WolfeNotes.com

Yesterday, I posted some photos of sunset.

So, today, we post some photos of sunrise, just down the trail.

We understand the significance of the day, and support our neighbors, see:

• Trump Border Wall Construction Blasting Sacred Sites
• They Policed Paradise and Put Up An AeroStat
• Rio Grande – Off The Wall
• Ajo Murals
• How The West Was Won? Threats To Democratic Liberal Traditions Explored At The Tucson Book Festival

I see my light come shining
From the west down to the east
Any day now, any day now
I shall be released.  ~~~ Bob Dylan (The Last Waltz version)

We’re encamped and wintering in the Sonoran desert, an extraordinarily beautiful but harsh place.

We’re in or on the edge of Cabeza Prieta National Wildlife Refuge.

We’re headed to Organ Pipe Cactus National Monument and the border wall – we’ll be posting photos from there in the next weeks.

Hope you enjoy the photos. We’ve got new gear!

If you look closely, you can see the cross on the top of the mountain. That man made symbol is about 2,000 years old, a tiny fraction of the age of the mountain upon which it rests. It’s pretty obvious which will last longer.

We Urge Radical Reforms And A New Framework

Abandon Individual Chemical Specific Risk Assessment Based Standards

Embrace The “Precautionary Principle” And Transition To A “Treatment Based Approach”

The NJ Drinking Water Quality Institute (DWQI) is seeking public input on which chemicals and how to regulate to protect your drinking water:

The Drinking Water Quality Institute (DWQI) will be holding a meeting on Thursday, December 3^rd, from 1:00 PM to 4:00 PM. Due to concerns around COVID-19, this meeting will be held remotely, using Microsoft Teams. If you would like to attend, please contact watersupply@dep.nj.gov, and include “December 2020 DWQI Meeting Invitation” in the subject line.

… the DWQI will be giving considerations to the next contaminants it will address. Therefore, if you have any input regarding the next topic of research for the DWQI, please include the name(s) of any contaminants of concern you may have in the body of your RSVP email.

We are urging the DWQI to dust off an April 2010 DEP policy paper titled: (my emphases)

• Investigations Related to a “Treatment-Based” Regulatory Approach to Address Unregulated Contaminants in Drinking Water

The New Jersey Department of Environmental Protection (Department) is focusing on new approaches to address the occurrence of unregulated contaminants found in drinking water throughout the State. These chemicals may be present individually or as mixtures, they are present at low concentrations, and little if any toxicity information is available for most of them. Discussions on possible new approaches for addressing their occurrence began in the 1990s when synthetic organic contaminants were discovered in a water system supplied by groundwater. Subsequently, many additional studies in the State have been conducted, and the Department is currently investigating the possibility of a “treatment technique” approach to regulating mixtures of organic chemicals in drinking water, as summarized below

The DEP solicited formal public comments on this new regulatory strategy and approach back in 2004 (see NJ Register Public Notice), but never followed through on it.

That DEP policy paper is based on several prior and ongoing DEP research projects, most of which focused on important questions, including:

The overall objective of this project is to investigate the effectiveness of conventional and advanced water treatment processes for the removal of unregulated organic chemicals (UOCs) such as pharmaceuticals and personal care products and industrial and household use organic chemicals from surface water systems. Specifically, this research is designed to answer several questions including: 1) What UOCs are removed by conventional water treatment processes? 2) What additional UOCs are removed with advanced processes such as GAC and ozone? 3) What per cent removal can be achieved with conventional and conventional plus advanced processes? 4) What process design parameters and operating conditions are associated with these removals? 5) How effective are current analytical methods in quantifying low levels of UOCs? 6) Is it plausible for NJ to consider a “treatment-based” regulatory approach for managing UOCs in drinking water in the state?

DEP found that there are over 500 unregulated toxic chemicals in NJ drinking water and “little if any toxicity information is available for most of them.”

DEP and the DWQI are flying blind. The public has no idea if their drinking water is “safe”.

