing effort. Department of Environmental Protection (DEP) Commissioner Mark Mauriello is reportedly making final picks for the 12-member board this week after meeting with the Chemistry Industry Council this Thursday.
The suit challenges the denial by DEP of an Open Public Records Act (OPRA) request filed by PEER seeking public records related to industry nominees and political lobbying for the Science Advisory Board (SAB) appointments. The DEP broadly claimed that practically all the requested documents are exempt from OPRA on the grounds that the pending appointments will be treated like candidates for employment, and thus confidential. Board members, however, are not DEP employees, nor would they be paid.
"DEP cannot make public records secret on the basis of an analogy," stated New Jersey PEER Director Bill Wolfe who filed the document request. "Industry has a huge stake in getting friendly scientists on the board that will make the final recommendation on public health regulation."
In late 2008, former DEP Commissioner Lisa Jackson abolished the Division of Science and Research, based in part on a recommendation of her Permit Efficiency Task Force, chaired by Chris Daggett, now an independent candidate for Governor. The Science Advisory Board is supposed to substitute for the work formerly done by DEP scientists.
Thus far, more than 100 nominations have been submitted. Industry associations have put forward scientists from major manufacturers such as DuPont and Merck as well as from engineers and technical specialists from industry-oriented consultant firms. This Thursday, October 1st, Commissioner Mauriello, who chooses the board members, will meet behind closed doors with the Chemistry Industry Council of New Jersey, the primary lobby group representing state-based manufacturers.
In recent months, DEP scientific studies have been the subject of intense industry lobbying pressure to amend or suppress, on public health topics ranging from the effects of chemicals, such as PFOAs made by DuPont, to cement dust blowing through Camden neighborhoods. The Administrative Order creating the SAB specifies a conflict of interest review of board nominees but it is not clear what specific rules will be applied, except that members are not supposed to act on matters in which they have a "financial or personal interest" - terms left undefined.
"It appears that industry will soon be providing the final edits on all scientific work done at DEP," added Wolfe. "Without transparency in the selection process, there will always be the doubt that this board will more concerned with political science than environmental science."
The OPRA lawsuit was filed today on behalf of PEER by Michael Pisauro of the Princeton-based firm of Frascella & Pisauro, LLC.
In New Jersey, the chemical industry (not government) makes life and death decisions - based on how much it would cost - on whether and how to protect nearby communities from accidental release of toxic chemicals. Talk about "Death Panels"! Consider the "Fatal Fifteen" - There are 15 New Jersey chemical plants where each plant poses a threat to 100,000 people or more. (see Report/list of facilities here)
Why is the chemical industry allowed to essentially regulate itself on such a critical public safety issue? Why are risks from deadly accidental chemical releases to communities kept secret?
Because Jon Corzine, acting as Governor, reversed the strong position he took as US Senator and never delivered on the promises made during his 2005 campaign with respect to mandatory chemical plant safety and open public environmental (EPA) regulatory oversight of the program. That fact was conceded by Corzine's own head of Homeland Security in this revealing NY Times quote:
Richard Cañas, director of the New Jersey Office of Homeland Security and Preparedness, said the Corzine administration has had difficulty convincing businesses that switching to safer technology is worth the price, which can run into tens of millions of dollars at a single plant. "To the extent that replacing technology is going to break the bank, they're not willing to go that far," Mr. Cañas said. "It's always money that impedes what you'd like to do."
The core elements of Corzine's state level chemical plant safety program regulations, e.g. whether a chemical plant must upgrade technology or change operations to reduce risks - are VOLUNTARY and decided by industry, not MANDATORY and selected by government (see: Toxic Catastrophe Prevention, inherently safer technology, Security at chemical and petroleum facilities, et al)
Critical aspects of the chemical plant safety program, particularly with respect to public disclosure of health and safety risks posed by chemical plants on nearby communities - such as "off site consequence analyses" that provide maps of the zone where all exposed individuals would die - are kept secret and under control of the Homeland Security regime, not DEP regulators. Homeland Security type restrictions mean that this critical information is kept secret, and exempt from public right to know (RTK) and public records laws (OPRA).
The NY Times was the only press outlet to call Corzine out on that here:
Corzine's Chemical Security Stance Draws Scrutiny a Year Into His New Job
By DAVID KOCIENIEWSKI
Published: December 28, 2006
As a United States senator, Jon S. Corzine was relentless in warning that the nation's chemical plants, and the railways that carry their potentially dangerous cargo, are vulnerable to a devastating terror attack.
He traveled the country promoting legislation to force many manufacturers to use fewer toxic chemicals. In 2004, he even stood outside a chlorine plant in northern New Jersey, pointing out its flimsy security to a camera crew from "60 Minutes."
