WolfeNotes.com

Why are Democratic legislators attacking a Christie DEP regulation as “burdensome”?

Should a Maine based company that installs septic systems be able to convince the legislature to pass a bill that would over-ride a specific DEP regulation and open the NJ market to their technology and the company’s installers?

Should that Maine company parachute into NJ and – with virtually no public debate or environmental analysis – be able to get in front of very long lines in the legislature and DEP of those seeking changes to environmental laws and regulations?

Should that Maine septic company be granted market access in NJ, to the detriment of existing NJ based companies and professional engineers who currently do that work?

Should Democrats in the Legislature correct a problem created by Christie DEP regulations, under the guise of removing “burdensome” regulation?

Well, that’s exactly just what happened today, as the Senate Environment Committee approved a bill, S2914 (Greenstein – D, Mercer):

This bill would prohibit the Department of Environment Protection (DEP) from imposing certain certification requirements … the additional credential requirements for installation are inappropriate and burdensome for small businesses.

I testified in opposition to the bill on principle as violating separation of powers doctrine because the Legislature was trampling on the Executive’s regulatory role, in the absence of any substantive or factual legislative record or a demonstration that the bill’s proponents had exhausted multiple opportunities for a regulatory remedy by DEP.

The bill is a terrible precedent that could open the floodgates to many regulated industries seeking regulatory relief via special legislation – the very essence of pay to play.

Those floodgates are already wide open in Washington DC as the Trump Administration and Republicans in Congress are seeking to dismantle “the administrative state”, and environmental regulation in particular.

Why would NJ Democrats want to go there?

I also questioned whether allowing this company and technology and installers into the NJ market would impact the environmental performance or homeowner costs of septic systems.

Things got very animated after the bill’s proponent – a spokesman for a company from Maine –  interrupted my testimony to ask who I was!

Listen to the testimony – hit the link to “view or listen to prior testimony”.

I got some pushback from Chairman Smith, who cited the recent legislative consideration of the Highlands Septic Density Standard. I had to remind him that there was a robust public regulatory process by DEP and that his Committee held a rigorous oversight hearing on that issue. The Legislature was proposing a veto of those rules under a specific veto provision of the Constitution approved by voter referendum, not broad legislative power to block a regulation on behalf of a single (out of state) company. In addition, testimony during that process revealed significant flaws and loopholes in current DEP septic regulations, suggesting that they needed to be strengthened, not over-ridden as “burdensome”.

After the hearing, I spoke with the Man from Maine. He shook my hand and said “no hard feelings” and in frustration complained that he had anticipated the problem with the DEP rules and hired a Trenton consulting firm back in 2012 and “spent a ton of money” on securing the relief under the bill.

That sounds a lot like pay to play to me. And special legislation too.

So I just sent the below follow-up testimony:

Dear Chairman Smith:

I’d like to clarify the record and supplement my testimony this morning on S2914 as follows:

1. Separation of powers

Separation of powers issues remain despite the amendment to make the bill identical to the Assembly version A4350[1R]

http://www.nj.gov/dep/workgroups/docs/septic-20161216-invite.pdf

The amendment states that the bill would become “inoperative” upon adoption of future DEP regulations. By definition, that means that the legislation would apply upon enactment in the absence of DEP rules and until the adoption of DEP rules.

As such, the legislation would target and over-rule a duly promulgated administrative regulation.

2. Special legislation

In addition to Constitutional separation of powers issues, based on the testimony today and lack of clarity from thee sponsor Senator Greenstein, the bill may suffer problems as a result of restrictions on special legislation.

The bill appears to apply to, benefit, and be based on the lobbying of a specific named individual company from Maine that installs a specific septic technology.

3. Role of DEP Office of Legislation

Senator Thompson defended the bill based on a lack of opposition from the DEP Office of Legislation.

For the record, I worked in the DEP Office of Legislation and Intergovernmental Affairs as a legislative analyst for 4 years (1990 – 1994). At that time, there were at least 8 professionals assigned to that Office. The Office served a policy role, representing the views of the Commissioner and/or the Governor’s Office.

In contrast, today, John Hazen is a virtual 1 man operation. The volume of bills has not decreased since then.