[***Note: If you think I exaggerate, keep in mind that the Tom’s River, NJ childhood cancer cluster was caused by an unregulated chemical (according to NJ Dept. of Health): (emphasis mine)

A previously unknown chemical contaminant related to the Reich Farm site – styrene-acrylonitrile trimer — was identified in the Parkway well field (one of the supply’s eight well fields), resulting in the closure of two wells and an expanded water treatment system. …

The [epidemiological] study found that prenatal exposure to two environmental factors in the past were associated with increased risk of leukemia in female children. These exposures were: 1) access to drinking water from the Parkway well field after the time that the well field was most likely to be contaminated, and 2) air pollutant emissions from the Ciba-Geigy chemical manufacturing plant. ~~~ end Note]

DEP found that the current chemical specific risk assessment based approach conducted by the DWQI and the DEP to set chemical specific “maximum contaminant levels” (MCLs) as drinking water standards was not “feasible”:

That DEP paper also found that there were available treatment technologies that could remove virtually all these chemicals to very low levels and that these technologies were not expensive (particularly in light of the enormous public health benefits that would result from avoiding adverse health effects of contaminated drinking water.

DEP did not quantify these benefits, nor should a traditional ethically repulsive “cost-benefit analysis” be used to guide these public health decisions. (see also: “The Rights of Statistical People“

In light of these incredibly important DEP findings, we are urging the DWQI to abandon the current scientific and regulatory approach to recommending drinking water standards (MCLs) to DEP.

We did this almost a decade ago in a formal “petition for rule making” which DEP denied (for details, see: Filter the Chemical Soup in New Jersey’s Drinking Water).

Instead of the current chemical specific risk assessment based approach to MCLs that DEP found “not feasible”, we urge the DWQI to research and make recommendations to the Governor, the DEP and the Legislature regarding adoption of an entirely new policy, scientific and regulatory framework too regulating drinking water quality, as follows:

1. Embrace the “Precautionary Principle”:

The precautionary principle asserts that the burden of proof for potentially harmful actions by industry or government rests on the assurance of safety and that when there are threats of serious damage, scientific uncertainty must be resolved in favor of prevention.

The precautionary principle has a number of dimensions and benefits that make it superior to a risk assessment based framework:

Environmental scientists play a key role in society’s responses to environmental problems, and many of the studies they perform are intended ultimately to affect policy. The precautionary principle, proposed as a new guideline in environmental decision making, has four central components: taking preventive action in the face of uncertainty; shifting the burden of proof to the proponents of an activity; exploring a wide range of alternatives to possibly harmful actions; and increasing public participation in decision making.

2. Adopt a “Treatment Based Approach”

(see the above linked DEP policy paper, which would need to be updated and expanded upon to form the basis for recommendations by the DWQI to the Gov., DEP Commissioner, and Legislature.

While a treatment based approach could be implemented under current law, the precautionary principle would likely need new legislation.

3. Phase out the current chemical specific risk assessment based approach

The current scientifically flawed and ethically challenged risk assessment based framework has outlived its’ useful life. There are diminishing returns. It is slow, costly, not transparent, and does not adequately protect public health. There are scientific and ethical problems with risk assessment. It is ripe for complete overhaul.

This long known set of flaws are particularly relevant in light of NJ’s new “environmental justice” legislation that directs DEP to consider vulnerability of poor and minority people: (Heinzerling, p. 202)

I urge readers and the public to make this case to the DWQI as they requested.

It makes no sense to continue on the individual chemical specific risk assessment based approach, if for no other reason than it would take hundreds of years to get around to regulating all the chemicals we now know are present in drinking water.

This is a heavy lift, scientifically and politically. It will be strongly opposed by the private water companies, because it will increase their costs, reduce their profits, and require capital investment.

It won’t happen without strong public support, backing by the scientific and public health communities, and political demands by environmental groups.

Now is a good time to make it happen – the old regulatory framework is exhausted and discredited.

A Series Of Pipeline Construction Accidents Illustrate The Dangers of Deregulation

DEP just lifted suspension of permits and authorized resumption of Horizontal Direction Drilling

You are about to read a very rare story. A story of a bureaucracy strongly suggesting – almost flat out admitting – that they made mistakes and their regulations are lax. This is virtually unheard of. Follow.