But in the 11 months since he was sworn in as New Jersey's governor, Mr. Corzine has taken a far more measured approach to the issue, disappointing some of the chemical security experts who helped him form his proposals in the Senate. These advocates say that the Corzine administration has made little tangible progress on increasing security at the 15 New Jersey chemical plants, and that each plant poses a threat to 100,000 people or more. They accuse the governor of being too intent on appeasing the chemical industry, which provides more than 80,000 jobs in the state....
Mr. Corzine's approach to domestic security illustrates a basic reality of government: sweeping changes are sometimes easier to propose as a legislator in the minority party than to carry out as an executive in power. ...
But those rules do not require the companies to adopt the safer processes if they deem them too expensive. And chemical safety advocates, like Rick Engler of the Work Environment Council, say it is often hard to know how much progress has been made because the state has been unwilling to release much information....
State environmental officials have acknowledged that many of the state's most dangerous plants continue to use and store stockpiles of toxic chemicals near major population centers. That would include the chlorine plant in Kearny, in Hudson County, only about 10 miles from Midtown Manhattan, which Mr. Corzine toured with the "60 Minutes" crew.
That story never got out in the NJ press corps, who seemed unwilling or incapable to challenge the spin of Corzine press releases, like this:
But the Governor himself admitted he reversed course in response to pushback by the chemical industry - even more troubling, this is the first time I've ever heard traditional regulatory requirements referred to as a "super hammer":
"I think people in the industry are worried that if we don't get results we may use the super hammer," he said, referring to such a mandate. "So we've gotten much better response because we've done this in a sensible, realistic manner."
I guess Corzine sure is no carpenter, because he's kept that "super hammer" well sheathed.
For additional information and links to the press clips and pertinent regulatory documents, see:
Chemical plant risk decisions privatized in NJ
New Chemical Plant Rules Rely on Voluntary Measures
Still At Risk: Protecting NJ's Jobs, Families and Hometowns from Toxic Disasters
ps - to understand what's really going on, forget the press releases - you gotta read the fine print of the regulations, like this (see boldface) - this pretty obviously says that the key protective decisions are up to the industry not DEP regulators, and that plant economics can be considered (economics means profits). So the chemical industry itself decides what risks (of death) are feasible and worth reducing: profits before people is policy.
Proposed new N.J.A.C. 7:31-3.6(e) requires the owner or operator to determine whether the [inherently safer technology] IST alternatives are feasible, which means capable of being accomplished in a successful manner, taking into account environmental, public health and safety, legal, technological, and economic factors. (link here)
A huge shot was fired today in what has been a dirty and expanding covert war on science at DEP - today's Star Ledger reports:
Scientists line up to join DEP's controversial new advisory panel
Sunday, September 20, 2009
More than 100 scientists have applied to join the Science Advisory Board, a panel being created by the state Department of Environmental Protection to provide expert opinions on several environmental questions. ....
Faced with ongoing budget cuts and staff reductions, [DEP Commissioner] Mauriello contends the advisory board is a natural fit for lean times. ...But critics claim the board will be a tool for pro-development and industry forces that want to roll back tough pollution standards and circumvent the DEP's own scientific staff....
"This thing was created because the science and research people inside the DEP are perceived at top levels as out of control because they did not let politics and the wishes of the administration get in their way of recommending such things as a tougher chromium clean-up standard in Jersey City," said Bill Wolfe of Public Employees for Environmental Responsibility, or PEER....
"For 20 years this has been the goal of business and industry: to dismantle the DEP's Division of Science and the extensive research they have done to protect the public health and environment from developers and polluters," said Jeff Tittel of the Sierra Club.
Behind the scenes, powerful chemical and pharmaceutical lobbyists are aggressively pushing for their own industry scientists to take over control of environmental and public health science at DEP. This move mirrors a discredited tactic of the Bush Administration, to stack EPA and FDA Science Advisory Boards with industry flacks to promote industry's economic interest over the best science and public health protection.
There are direct consequences to protections we now enjoy, because independent science is required to establish those protections and to monitor and enforce them. Questions of science and regulatory policy are inextricably linked. Every day, DEP makes decisions based on scientific standards and protocols, from managing fish and wildlife, wetlands and endangered species protections, enforcing air and water pollution permits, to warning residents about contaminated unsafe drinking water. Science and technical issues can not be isolated from policy and implementation of programs legally put in place to protect the public and regulate harmful actions of industry. Yet, DEP Commissioner Maurielleo misleads the public by pretending that they are:
Mauriello said he tried to defuse such suspicions through the wording of the May directive he issued to create the board. The work of the panel, according to the directive, would be "limited to specific scientific and technical issues" that the commissioner pitches its way, "not policy or regulatory matters." Mauriello also said the board will report to the DEP's staff of scientists, who are helping to select its membership.
