Natural Gas NOW
A loss in court this week raises serious questions of who else, beside elitist foundations opposed to oil and gas, finance the Delaware Riverkeeper and why.
The Delaware Riverkeeper has lost another one in Federal Court but the real question is why it brought the case at all. That, in turn, raises a second, perhaps even more important question of who all is funding the group and why. Once again there is also yet another question of how this all comports with the supposed tax-exempt purposes of the organization.
The court decision, rendered by a New Jersey Federal District Court judge on June 30, was reported in Philly.com Thursday:
A federal judge in New Jersey has ruled against an environmental group and its claim that a soil-recycling company was endangering the environment at three Gloucester County sites, including two parks.
U.S. District Judge Renee Marie Bumb wrote in a June 30 opinion that the Delaware Riverkeeper Network had failed to prove its case against Maryland-based Soil Safe Inc., which has provided recycled petroleum-contaminated soil in Logan Township at Gloucester County Park, Logan Equine Park, and a property that is home to the Logan Recycling Center.
“Plaintiffs have not established that Soil Safe’s product is a solid waste or that it may present an imminent and substantial harm to the environment,” Bumb wrote in her 80-page opinion.
Why would the Delaware Riverkeeper oppose the recycling of soil that would, obviously, clean up some contaminated sites while providing soil for reuse to create new park and recreation facilities; especially when all this is regulated to the hilt of the sword anyway? Isn’t this a pitch perfect illustration of a two-for-one “win-win” deal? Granted it’s at least about the Delaware and not some far-flung matter of challenging natural gas activity on the other side of Pennsylvania, as we discussed yesterday, but, still, what gives?
Reading between the lines, the court’s opinion suggests the possible answer and it’s about the money. The opinion (highlighting added to identify key sections) may be found here. Reading through the thing I found much that was exactly as I expected, including this gloriously self-righteous description, by Maya van Rossum, of the Delaware Riverkeeper’s mission:
To “champion the rights of communities to the Delaware River and tributary streams that are free flowing, healthy and abundant with the diversity of life.”
That was followed by this qualifying bill of goods, which Maya apparently sold the judge:
The Delaware Riverkeeper Network limits its focus to the Delaware River watershed and all issues that might impact the main-stem Delaware River and its tributaries.
Really? Tell that to the people of Middlesex Township, more than 200 miles outside the Delaware River Basin who were endlessly harassed by the Delaware Riverkeeper for daring to simply take a pro-gas position with no discernible connection to the Delaware.
The court opinion also demonstrates, yet again, how the Delaware Riverkeeper operates; by throwing a shovelful of crap against the wall in the hopes the tiniest bit of it might stick or at least stay there long enough to delay things and kill projects that way. Their M.O. is the hire supposed “experts” on the cheap for the purpose of generating flimsy reports just good enough to get into court. The court proceedings are, in fact, the end, not the means. Getting to court, in the world of the delay game, is often good enough to make things go away. Winning or losing on the legal front is somewhat beside the point if you’re successfully slowing things down to a dead stop and creating a ton of negative publicity for your opponent in the meantime.
Here’s what I mean by flimsy, the following being some of the various court findings of fact:
Plaintiffs hired an environmental consultant, Uhl & Associates, Inc., to perform sampling on Plaintiffs’ behalf. Uhl & Associates is headed by Mr. Vincent Uhl, who holds a degree in mechanical engineering and a master’s degree in agricultural engineering, as well as a master’s in hydrogeology from the University of Arizona.
Uhl & Associates collected one sediment sample from Birch Creek and two sediment samples from “drainage pathways” between the County Park and Raccoon Creek.
No Raccoon Creek sediment samples were taken upstream from the Gloucester County Park to compare against the two Raccoon Creek samples.
No background samples were taken from locations nearby the Raccoon Creek samples to compare against the Raccoon Creek samples.
No Uhl & Associates employee ever observed rainwater runoff flowing into the drainage pathways. Mr. Uhl never visited the County Park during a rainfall.
