What Are You Giving Up for Lent?

View of the Holy Rosary Cemetery in Taft, Louisiana.

Now that our calendar has shifted from Mardi Gras excess to Lenten introspection, this becomes the innocuous conversation-starting question of the next few days.

For those unfamiliar with the question or its premise, it’s a self-sacrifice, made for religious (primarily Catholic) purposes, and is comparable to the secular New Year’s resolution. Every time during the 40 days between Ash Wednesday and Easter that you “resist temptation” to indulge in whatever behavior you’ve chosen to give up, it makes you more “Christ-like.” There’s also the hope that you’ll “give up” some harmful or self-indulgent behavior permanently, forming a new, better-for-you habit during the forty days.

The state has apparently decided now is a good time for “We, the people” of Louisiana to make some more environmental sacrifices on industries’ behalf.

The Louisiana Department of Environmental Quality is revising the rules of the Risk Evaluation/ Corrective Action Program, also known as RECAP. Initially set up in 1998 to develop standards for the amounts of measurable pollutants in soil and water that should necessitate cleanup, the rules have been revised twice in the intervening 20 years. According to DEQ, the last revision was in October 2003, and this newest update will “assure that appropriate criteria is based on the latest science.”

DEQ held a public hearing on the proposed rules changes last Friday afternoon, in Baton Rouge.

“Nobody in south Louisiana holds a hearing of this significance – nobody in their right mind schedules a damn meeting on the eve of Mardi Gras weekend!” Retired U.S. Army Gen. Russell Honore’ – now leader of the pro-environmental group Green Army — declared none-too-gently. His outrage over the timing of the public hearing prompted applause from the two dozen or so environmental activists in attendance at the one-and-only public hearing for comments on the proposed new statewide regulations.

For while DEQ has been technically complying with the public notice/public hearing requirements for these proposed rule changes, it certainly seems the effort has been minimalistic, at best. For one thing, the only notice of the public hearing was published January 20, in the Louisiana Register, a monthly on-line publication of the state’s Division of Administration. No newspaper notices were published. And the total content of the hundreds of pages of regulatory modifications is only available by downloading a zip file from the DEQ website. Nowhere has the text of the regulations been printed out in full – not even as public or media handouts at the public hearing.

What changes are they hoping few Louisiana citizens will notice or question? They sum it up in two paragraphs early in their document files:

“Often, regardless of the resources spent, remediating to pristine conditions has been unachievable and risk is not reduced. The time and effort expended in making these sometimes futile efforts can be better spent on projects that provide greater reduction in risk to human health and the environment. RECAP regulation revision will enable LDEQ remediation staff to better focus their efforts on sites posing the greatest risk.”

And the second key notation is this:

“The written establishment of the Department’s position on these issues will reduce transaction costs, not only for the regulated community, but also the Department.”

Translation?

Under the present rules, we, the state, and the industries we regulate have been spending too much trying to make polluted land and waterways safe for living things. From now on, we’re going to increase the amounts of contaminants we allow before requiring a clean-up. From now on we, your Department of Environmental Quality, and they, the polluting industries, will only have to spend money on the worst of the worst.

Scientists, environmental attorneys and environmental activists who attended the public hearing last Friday didn’t hesitate to express their outrage.

Gen. Russell Honore’

“Why is DEQ doing this?” Gen. Honore’ asked rhetorically. “You say it in your proposal: ‘for reduction in cost for industry to remediate contaminated sites’. We, the people of Louisiana expect you to be increasing the standards, not reducing them, just as we expect you and industry to increase – not reduce the cleanups you do!”

“Think about this,” Honore’ added, “We already have too many places with warnings in place about eating much of the fish caught there. If we allow more contamination, we jeopardize our commercial and recreational fishing industries, as well as the confidence in our seafood industry. Remember how scared people were of eating our crabs and crawfish, oysters and catfish and sportfish after the BP oil spill? Taking the cheapest route will cost us more than you realize!”