For years, we have been documenting serious failures during construction of NJ pipelines and explaining how these events expose lax regulatory oversight and enforcement by NJ DEP,  (and be sure to hit the links to awesome photos!)

• Tennessee Gas Pipeline Drilling Causes Sinkhole Road Collapse (2013)
• This is What Gas Pipeline Construction Looks Like (Part 1 of 2)
• This is What Gas Pipeline Construction Looks Like (part 2 of 2)
• The Elysian (Fracked) Fields of Princeton – Montgomery

DEP made no regulatory changes in response to these disasters.

During the Christie Administration, we warned that loopholes in current laws (like the Highlands Act exemption for linear utility development) and DEP’s continued efforts to expand the use of and rely on cursory regulatory oversight of pipelines via mechanisms like “General Permits” (GP’s) and “Permits-By-Rule” (PBR) would result in future environmental disasters.

And we criticized the Christie DEP’s rollbacks of lax freshwater wetlands, stream encroachment, and stormwater management rules because, among other things, they further weakened DEP’s regulatory oversight of pipeline construction.

During legislative oversight hearings on those DEP regulatory rollback proposals, DEP’s Deputy Commissioner Ray Cantor and Assistant Commissioner Ginger Kopcash flat out lied to legislators, to the media, and to the public and strongly denied our claims.

All those rollbacks have not been revoked by the Murphy DEP.

So, we were not surprised by the most recent accident by NJ Natural Gas this summer:

• Drilling work halted on natural gas pipeline after mishap damages N.J. couple’s house

In response to that disaster, environmental groups filed a motion to stop construction.

But we were surprised by the failure of the media and environmental groups to analyze the underlying cause of the failure.

We were disappointed by the failure to investigate DEP’s lax oversight and educate and focus public outrage on the fact that pipeline construction is governed by lax DEP regulations, including Freshwater Wetland General Permit #2 (“Underground Utility Lines” (p. 63) and Flood Hazard Act Permit-By-Rule #36 (“placement of an underground utility line using directional drilling or jacking”  p. 74)

FWW GP#2 completely deregulates HDD:

[Important context: keep in mind that the FWW regulations are where DEP codifies its authority under Section 401 of the Clean Water Act to issue a “water quality certificate”. Several other States – but not NJ – have used that authority to kill proposed pipelines. HDD under wetlands is not regulated so not subject to a 401 WQC review.]

FHA PBR #36 – for HDD under rivers and streams – is basically a self certification by the pipeline company, with NO DEP or public review.

This is crazy. Insane. Irresponsible. Reckless. Dangerous. Foolish. Stupid. Obscene.

Nor were we surprised that – despite the fact that even the lax DEP regulations gave DEP the power to revoke the GP and PBR permits and require a more rigorous site specific “Individual Permit (IP), – that via letter of November 9, 2020, DEP lifted the suspension of permits and authorized resumption of pipeline construction and “Horizontal Direction Drilling” (HDD). (and I saw no criticism or media coverage of this).

So, we thought we’d ask DEP what their rationale was.

In a November 20, 2020 email to DEP, I wrote: (I’ve omitted DEP staff names):

Greetings – I was recently forwarded the Department’s November 9, 2020 letter to NJNG regarding suspension and reinstatement of FWW and FHA approvals and have a few questions.

I read the applicable regulations (freshwater wetlands and stream encroachment) and understand that the Department had the option of revoking the GP and PBR and mandating a new site specific individual permit.

Given the circumstances, I’m curious as to what the Department’s rationale is for not mandating an IP.

Is that written down anywhere?

I noted that NOV’s were issued. Has the Department finalized those and imposed enforcement fines and/or penalties?

Finally, I’m curious about the DEP “request” that DEP compliance and enforcement staff be on site for HDD resumption. Why was this made as a “request” and not a formal permit condition or enforcement Order?

Appreciate your timely response.

Respectfully,

But what we were shocked by was – after years of being ignored and sometimes even personally attacked by DEP – the rapid response we got from DEP.