Uhl & Associates did not collect any surface water samples, groundwater samples, or plant or animal tissue samples from Raccoon Creek. They also did not collect any stormwater runoff from the County Park for laboratory analysis.
Mr. Uhl did not test Soil Safe’s product for its susceptibility to erosion or examine any data regarding the cohesion and surface strengths of Soil Safe’s product after it is placed.
The Birch Creek sampling site was more than 2,000 feet from the portion of the property where Soil Safe conducts its operations.
Plaintiffs admit that dibenz(a,h)anthracene was detected in less than five percent of Soil Safe product sampling and that the 95% UCL for that chemical was at the laboratory detection limit.
Uhl & Associates did not identify background levels of arsenic or any other contaminant in Birch Creek or Raccoon Creek.
Mr. Uhl acknowledged that just having one sample from Birch Creek left him unable to say whether the sediment that Uhl & Associates sampled was more or less contaminated than other parts of the creek.
Mr. Uhl did not conduct any investigation to rule out other potential point source, non-point source, agricultural, or industrial sources of pollution to Birch Creek.
Mr. Uhl never observed rainwater runoff flowing into the drainage pathways, nor did he test any runoff.
Mr. Uhl undertook no study or investigation to rule out other potential sources impacting the locations where the two Raccoon Creek sediment samples were collected.
The Uhl & associates off-site sampling report described the collection of three off-site sediment samples by Uhl & Associates in August 2015 and summarized the results of that sampling.
Mr. Uhl was not present at and did not participate in the off-site sampling.
Mr. Uhl’s sediment samples do not match the physical characteristics of Soil Safe’s product.
Mr. Uhl testified that he was not expressing an opinion that the sediment that Uhl & Associates sampled from Birch Creek was Soil Safe product.
Indeed, the chemical substances, including metals, PAHs, PCBs, and dioxins, detected in the Uhl & Associates Birch and Raccoon Creed sediment samples are “ubiquitous” and common in soil and sediments in New Jersey.
Metals, PAHs, and PCBs were detected in the dredge spoils deposited by the U.S. Army Corps of Engineers in the area of the Birch Creek Property and the future Gloucester County Park prior to the start of Soil Safe’s operations.
The results of the Uhl stockpile sampling showed no chemical constituents at levels over the RDCSCC, and thus showed that the sampled product met the NJDEP requirements for use as capping material at the Gloucester County Park.
If that was enough of a demonstration of flimsy, the Delaware Riverkeeper had another expert:
Plaintiffs rely upon the expert testimony of Dr. Robert Tucker to support their contention that Soil Safe’s product creates an “imminent and substantial endangerment” to the environment. The parties agree that Dr. Tucker and his partner Dr. Angela Cristini provided a four page report, “with no citation to any scientific studies or technical guidance.”
Dr. Tucker testified that his understanding of an imminent and substantial endangerment occurred when he looked at the sampling results and they contained “a variety of toxics.” Turning to specifically beryllium as a representative compound, Dr. Tucker testified that any amount other than zero creates an imminent and substantial endangerment. Pressed further on this, Dr. Tucker stated that he did not know whether berylliums exceedance of the Impact to Groundwater Screening criteria made it harmful to aquatic organisms.
Drs. Cristini and Tucker did not conduct an ecological evaluation pursuant to NJDEP guidelines, nor did they reference toxicity reference values (“TRVs”) in arriving at their opinion.
Additionally, they made no effort to identify and rule out other potential sources of contamination to Birch Creek and Raccoon Creek. Indeed, Drs. Cristini and Tucker admitted they were not presenting any opinion that Soil Safe was the source of the chemical constituents in the Birch Creek and Raccoon Creek sediment samples.
Instead, Dr. Tucker testified at his deposition that he did not know what the NJDEP Impact to Groundwater Default Screening Level signified, but that he nonetheless believed that the presence of beryllium at a concentration about that level meant that beryllium posed a danger. When asked what level of beryllium would not pose a risk to aquatic organisms, Dr. Tucker was unable to give an answer other than “I don’t know exactly”.
Dr. Tucker spent a total of four to five hours developing his opinion and drafting his report.