Despite spending $179-million on confidence-boosting advertising in the aftermath of the BP spill, demand for Louisiana seafood declined by half on average – an estimated $200-million annual loss – for the first three years following the spill.

BP oil spill residuals, February 2019

“Lessening the standards does not protect the environment. Instead, these proposed revisions give industry a ‘get out of jail free card’ with regard to cleaning up the pollution they have caused!” said Scott Nesbit, a biologist who has been working to restore the Spanish Lakes ecosystem. “Under these proposed rule changes, the Shell Oil-created contamination would be allowed to remain. You’d be letting them walk away without putting any money into cleaning up the mess they’ve made, leaving the cleanup of Spanish Lakes and the Bayou Manchac watershed to the minority community of St. Gabriel.”

Nesbit is one of the plaintiffs in a so-called “legacy lawsuit”, filed in December 2010, seeking to force Shell Oil to clean up the remnants of its oil drilling and waste pit disposal operations that operated in the area from the 1940s through the 1990s. The suit, which has alternated between scheduling trial dates and backing off into settlement negotiations repeatedly over the past 8 years, could end up dumping responsibility for the cleanup on Louisiana taxpayers. Included in the alleged environmental damage delineated in the suit, is contamination of area groundwater – the Southern Hills Aquifer, which serves the entire capital region – with brine: saltwater and chemicals.

Spanish Lakes aerial. Courtesy LPB

Among the remediation methods listed in the several hundred pages of proposed new RECAP regulations is greater emphasis on “monitored natural attenuation”. That is defined as “the biodegradation, dispersion, dilution, sorption, volatilization, and/or chemical and biochemical transformation/stabilization of constituents to effectively reduce constituent concentration, toxicity, mobility, mass, or volume to levels that are protective of human health and the ecosystem.”

That’s a whole lot of fancy words to avoid plainly saying “We’re going to sample it periodically and hope that Mother Nature takes care of it over time.”

“Industry has abused Louisiana’s environment to get where they are, and the RECAP rules were initiated to address the vestiges of industry’s poor waste-disposal practices,” stated Bill Goodell, an environmental attorney based in Lafayette, who previously did environmental law with the Louisiana Attorney General’s Office, and is now representing Lafayette residents suing Union Pacific over residual contamination at the site of that company’s former rail yard.

1950s map of railyard in Lafayette

“In 1984, when the state created your agency – the Department of Environmental Quality – the Legislature said the state should not have to bear all the cost of maintaining a safe and healthy environment. Yet these changes to the regulations would now make all of us responsible for everyone else’s mess,” Goodell continued.

“When clean-up lawsuits were first filed, industry maintained science was on their side – that Louisiana clay, used to line disposal pits and providing a protective layer above the aquifers, was impermeable and migration of contaminants ‘couldn’t happen.’ Thirty years of land disposal, neglect, flooding and spillage have proven that wrong. And now industry is abandoning the ‘can’t happen’ defense in favor of saying ‘but it’s benign’. By raising the amounts allowed, you – DEQ – are complicit in their end game. You are complicit in industry profiting at our expense.”

“You’re our protector,” Goodell concluded. “Be true to your citizens, not to profit-taking industry.”

Goodell had it right – up until that final statement and plea.

What so many environmental advocates miss, as they attend public hearing after public hearing and repeatedly argue for regulatory agencies to minimize the allowable harm, is the true mission of the regulatory agencies. They are NOT there to protect us. They are NOT there to prohibit the harm. They are not even there to minimize the harm.

By the fact of regulating the amount of harm allowed, their mission and purpose is to guarantee that harm will be done. Their job is to permit industry, and therefore to permit industry profits.

They are there to guarantee your sacrifice on the altar of corporate profitability.

What are you giving up for Lent – and beyond?

(The public comment period on the RECAP revisions remains open until 4:30 p.m., Friday March 8, with submissions accepted by fax at (225) 219-4068, or by emailing deidra.johnson@la.gov)