We were shocked not only by how quickly DEP responded, but by what they admitted. DEP replied, not with obfuscation weeks or days later, but just hours later. DEP wrote:

Mr. Wolfe

The Division evaluated the strategy for the remaining HDDs submitted by NJNG and consulted with technical experts within the Department and with New Jersey Geologic Service.  Based on our review and the oversight that will occur with the Department’s Enforcement bureau, the Department felt it was appropriate to re-instate the permit.  The current regulations essentially deregulate HDD under freshwater wetlands so there were certain limitations on the actions that the Department could take.  However, based on information that we have received from multiple interested parties, the Department is evaluating the rules to see if changes to the regulations are necessary.

I don’t have a lot of information on the status of the NOV.  That is being handled by our Enforcement group.  If you would like information on the status of that, you can reach out to xxxxxxxxxxx

Last, the Department will have oversight over the HDD resumption.  The letter mentions a “request” but we conveyed to NJNG in meetings that we wanted to have representatives onsite.

Let me emphasize and repeat that.

According to the Murphy DEP:

“The current regulations essentially deregulate HDD under freshwater wetlands so there were certain limitations on the actions that the Department could take. However, based on information that we have received from multiple interested parties, the Department is evaluating the rules to see if changes to the regulations are necessary.

We look forward to DEP’s upcoming “Climate PACT” rules closing these loopholes and strengthening the current broken regulations and regulatory oversight.

In the meantime:

• I hope that Senate Environment Committee Chairman Bob Smith reads this. Maybe he could dust off his failed legislative veto Senate Resolution SCR 66 to declare even more DEP regulatory rollbacks “inconsistent with legislative intent”.
• I hope that Ray Cantor (now at NJ BIA) and Ginger Kopcash (who is still at DEP!) read this and reflect upon their lies and that their credibility suffers for it.
• I hope that the NJ fake green groups, who signed off on the Bob Martin/Senator Sweeney “compromise” to avoid legislative veto and insisted that pipelines could be stopped and adequately regulated under DEP regulations are ashamed of their ignorance, weakness and corruption.
• And I hope the NJ press corps – especially NJ Spotlight – who wrote this as a “he said she said” story hold the liars and dangerous fake green fools accountable.

[End Notes:

1. This post is limited in scope to pipeline construction and DEP’s land use regulations.

There are far more significant flaws in DEP’s regulations – which DO NOT CONSIDER OR REGULATE GREENHOUSE GAS EMISSIONS from major fossil infrastructure projects, like pipelines (and the fracking wells, the pipeline transmission & distribution network, or the business, industry and residential consumers of the gas/fossil fuel).

This is why – at a minimum – there must be a moratorium on pipeline and fossil infrastructure approvals until these regulatory flaws are fixed.

2. There is a  “public interest” (see p.114) provision that Ray Cantor sold to the Green Mafia and Senator Smith as the solution to “fix” the Category One stream buffer loopholes and thereby dodge a legislative veto (they called it the “concurrent proposal” at the time) (June 20, 2016 proposal)

Obviously, it was a diversion, will not work, and did not address there real regulatory flaws. Cantor is good a duping dupes.

The same”public interest” deal that was negotiated and signed off on by the Green Mafia is now also included as a massive loophole in the environmental justice bill Gov. Murphy just signed into law.

That Zombie “public interest” provision does not close the loopholes in DEP stream encroachment (buffer) regulations. (see p.114 above link) and now it guts the EJ law.

That “public interest” provision the Green Mafia agreed to now serves as a massive loophole in the EJ law.

It allows DEP to over-ride a factual finding that pollution causes disproportionate burdens (which triggers mandatory permit denial) and instead issue the permit if it is in the “public interest” (it must be a “compelling” public interest, whatever that means).

As I recently wrote:

Worse, the DEP permit denial authority is destroyed by an “exception” – a huge loophole provision that allows DEP to waive the mandatory permit denial and issue the permit if a polluter claims that there is a “compelling public interest” for the industry or facility seeking the permit, even if there are disproportionate and unjust impacts.

There is gross incompetence and political cowardice in some quarters of the environmental community.