Mauriello's May 2009 Order is riddled with loopholes, but does mention the need to limit scientific bias, but falls far short of a absolute ban on conflicts of interest. This failure invites and opens the door to industry control.
To provide a sense of just how dirty the covert science war has become, consider the fact that the NJ Chemistry Council is pushing employees of Dupont and Merck pharmaceuticals, some of the largest toxic polluters in NJ. How convenient to have a Dupont employee in control of the scientific health risk assessment of PFOA, a toxic chemical that is manufactured by his employer, Dupont. Risk assessments form the basis of regulations. Control the science and you control the regulations. These industry scientists are NOT independent, they have scientific biases and economic conflicts of interest. They MUST be excluded. Yet again, DEP Commissioner Mauriello misleads the public by saying:
"I respect the fears of the environmentalists," Mauriello said. "But it can only be a good thing to have an independent group of scientists to look at what we do. The days of thinking we don't need outside assistance are over."
In order to reveal this covert war to the public, I filed an Open Public Records Act (OPRA) request . It was denied by DEP. DEP is protecting the chemical industry, NJ Builders Association and Business and Industry Association who are working behind the scenes. DEP is trying hard to keep the public from even knowing about this important debate. It is not just industry that won't release the names of individual scientists - DEP won't even reveal documents that show the existence behind the scenes industry lobbying! This DEP secrecy is especially troubling, because the industry's agenda is made clear:
Business and industry advocates have long wanted an advisory panel, although one with more official power to alter regulations. They have endorsed some candidates for the new board but have not released names.
"Too often the New Jersey Department of Environment Protection has set standards which have not been reflective of scientifically, peer-reviewed studies, said Hal Bozarth, executive director of the Chemistry Council of New Jersey. "This has led to the cost of compliance for New Jersey's manufacturers to become far higher than in other states, Likewise, remediation of sites is far more expensive and often more time-consuming than in other states, while providing little or no extra protection. Therefore, a scientific advisory board comprised of scientific experts will provide many benefits to New Jersey in how it deals with its environmental issues."
Former DEP Commissioner Lisa Jackson caved to political pressure and abolshed DEP's Division of Science and Research, and promoted a private Science Advisory Board.
So, I was pleased to read that the Star Ledger identified former DEP Commisioner Lisa Jackson as the person responsible for this sell out of scientific integrity to political pressure by powerful polluters:
Mauriello's directive came five months after the DEP reorganized its Division of Science, Research and Technology into an Office of Science under a director of policy and planning. That change was put in place by DEP commissioner Lisa Jackson before she left in November to head the federal Environmental Protection Agency.
David Brogan, NJBIA misleads the public about DEP science and regulatory practices.
But even though this story has been smoked out in the media, the industry hacks continue to lie. David Broagan of NJBIA KNOWS that DEP considers a broad array of scientific sources, not just DEP scientists, and that DEP routinely conducts external peer review of scientific research sponsored or conducted by DEP. Yet he lies nonetheless:
"David Brogan of the New Jersey Business and Industry Association said it is time the DEP heard from scientists outside a state laboratory. ...
But even in an advisory capacity, the new board will offer "cutting-edge" information that may otherwise not be available to the state or public, said Elizabeth George-Cheniara of the New Jersey Builders Association,
The only thing "cutting edge" these industry flacks will offer is the company line - which of course - "is not otherwise available to the public"!
For Immediate Release: Wednesday, September 16, 2009
Contact: Bill Wolfe (609)397-4861; Kirsten Stade (202) 265-7337
TOXIC NEW JERSEY ELEMENTARY SCHOOL FINALLY WINS RELIEF
Vapor Intrusion Controls May End Three-Year Ordeal at Atlantic Highlands
Trenton - The students, staff and parents of a New Jersey elementary school suffering from an underground plume of toxic chemicals finally may be getting some help, according to documents released today by Public Employees for Environmental Responsibility (PEER). A state-approved vapor intrusion plan will be in place next month at Atlantic Highlands Elementary School in Monmouth County on the northern New Jersey shore.
For more than three years, children and teachers have been exposed to unsafe indoor toxic air pollutants that exceed state vapor intrusion levels. In announcements this week, the New Jersey Department of Environmental Protection (DEP) says that it will oversee installation of a "sub-slab vapor mitigation system" to reduce chemical exposures within school facilities.