But even with a staff of 8, it was not unusual for a bill considered by a Committee to not undergo technical review by the DEP program impacted by the bill.

It was also not unusual for the Department’s position on a bill to over-ride the concerns of technical program staff, or be influenced by policy or political concerns. There were also cases where the DEP would stand down on a particular issue and let the Legislature take the policy lead.

Accordingly, lack of opposition by DEP Office of Legislation should not be interpreted as support for it or a lack of concerns with it.

4. DEP Septic Stakeholder process

The lobbyist for the Maine based septic installed stated that the DEP had conducted a “public process” regarding the relevant regulations.

Please be advised, as I stated during my testimony, that that claim is factually false.

Specifically, on December 16, 2016, DEP held a a stakeholder meeting regarding “Standards for Individual Subsurface Sewage Disposal Systems” regulation (N.J.A.C. 7:9A) See:

http://www.nj.gov/dep/workgroups/docs/septic-20161216-invite.pdf

That meeting was not “public”. It was “By invitation only”, see the following notice from DEP’s website:

12/16/2016 – Standards for Septic Systems Stakeholder Meeting- Invitation Only
December 16, 2016 11:00:00 am

Invitation (pdf)
Rule requirements for authorized septic installers, for discussion (pdf)

However, by removing a regulatory barrier and effectively open the market to this company and its technology, there could be significant implications with respect to protection of groundwater quality from septic discharge, should the bill be enacted into law. There were no facts entered into testimony today that addressed the environmental implications of the legislation or the environmental performance of the septic technology described.

I again urge you to abandon this bill. At best, DEP has made a technical regulatory blunder that should be remedied by DEP regulation, not special legislation.

Please include these comments in the record for the bill.

Respectfully,

We’ll keep you posted.

Toxic vapor intrusion, Catastrophic chemical release, and public involvement

Kuehne Chemical, Kearny, NJ. Accident would kill over 100,000 people. Note chemical industry “Responsible Care” PR logo. Is it responsible to pose this kind of fatal threat to 12 million people living in an urban area?

While you were enthralled with all those Trump tweets, a little known Trump Executive Order froze the  finalization of 30 EPA regulations, including those that impact NJ and protect against serious risks to public health and the environment.

The Trump Order is a virtual replay of Gov. Christie’s Executive Order #1 – which, just like Trump, was issued on the first day in office and froze “job killing red tape” regulations. Trump followed that first day Order up with another rollback initiative, again that is virtually identical to Gov. Christie’s Executive Order #2 and Executive Order #3. Even the slogans and the spin are the same.

Here is the Federal Register Notice that identifies the 30 rules impacted by the Trump Order:

SUMMARY:

In accordance with the Presidential directive as expressed in the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review,” this action temporarily delays until March 21, 2017, the effective date of the regulations listed in the table below. EPA identified 30 regulations that meet those criteria,

There are at least 3 EPA rules frozen with significant NJ implications.

I)  Vapor intrusion as a risk factor in Superfund listing

NJ has one of the largest individual vapor intrusion sites in the country, where the Dupont plant in Pompton Lakes poisoned groundwater that caused toxic chemical vapors to migrate into over 450 homes.

In addition, on a statewide level, NJ has not only the most Superfund sites, but the most dense population in the country and a legacy of over 6,000 contaminated groundwater sites where toxic vapors may be migrating into nearby occupied buildings and poisoning people.

That Dupont case became the poster child for why US EPA needed to revise the Superfund program to consider those risks when deciding whether to list a site on the Superfund National Priorities List. See:

• EPA Considers Adding Vapor Intrusion as a Risk Factor in Superfund Listing

See this for EPA Federal Register Notice:

SUMMARY: 

The U.S. Environmental Protection Agency (EPA) is adding a subsurface intrusion (SsI) component to the Hazard Ranking System (HRS), which is the principal mechanism that EPA uses to evaluate sites for placement on the National Priorities List (NPL). The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. Sites on the NPL are priorities for further investigation to determine if further response actions are warranted. The subsurface intrusion component (this addition) expands the number of available options for EPA and state and tribal organizations performing work on behalf of EPA to evaluate actual and potential threats to public health from releases of hazardous substances, pollutants, or contaminants. This addition enables EPA to directly consider human exposure to hazardous substances, pollutants, or contaminants that enter regularly occupied structures through subsurface intrusion in assessing a site’s relative risk, and thus, enable sites with subsurface intrusion contamination to be evaluated for placement on the NPL.