It is astonishing that these same useful idiots were able to sabotage the C1 buffer rollback legislative veto and years later insert a Trojan horse in the environmental justice law.  That just proves there are no consequences for incompetence and no accountability for lying.

3. I failed to note that environmental groups Pinelands Preservation Alliance and Sierra Club quietly met with DEP on September 8 and their lawyers wrote a “please, pretty please, do the right thing” followup letter on October 2, 202o.

Stunningly, that letter failed to even mention the above applicable flawed DEP regulations – which govern the pipeline and strictly limit DEP’s powers – or demand that these regulations be revised. WTF?

Instead, they focused on what amount to legal platitudes, closing with this nothing burger:

How can something like this happen (when the lawyers had the DEP suspension documents so knew what regulations applied?) ~~~ end]

Vague Aspirations, No Specific Policy Commitments, Actual CMP Amendments Postponed Indefinitely

Abdicating Leadership, The Commission Bows To BPU and DEP Lead On Climate Policy And Program

Looks like my controversial snarky and frustrated foray into “Fake News” has become a reality!

We’ve been pounding this issue for a long time, see:

• Climate Change Already Impacting Pinelands Forests (2013)
• Will Climate Change Destroy The Pinelands?
• Pinelands Commission Lawyer Claims Agency Lacks Power To Consider Climate Change In Review of $500 Million Fossil Infrastructure Project
• Review of Pinelands Gas Pipeline And New Power Plant Fails to Consider Climate Change Impacts
• A Climate Agenda For The Pinelands

After over a decade of demands for climate action by the public – including bruising battles over fossil infrastructure pipelines – the Pinelands Commission will consider a Resolution (see Draft Resolution) to address climate change at their next meeting scheduled for Friday December 11, 2020. (see correction)

[Correction – I was working off the Commission’s October Management Report, which I received today. The dates are wrong. Here’s the accurate info from the Pinelands Commission:(my emphasis)

That resolution was actually passed at our meeting last week; it’s not a draft. It recognizes the science behind climate change and directs the Climate Committee (LUCIS Committee) to develop climate mitigation amendments to the CMP, among other things, so now the real work comes. Your comments can now be used in that amendment drafting process, and I’m grateful to have your input.

It’s been a long time coming (and Executive Director Wittenberg actually tried to derail it).

As I wrote most recently, over 6 years ago, the Pinelands Commission, in The Fourth Progress Report on Plan Implementation (September 2014), first directed staff to develop climate policies and amend the Comprehensive Management Plan (CMP) to address climate risks and impacts. (see Action Plan Table on p. 166):

The Commission will evaluate what options are available to address climate change through the CMP and in cooperation with other agencies.

In that post, I reiterated a broad climate policy framework for the Commission:

There are many things the Pinelands Commission could do to address climate change, including:

1) establish and fund phenology, forest management, climate impact science, and monitoring programs, including incorporating climate driven rainfall/drought into their similarly long delayed and seemingly stalled “Kirkwood-Cohansey” project on restricting water allocation to protect ecological functions and ecosystems;

2) mandate and promote energy conservation, energy efficiency, renewables (including installation of EV charging stations, public transport, bicycles, and zero carbon development), and distributed publicly owned local power, micro-grids, etc – including requirements for new development applications and to retrofit of existing development;

3) prohibit new fossil infrastructure, like pipelines and power plants, and phase out existing fossil infrastructure, including ecological restoration of disturbance associated with that infrastructure;

4) regulate greenhouse gas emissions, including mandatory offset and mitigation requirements and net zero development;

5) establish a pro-active adaptation program (not just reactive fire suppression).

Call it a Green New Deal for the Pinelands!

Unfortunately, the Commission’s Draft Resolution does not do any of that.

There are no binding schedules or timetables for adopting necessary amendments to the Pinelands Comprehensive Management Plan (CMP).

There are no specific greenhouse gas emission reduction goals snd timetables.

There are no specific research, monitoring, policy, planning, program, staff, or funding elements or commitments.