"While this is good news, it is long past due because the state DEP again has fallen down on the job," stated New Jersey PEER Director Bill Wolfe, a former DEP analyst, who had been prodding the state to address the long-standing problem. "Even this new remedial action is the result of a voluntary negotiated settlement and not a state enforcement action."
A plume had migrated under the school building from an abandoned industrial site across the street that is the suspected source of the problem. Groundwater and soil have become contaminated with the toxic chemicals Trichloroethylene (TCE) and Tetrachloroethylene (PCE). Despite indoor air readings far above safety levels, cumulative risks to children have not been quantified nor were protective measures taken.
For several months, an organized group of parents has worked quietly with the DEP case manager and local schools officials and was led to believe that a sub-slab depressurization system would be installed before the start of this school year. Under the arrangement just unveiled, portions of the school will have to be closed to install vapor controls.
"As recently as last week, DEP denied it even had jurisdiction. Only the threat of publicity sparked this action," Wolfe added. "The state needs clear rules so that this sort of buck-passing cannot recur."
PEER points to areas of ambiguity that the state has not clarified, including whether the "Kiddie Kollege" law (enacted after a mercury-laden day-care scandal) applies to existing schools whose land becomes contaminated or only to new schools located on land that is contaminated. In addition, to avoid delays and needless exposure of children, DEP should issue an enforcement Spill Act Directive to the Responsible Party with a compliance schedule and stipulated penalties in cases such as Atlantic Highlands.
"This case shows that all of the rhetoric about children being the top enforcement priority is just so much hot air," Wolfe concluded. "Health protections should have been put into play at the first sign of danger."
###
Read the DEP announcement about measures at Atlantic Heights Elementary
See the PEER letter to DEP
Trace the three-year history of the Atlantic Highlands struggle
Look at recent problems with toxic schools in New Jersey
Last week, we exposed and called on DEP Commissioner Mauriello to resolve a totally unacceptable situation in Atlantic Highlands. Children were being exposed to toxic chemical vapors seeping into their elementary school building, while the DEP failed to enforce the law and require the polluter to cleanup. (see:
http://wolfenotes.com/2009/09/...
Parents had organized and were working with local school officials, but the polluter was dragging his feet. DEP failed to back local efforts by enforcing State cleanup laws to hold the polluter accountable. As a result, more cleanup delays ensued as the polluter was allowed to flout cleanup requirements. Children were needlessly exposed to toxic chemicals.
We are pleased to note that the organizing and hard work of a committed group of parents paid off - DEP just announced a cleanup agreement. Congratulations to those parents and kudos as well to local school officials.
Three years after DEP first learned of the problems at the school, DEP Assistant Commissioner Irene Kropp finally announced the following:
The DEP case manager attended a meeting at 1:00 PM with the Atlantic Highlands School Superintendent, his attorney and his consultant along with the potentially responsible party (PRP), his attorney and his consultant. The case manager called just minutes ago to advise me of the following:
The outstanding issues between the parties have been resolved;
The Atlantic Highlands School Board will formally approve the installation of the DEP-approved sub-slab vapor mitigation system at tomorrow's Board meeting;
The PRP's consultant will begin installing the system on September 21, with an anticipated completion date of October 16;
The system will be installed on a room-by-room basis while school is in session, however, the rooms undergoing installation will be closed for the entire school day;
The cafeteria/kitchen installation will take place between October 9 through 12, while the school is scheduled to be closed;
In light of these developments, we will not be preparing a formal response to Mr. Wolfe's inquiry.
Please contact Assistant Director Ken Kloo, at 2-1251, if you have specific questions or need additional information.
Irene Kropp
Assistant Commissioner
Site Remediation Program
NJDEP
A federal audit of New Jersey's Department of Environmental Protection identified what it called "significant shortcomings" in how the DEP operates, especially in the division that handles contaminated site cleanups.
The DEP's site remediation program doesn't provide proper oversight of contaminated site cleanups because program officers don't follow up with field audits or internal assessments, according to the federal Environmental Protection Agency report, released Thursday.
The EPA faulted the DEP officials for failing to verify what the private contractors of polluters told them about site cleanups. The DEP officials even told the EPA during interviews that the contractors were "certified professionals and taken at their word," the report said.
In the report, the EPA also criticized the DEP because several programs, including site remediation and the wetlands program, operate outside the department's quality assurance system. The audit noted that many site remediation staff and managers didn't even know that the DEP has an Office of Quality Assurance.
While the report was critical of short comings, it wasn't all negative:
Some positive highlights were noted during EPA's closing meeting with Department's senior managers. Among the highlights were that the Office of Quality Assurance's Laboratory Certification Program has improved the frequency of laboratory audits since our last assessment of the program in 2005. Also, the Bureau of Surface Water Permitting, the Bureau of Technical Services, and the Bureau of Environmental Radiation were found to be in compliance with the NJDEP Quality Management Plan and have functioning quality systems.