II)  Catastrophic Risks from accidents at deadly chemical plants

NJ has many “Bhopal” like facilities that store extremely hazardous chemicals where an accident or terror attack could kill thousands of people.

Former deceased NJ Senator Frank Lautenberg was a national leader in seeking protections from these risks – leadership Senator Corey Booker has not emulated.

According to EPA’s Federal Register notice:

The Environmental Protection Agency (EPA), in response to Executive Order 13650, is amending its Risk Management Program regulations. The revisions contain several changes to the accident prevention program requirements including an additional analysis of safer technology and alternatives as part of the process hazard analysis for some Program 3 processes, third-party audits and incident investigation root cause analysis for Program 2 and Program 3 processes; enhancements to the emergency preparedness requirements; increased public availability of chemical hazard information; and several other changes to certain regulatory definitions and data elements submitted in risk management plans. These amendments seek to improve chemical process safety, assist local emergency authorities in planning for and responding to accidents, and improve public awareness of chemical hazards at regulated sources.

Not. surprisingly, Executive Order 13650 (“Improving Chemical Facility Safety and Security“) was issued by President Obama and sought to strengthen protections. Trump/Pruitt see those protections as economic burdens on their corporate contributors.

(Update: Trump’s budget proposes to eliminate the Chemical Safety Board)

III)  Public involvement in permitting and enforcement actions

The people of NJ understand how important it is to participate in and pressure regulators to do the right thing. The rules of the game govern how that happens.

The community is often the last o know about toxic hazards in their community, as corporations work with regulators behind the scenes to conceal problems. Transparency and public involvement can prevent these kind of disasters.

EPA had proposed new rules to enhance public involvement:

Part 22 of Title 40 of the CFR establishes procedures governing administrative adjudicatory proceedings to assess administrative civil penalties, to issue various compliance orders, and to terminate or suspend certain permits. 40 CFR 22.1. These proceedings are conducted under a variety of environmental statutes, including the Clean Air Act, the Clean Water Act, the Solid Waste Disposal Act, and the Federal Insecticide, Fungicide, and Rodenticide Act, among others. Such cases are generally heard by the Administrative Law Judges (ALJs) within the EPA’s Office of Administrative Law Judges or Regional Judicial Officers. The part 22 regulations are titled the “Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, Issuance of Compliance or Corrective Action Orders, and the Revocation/Termination or Suspension of Permits” (“Rules of Practice”).

I don’t recall reading any NJ press coverage of any of this.

The media is repeating the negligent non-coverage of Gov. Christie’s regulatory policy.

When there’s a refinery blowout or a toxic train derails or a chemical plant blows up – or there’s an oil spill –  I’m sure we’ll get the 24×7 sensational coverage, but nothing about the underlying causes.

• Why Does Gov. Christie Get A Pass On Regulatory Policy?

Or maybe we can get some coverage when the freeze expires in the very near future.

The Christie freeze killed important rules protecting climate change and drinking water – including the perchlorate standard.

Let’s see how many rules Trump kills – he’s already killed several – and whether NJ’s Congressional delegation speaks out publicly and works to block them (hint Senator Booker!)

Warped priorities – obscene use of scarce public funds

flooding in Lambertville, NJ caused by Hurricane Irene (August 2011)

For several years now, various reports have warned about NJ’s multi-billion dollar infrastructure deficits, yet somehow, the Christie administration has refused to seriously acknowledge the magnitude of the problem, develop plans to address the problems, or support much needed new revenue sources (with the exception of the recent Transportation Trust deal).

As a result, our children are drinking unsafe water; schools, libraries, and local and State Parks facilities continue to crumble; highways, railroads, and bridges are obsolete or unsafe; trains and public transportation services deteriorate; and risks of disasters like dam failures, floods, droughts, water and sewer line breaks, power outages, Bhopal chemical disasters, bomb trains, ecological collapse, toxic algae blooms, ocean dead zones, urban heat islands and deadly heat waves, extreme weather, and climate catastrophe grow exponentially.