On the positive side, the draft Resolution does build scientific and legal/regulatory bridges (in legal jargon, a “nexus”) between climate and the Commission’s regulatory jurisdiction under the Pinelands Protection Act and the provisions of the CMP: (emphases mine)

WHEREAS, these measures have not only protected the Pinelands ecosystem but have significantly benefited air and water quality, while protecting agricultural lands and vast wildfire-prone forests that serve to sequester carbon in the entire region when properly managed; and

WHEREAS, wetlands comprise approximately one-third of the Pinelands, and they play a critical role in filtering sediments, pollutants and nutrients from water, while also capturing and storing carbon, providing a buffer against sea level rise, and reducing the impacts of flooding and droughts;

Recall that Commission legal Counsel Stacy Roth and ED Wittenbeg denied that this jurisdiction existed. So, there is some progress on this important and fundamental issue.

But the way the Resolution is drafted raises other problems.

For example, there is no specific and direct linkage between climate and energy policy, energy infrastructure (like pipelines), and building and construction standards and practices, which are currently addressed under the CMP.

This lack of detail undermines the Commission’s ability to establish critical energy efficiency, renewable energy, electrification, and zero carbon standards and technologies. It weakens the Commission’s ability to discourage and/or phrase out fossil infrastructure, to impose retrofit requirements, and to impose CMP standards and conditions on land use and development approvals that greenhouse gas emissions are offset.

The forest related Whereas clause opens the door to destructive forest management and “forest stewardship” logging practices that actually increase carbon emissions and reduce carbon sequestration. Forests, just like wetlands, naturally store/sequester carbon without any active management (note that the wetlands whereas does not include the “properly managed” clause).

Here are the highlights of what the Commission Resolution would do. (Resolved): (emphases mine)

[1. – 2.]

3. The Pinelands Commission further acknowledges that substantial and sustained reductions in greenhouse gas emissions are required, together with adaptation measures, to limit the risks of climate change.

[4. – 7.]

8. The Pinelands Commission shall evaluate all proposed CMP amendments in terms of their potential impacts on greenhouse gas emissions and shall seek to include measures that will mitigate adverse impacts on the Pinelands environment.

What are “sustained reductions in greenhouse gas emissions”? What agency and what specific regulations “requires” those reductions?

No numeric greenhouse gas emission reduction goal is stated (in #3) and no timetable to achieve those reductions are specified and no regulatory  agency is assigned responsibility.

It also appears that the scope of the climate review (#8) is limited to future “proposed CMP amendments”, not the current provisions of the CMP. This must be redrafted and clarified.

It also appears that the review is limited in scope to “mitigate adverse impact” – as opposed to reducing greenhouse gas emissions, phasing out fossil, and transitioning to a 100% renewable energy system.

That confused conflation of greenhouse gas emissions reduction (sometimes referred to as “mitigation”) and traditional impact mitigation is present throughout the draft Resolution and really needs to be re-written.

The climate emergency is more than a threat – there are actual current adverse impacts on the Pinelands resources right now. This whereas should be revised to make that clear:

WHEREAS, the Pinelands Commission acknowledges there is ample scientific evidence documenting that climate change poses a new and severe threat to the Pinelands environment;

Finally, the Commission would defer to DEP and BPU and other state agencies on the substance of the statewide climate and energy policy:

5. The LUCIS Committee shall coordinate with the New Jersey Department of Environmental Protection, the Board of Public Utilities and other state agencies and departments on their efforts to mitigate the impacts of climate change in New Jersey.

This “coordinating” role contradicts the Commission’s role under the Pinelands Protection Act (Act) and conflicts with decades of leadership.

The Act authorizes and directs the Pinelands Commission to protect the Pinelands and adopt a CMP with standards that are more stringent than those adopted by other state agencies.

Most of the Pinelands’s CMP environmental and land use standards are far more stringent than the DEP’s statewide standards.

The Commission must not abdicate its statutory leadership role.

I urge readers to contact the Pinelands Commission and strongly urge that they strengthen the draft Resolution to address the significant flaws I outline above (and more!)

It’s taken so long to get here, better to do it right, redraft the Resolution, and delay another month.