A 2005 EPA audit identified many areas for DEP improvement, which the DEP responded to in 2006 with a list of corrective actions it would take. This new audit notes that "many of the corrective actions identified ... were never completed" by the DEP.
Those corrective actions had been outlined in a plan issued by then-DEP Commissioner Lisa Jackson, who took over the EPA earlier this year. The audit and its critique of DEP performance provide an awkward instance of the agency Jackson used to run coming under criticism by the agency she heads now.
News Releases
For Immediate Release: August 27, 2009
Contact: Bill Wolfe (609) 397-4861; Jeff Ruch (202) 265-7337
EPA AUDIT RIPS NEW JERSEY DEP PERFORMANCE - Corrective Actions Never Implemented for Toxic, Wetlands and Other Programs
Washington, DC - A new audit by the U.S. Environmental Protection Agency faults the quality and consistency of New Jersey programs for cleaning up toxic wastes, preserving wetlands and other key functions, according to Public Employees for Environmental Responsibility (PEER). Many of the defects were first identified in a 2006 audit but Lisa Jackson, then head of the New Jersey agency and now EPA Administrator, neglected to put in place most of the corrective steps she had pledged to implement.
The new EPA audit of "Quality System Assessment" reviews whether the New Jersey Department of Environmental Protection (DEP) can measure what it does, whether its data is reliable and how it tracks results over time. While EPA found that DEP had made some progress, the federal agency concluded that several major DEP components suffer from "significant shortcomings" and fail to meet minimal federal standards for management quality and performance. Among the findings are -
The state program for cleaning up toxic wastes operates on an honor system and does not check industry claims: "None of the Site Remediation Program's bureaus interviewed do any project assessment and/or process improvement beyond data validation, (i.e. no field audits, no split samples, no internal assessments, etc). The EPA assessment team was told that Responsible Party contractors and/or NJDEP contractors are 'certified professionals and taken at their word'";
The state wetland protection program lacks any quality assurances that its permit, land use and inventory of rare species habitat is accurate; and
Many of the steps that EPA identified in a previous audit to improve departmental performance, including data collection, tracking and training, were still absent three years later despite a Corrective Action Plan submitted in April 21, 2006 by then-DEP Commissioner Lisa Jackson laying out an implementation schedule. Jackson remained Commissioner for the next two and a half years after submitting that plan and was confirmed to lead EPA this past January.
"This audit is an indictment of DEP management for failing fundamental tests of competence," stated New Jersey PEER Director Bill Wolfe, a former DEP analyst. "Without basic procedures for assuring the accuracy and quality of performance data a public agency cannot even be sure that its shoes are tied."
This audit is just the latest failing grade issued to DEP management. In 2008, for example, EPA was forced to intervene and assume control of several state-supervised Superfund clean-ups, following a scathing Inspector General report decrying inordinate delays and mismanagement. Ironically, Jackson's prior EPA experience before she came to DEP had been in Superfund.
"Recent DEP Commissioners, including Lisa Jackson, have been far more concerned with political appearances than reality," added Wolfe, noting that an agency review commissioned by Jackson in 2008 did not mention a single issue tagged by the new EPA audit. "In order to effectively protect New Jersey's environment, we need to let public servant specialists do the job they are supposed to do."
###
Read the EPA audit on Quality Assessment
Look at the scathing 2008 Superfund audit
Review Lisa Jackson's record at New Jersey DEP
Revisit Jackson's DEP efficiency review
New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability
As I reported previously, Chris Daggett served as Chairman of the DEP "Permit Efficiency Review Task Force". He was appointed to that position by DEP Commissioner Lisa Jackson http://www.nj.gov/dep/permittf...
That DEP Task Force had ethical problems from the outset. Several of its members represented clients that had ongoing regulatory issues or projects seeking approvals before the DEP, including Daggett himself.
This, at best, created the appearance of a conflict of interest, or actual conflicts. State ethics laws prohibit creation of even an appearance of impropriety, as well as an actual conflict of interest.
To remedy these problems, DEP Commisisoner Jackson was asked to make the Task Force deliberations tranparent and to restrict conflicts of interest - oth she adn Daggett failed to do so:
NEW JERSEY TO CONSULT INDUSTRY ON ECO-REWRITES IN SECRET - "Efficiency" Task Force Members Not Barred from Self-Dealing with DEP
Trenton - An industry-dominated task force to recommend an overhaul of state anti-pollution permits and policies will work in secret, according to an e-mail from the Department of Environmental Protection (DEP) Commissioner Lisa Jackson to Public Employees for Environmental Responsibility (PEER). Commissioner Jackson also rebuffed PEER recommendations that materials submitted to the task force are made a public record and that task force members be barred from lobbying DEP for their clients.