And, so it went, leaving no doubt as to why the court ruled against the Delaware Riverkeeper. But, why was it even there? The answer is to found in case law and legislation giving environmental groups who claim to represent the public good some immense and unconstrained powers to intervene and raise hell. They are legally empowered tyrants in many cases. In this case, Maya got into the case because of this:
Ms. van Rossum’s enjoyment of her use of the Delaware River has diminished because she believes that Soil Safe’s operations are ongoing and create potential implications for water quality because Raccoon Creek and Birch Creek are tributaries of the Delaware River. Specifically, Ms. van Rossum passionately testified to her personal belief that Soil Safe was contaminating the Delaware River and its tributaries and that “does impact [her] enjoyment of the Delaware River when [she] go[es] into that reach of the river, knowing that those operations are ongoing, that there are potential implications of water quality, whether it’s on the tributary or on the main stem river, as well as the ecological system’s critters that [she] ha[s] worked very long and hard to protect because of professional appreciation for them and a personal appreciation of them does impact [her] enjoyment when [she] visit[s] that reach of the river, both [her] recreational enjoyment and [her] aesthetic enjoyment.”
All it took for Maya to get in the case, in other words, was to say she occasionally recreated nearby and feared what might happen to her recreational experience, bearing in mind she lives nowhere nearby. It’s a big shovelful of nothing, but its enough in today’s world, which tells us reform is long overdue. Maya was able to cost Soil Safe years of delay and hundreds of thousands of dollars in legal expense (to say nothing of taxpayer expense for the court) with a couple of flimsy reports.
Still, this doesn’t answer why the Delaware Riverkeeper targeted Soil Safe. Its chief funders—the wealthy trust-funders from the Haas, Rockefeller and Wallace families, et al—couldn’t have had much interest in this case. An intriguing possibility, though, is found in a remarkable footnote to the court opinion (see pages 73-74):
The Court notes the disconcerting allegation made by Soil Safe concerning the role that Mr. Andrew Voros, a consultant for Clean Earth, a direct competitor of Soil Safe, purportedly played in the genesis of this litigation. The Court need not address this issue, which was not part of the record at trial.
Soil Safe appears to have suggested the Delaware Riverkeeper litigation was motivated by the interests of a competitor. The judge, in turn, took the allegation seriously enough to mention it in her opinion, which is quite amazing, to say the least. What makes things even more interesting is the fact the Delaware Riverkeeper, as we noted here, received a $205,000 anonymous donation about the same time the litigation began.
The Schedule A above is not normally made publicly available, but retained by the filer. The Delaware Riverkeeper or someone else, though, appears to have inadvertently left it in a copy filed for 2013. This data is typically only available if one searches the returns of donors and, of course, those of private individuals are not searchable. So, there was no apparent reason to list a donor as anonymous unless, of course, there’s something really important to hide, even internally. But, we can’t know under the circumstances.
Still, the IRS instructions suggest the name of the donor must be kept on Schedule A, despite the fact the Schedule is not itself publicly reported. Therefore, this “anonymous” listing is nothing less than curious in light of the Delaware Riverkeeper’s strange pursuit of the case against Soil Safe at about the same time. Who else finances the Delaware Riverkeeper and why, is the question. When names of donors aren’t reported, even internally, how can we know?
UPDATE: Further checking of the court records reveal more. A previous court decision from November included this:
While not dispositive to the outcome of the summary judgment motions now pending, the Court does feel compelled to note the factual issues concerning Clean Earth, a Soil Safe competitor. Soil Safe has put forward evidence, some contested and some uncontested, that this lawsuit was spurred on by Andrew Voros, a consultant for Clean Earth. Mr. Voros, who has been paid in excess of $100,000 by Clean Earth (a fact not disputed) to investigate Soil Safe’s operations, took the information he had received about Soil Safe to the Delaware Riverkeeper Network, with whom he has interacted for purposes of pursuing this litigation.
Voros, who has degrees in biology and psychology but likes to get into geology, is associated with the Rahway River Watershed Association and has a history of working together with the Delaware Riverkeeper.