On March 25, 2008, New Jersey PEER Director Bill Wolfe wrote Jackson asking that task force sessions be open to the public, materials submitted to the task force be made publicly available and that task force members "be precluded from having any contracts, pending regulatory approvals, or financial relationships with the Department" during the 120-day life of the task force.
In a return e-mail on the evening of April 2, 2008, Commissioner Jackson denied all of PEER's requests:
Public input "can only occur once the Task Force has completed its analysis and compiled the group's thoughts and recommendations. At that time, I will determine how to most effectively seek and obtain input from the public"; and
"I do not consider it necessary or reasonable to restrict members of the Task Force or their respective employers from having other business before the Department."
See this link for full documentation of these claims, including internal DEP documents, Jackson emails etc:
http://www.peer.org/news/news_...
BTW, a very reliable source has told me that Chris Daggett owned contamainted property and has huge economic stakes in DEP "brownfields", permitting, and toxic site cleanup issues he presided over and made recommendations on as Task Force Chair. I was also told, but have not confirmed, that Daggettt owned the parcel of contaminated Jersey City land that was involved in the Assemblyman Harvey bribery criminal indictment.
Frank Brill over at EnviroPolitics sent out a tweet about the news of a loss for Exxon in NJ Superior Court in their effort to limit damages for harming natural resources at two refinery sites in Elizabeth and Bayonne. Here's the background:
In 2007, the Appellate Division held that the state Department of Environmental Protection had authority under the state Spill Act to seek damages for the loss of use of natural resources adversely affected by the discharge of hazardous substances.
ExxonMobil claimed that the law defines "natural resources" as land owned, managed, held in trust or otherwise controlled by the state.
Exxon tried to argue that their land was not classified as "natural resoures" and also tried to say that that no other NJ court had ruled that the Public Trust Doctrine would apply. But the court rejected Exxon's arguments:
But in his July 24 decision, Judge Ross Anzaldi wrote: "This court will continue to read the Public Trust Doctrine expansively. Therefore natural resource damages are recoverable under the Spill [and Compensation Control] Act and the Public Trust Doctrine does not bar such recovery."
The ruling is a clear victory for the DEP. It appears this is a pretty significant ruling from the court with many implications. Back in 2007, the state sued 120 companies and expected to collect hundreds of millions of dollars in environmental resource damages. Exxon was one of those companies and doesn't seem pleased at all with the court ruling:
A company spokeswoman, Kristin Hellmer, issued a statement that said it disagrees with Anzaldi's holding "that the state holds a 'public trust' interest in perpetuity in private property it does not own, manage or control. This decision was based on an unprecedented interpretation of the Public Trust Doctrine that departs from more than a century of settled New Jersey law. ExxonMobil believes this decision undermines private property rights within New Jersey and raises serious constitutional issues."
The corruption scandal will not go away. Republicans will continue to use it to bash Democrats at all levels, and Christie will benefit indirectly. Recent evidence suggests that the constant media attention and partisan republican attacks are effectively exploiting the issue to drive up Corzine's negatives and make inroads with independents.
Earlier this week, the Star Ledger editorialized:
Consider CleanGreenNJ's call for a DEP government cleanup
Chris Christie released his energy plan yesterday and while we will certainly have time to look at the specifics, I wanted to point out a fundamental disagreement that Republican members of Congress and co-chairs of his own campaign have with the party standard bearer in NJ.
In announcing his plan, Christie tried to attack Corzine saying he hadn't done enough, while also trying to hook himself to the Obama train. But statements by Republican members of Congress, in justifying their support for the Energy legislation, stood in square opposition to the argument that Corzine hasn't helped New jersey lead the way. First Leonard Lance:
"The fact of the matter is New Jersey and the Northeast are well ahead of the curve on many of the key elements of the legislation before the House.
"Here at home, the state of New Jersey is already subject to limits on greenhouse gas emissions from power plants under the ten-state Regional Greenhouse Gas Initiative. And our state renewable portfolio standard is more aggressive than the federal program contained in the bill.
"New Jersey serves as a national model for its investments in new, clean energy technologies that have reduced greenhouse gas emissions and created thousands of jobs. I heard from a number of New Jersey's leading businesses that firmly believe today's legislation would strengthen our state economy through innovative and sustainable job creation. It is time for other states to follow New Jersey's leadership and do their share to set limits on greenhouse gas emissions and accelerate development of low-carbon energy sources and green jobs."
Follow New Jersey's leadership he says. Maybe Lance needs to talk to Christie and bring him up to speed. Joining them in that conversation could be Congressman Frank LoBiondo, who also recognizes New Jersey's role, under the leadership of Governor Corzine in leading the way:
"This is by no means a perfect bill but, for New Jersey businesses and families, many of the federal standards that will be created are mirroring state standards long on the books. For the past decade, New Jersey has been forward-looking in its energy policy and sought to establish diverse, renewable alternative sources of energy to meet the state's needs. From the development of biofuels based on crop waste and planning for additional nuclear reactors, to building small and large-scale wind farms and countless solar panel projects, individuals and municipalities recognized opportunities and took action.
"In the process, new local businesses were founded and jobs were created in the emerging 'green industry' here in New Jersey. What must happen next is the growth of domestic manufacturing of the materials needed for alternative energy production, such as solar cells, wind turbines and environmentally-friendly buildings. This legislation rightly focuses on growing that manufacturing base, creating green jobs and finally establishing our energy independence. The positive effects will be felt nationally and here in South Jersey. These are objectives I have long believed and advocated for as part of a national energy policy."
And four of those ten years were under the leadership of Governor Corzine, who Chris Christie is criticizing. So Chris Christie supports the federal efforts by President Obama, which members of his own party say were modeled after the efforts of our state, under the leadership of the person he is criticizing in the process. This must be more Christie logic.
On the heels of Chris Christie putting out a video talking about his plans for energy, the Corzine campaign is out with a web ad showing some more contradictions for Christie. As the Corzine campaign puts it, he'll say anything and you can't believe any of it. Let's go to the video:
With the LSP Bill, the DEP will have to undertake several things to implement the bill. They will have to implement a temporary licensing program for LSPs; remediation time frames, presumptive remedies, and support the LSP board once it the members are appointed among other activities. Additionally as the LSP does not automatically apply to current sites, the DEP will have to continue to oversee remediations for active sites. Once sites come in under the LSP program, DEP has to review all of the 1000s of documents that are generated from cleanups.
At the same time as the site remediation program's responsibilities will increase in the short run, its budget will decrease. The Governor's proposed budget reduces funding to site remediation by 4 million.
Environmentalist already had concern over the many loopholes in the bill and the lack oversight with a fully funded DEP; those concerns are magnified as the site remediation program is underfunded. Remember 50% of the RAO reviewed by Mass DEP required more work or were invalidated. How soon before something slips through the cracks here in NJ.
There are absolutely legitimate concerns as we shift to this new program. With many moving parts, you have the potential for problems. The state is completely remaking the way they handle the remediation of contaminated sites. The funding cut only complicates the problem as there are sure to be start up costs that come with the initial move. I don't know if I would call it the perfect storm for a site remediation disaster as green pages does, but I certainly think it's a developing front to watch. The current system wasn't working or sustainable, but people will have to watch and make sure the new process isn't actually worse.
After two and a half years of negotiations with "stakeholder groups," numerous public hearings and dozens of amendments, members of the environmental committees in the New Jersey Senate and Assembly yesterday afternoon unanimously released two identical bills creating a Licensed Site Professionals (LSP) program within the Department of Environmental Protection.
The bills are now in position for floor votes in both houses. Governor Corzine would like to have them delivered to his desk for his signature before the Legislature recesses for the summer.
Despite a backlog of 20,000 sites and no prospects for funding to increase staffing at the DEP, the state's major environmental groups continued their inexplicable, all-out opposition to the legislation at yesterday's hearing.
The legislation is modeled after a Massachusetts plan that has been in place since 1993. It has the support of the Governor, the DEP and both committee Chairmen. Environmentalists think it's the fox guarding the hen house. Follow me below the fold for more of their concerns and the other red flags that are being raised.
Both the Capitol Quickies blog and the Star Ledger Auditor Column report that assistant DEP commissioner Mark Mauriello will become the acting Commissioner replacing Lisa Jackson. The Auditor goes one step further saying the selection may be more permanent:
Mauriello, an assistant DEP commissioner in charge of land-use management, will run the department on an acting basis. But sources tell the Auditor the Corzine administration plans to nominate him to the cabinet post, not just as acting commissioner.
Whether he is acting or permanent, it appears that Mauriello will be assuming the reins at DEP for at least the near future. Jeff Tittle said the Sierra Club would prefer a different selection:
"Mark will be a very good acting commissioner, but we'd like to see someone like a Karen Kominsky," Tittel said, referring to the lobbyist, veteran Democratic operative and former deputy chief of staff for Govs. James McGreevey and Richard Codey.
Gov. Jon Corzine will announce today that Lisa Jackson, the state Environmental Protection Commissioner, will be his new Chief of Staff. Jackson will succeed Bradley Abelow, who will be staying on as an advisor to the Governor.
Corzine will need to nominate someone to replace Jackson in his cabinet.
A professional enginneer and Princeton University graduate, Jackson worked for the U.S. Environmental Protection Agency before moving to state government. She was Deputy DEP Commissioner under Governors James E. McGreevey and Richard Codey. She becomes the first African American to serve as a Governor's Chief of Staff in New Jersey.
It will be interesting to see who becomes the new Commissioner of the DEP following Jackson's move. Here was some recent speculation:
If Jackson moves to the Governor's office, Corzine will need to appoint a new Commissioner to run the DEP. Possible candidates include: Adam Zellner, the Governor's policy director who has served as DEP Assistant Commissioner and ran the Highlands Council and the state Smart Growth office; Eileen Swan, the Executive Director of the Highlands Council and a former Mayor of Lebanon; Highlands Council Chairman John Weingert, the Associate Director of the Eagleton Institute of Politics at Rutgers University and a veteran DEP staffer under two Democratic Governors and two Republicans; Jennifer Godoski, a former Democratic operative who is now Deputy DEP Commissioner for Policy and Legislative Affairs; John Watson, the Deputy DEP Commissioner of Natural and Historic Resources, and the brother of Assembly Majority Leader Bonnie Watson Coleman; and State Sen. Robert Smith (D-Middlesex), the Chairman of the Senate Environment Committee.
Conectiv Energy plans to appeal a $5.3 million fine imposed on it by New Jersey's Environmental Protection Department for allowing excessive emissions of hydrogen chloride at its Deepwater Generating Station in Salem County.
Company spokeswoman M.Q. Riding says Conectiv was surprised by the fine, adding it has been appealing the limits of its emissions permit since the spring. She says the company disputes the DEP's findings.
The company says they dispute the DEP's findings, but at the same time it seems they're admitting to the emissions and trying to argue that it wouldn't be a problem, if they only had higher limits on the emission levels they were allowed.
The Conectiv Deepwater Generating Station in Salem County faces $5.3 million in fines and the loss of a permit needed to operate its primary generator as the result of its continued failure to address excessive emissions of a hazardous air pollutant, Department of Environmental Protection Commissioner Lisa P. Jackson announced today.
"We are imposing these stiff sanctions because this company has been repeatedly recalcitrant when told to correct this problem," Commissioner Jackson said. "Compliance is DEP's first priority here and elsewhere."
Between December 2007 and April 2008, Conectiv ignored DEP orders to resolve problems with excessive emissions of hydrogen chloride from the boiler for the primary generator at the power plant, located in. Pennsville adjacent to the Delaware Memorial Bridge.
The order specifically cites the company for exceeding the rate of emissions allowed in its permit on 106 days during this period. The company has taken no steps to correct the problem.
...to reduce smog-forming pollution at six of its generating stations located in southern New Jersey. The settlement also requires Conectiv to pay $2 million in penalties to the state, $1 million of which may be used to fund an urban re-forestation project in the affected airshed. The company estimates the cost to install, test, maintain and monitor new pollution controls required by the agreement will reach $3 million.
Apparently those new pollution controls still aren't working well enough.
State Superior Court Judge Ross Anzaldi said Exxon has polluted waterways, wetlands and marshes near its former refinery sites in Bayonne and Linden.
Milgram's office represented the DEP in the suit, which alleged the sites were heavily contaminated with oil. Anzaldi ruled there was 7-17 feet of oil at the Bayonne site before cleanup operations began in 1991.
The Linden refinery, no longer owned by Exxon, discharged hazardous materials into Morses Creek while owned by Exxon, Anzaldi said. He also found the plant contaminated the wetlands around the Linden site were contaminated with petroleum distillate residues.
The DEP filed the lawsuit to require Exxon to restore some of the natural resources it allegedly damaged and to compensate the public for the alleged loss of natural resources.
Here's what the AG had to say:
"This court decision is important in our ongoing effort to hold polluters accountable through litigation," Milgram said. "We remain committed to working with (the Department of Environmental Protection) to have those who damage our environment held legally responsible, and to obtain compensation for natural resources lost to contamination."
In pursuing its case against ExxonMobil, the state argued that DEP has authority under the Public Trust Doctrine to protect the public?s right to an uncontaminated environment.
This common law doctrine, state attorneys maintained, has allowed the state to provide public access to beaches and require developers of former wetlands along the Hudson River to provide a river walk with public access.
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