So, with this degree of negligence and these kinds of stakes involved, I was appalled to read a celebratory press release from the Christie DEP bragging about spending scarce public money to subside luxury shore boating:

DEP PREPARING PLANS TO DREDGE BOAT CHANNEL FOR LITTLE EGG INLET
PROJECT WILL ADDRESS SERIOUS SHOALING THAT JEOPARDIZES SAFE BOATING

(17/P15) TRENTON – The Department of Environmental Protection’s Division of Coastal Engineering is expediting a project that will clear dangerous shoals from Little Egg Inlet, a major thoroughfare for boat traffic between southern Long Beach Island and Brigantine to the south. The sand will be used to replenish beaches on portions of southern Long Beach Island lost to storms over the past several months.

At the direction of Commissioner Bob Martin, the Division of Coastal Engineering is developing permit applications, design plans and contract specifications with the expectation of going out to bid for the multimillion-dollar project next month. …

“This situation has become critical so we are moving forward, using state money, to dredge the channel and make it safe again for everyone who needs this vital access for fishing and recreation,” Commissioner Martin said. “We need to take action to get this channel dredged for the safety and enjoyment of the public this summer season.”

What the hell is wrong with these people?

How could they have such warped priorities?

NJ Legislators need to conduct oversight and find out exactly what “state money”, i.e. what legislatively appropriated source of public funds are being used by the NJ DEP on this project – and then PULL THE PLUG ON IT!.

A photo from Monmouth County of the affected pipe (source: Star Ledger)

End Note: Here is my letter to Chairs of Budget, appropriations and environmental committees (see this for contact info)

Dear Legislators:

I write to you as the leadership of Budget and Appropriations and Environmental committees regarding NJ DEP’s proposed use of scarce state funds to subsidize recreational boating.

The DEP announced this expenditure of “millions” of “state funds” in a press release issued yesterday, see:

DEP PREPARING PLANS TO DREDGE BOAT CHANNEL FOR LITTLE EGG INLET
PROJECT WILL ADDRESS SERIOUS SHOALING THAT JEOPARDIZES SAFE BOATING

http://www.nj.gov/dep/newsrel/2017/17_0015.htm

Surely, given our crumbling public infrastructure and competing risks and needs, this is a misallocation of scarce state funds.

I ask that you hold oversight to determine the legislatively appropriated source of state funds that DEP Commissioner Martin plans to use for this project and pull the plug on it.

For a more expansive analysis, see:

No Money for Crumbling Infrastructure or Climate Adaptation, But Christie DEP Using State Funds To Subsidize Luxury Boats

http://www.wolfenotes.com/2017/03/no-money-for-crumbling-infrastructure-but-christie-dep-using-state-funds-to-subsidize-luxury-boats/

I appreciate your timely, considered and favorable response.

DEP issued permits for NJ Natural Gas the same day Pinelands Commission OK’d SJG

Accelerating climate catastrophe ignored – again

We got a heads up on this last week from Agnes Marsala, head of People Over Pipelines, so we were not surprised by Dave Levinsky’s Burlington County Times report today:

New Jersey Natural Gas’ proposed gas pipeline through northern Burlington, Monmouth and Ocean counties has cleared another regulatory hurdle. … The permits were awarded Feb. 24…

The permits were received the same day the [Pinelands] commission approved construction of another pipeline through part of the Pinelands in Cape May County. That decision was blasted by environmental groups, who fear it might set a precedent for approving other pipelines like New Jersey Natural Gas’ Southern Reliability Link. …

“(Gov. Chris) Christie’s one-two attack on the environment delivered Friday, Feb. 24th, marks a desperate, end-game attempt to ram as much unnecessary, permanent fossil fuel infrastructure as possible through the Garden State before his term expires,” said Agnes Marsala, president of the group.

We told you that would happen:

NJ Natural Gas Pipeline Next In Line for the Christie – Wittenberg Rubber Stamp

The record setting Christie DEP press office – who has issued more press releases by far than any other – didn’t issue a press release. Not even a Friday afternoon dump.

Not only did DEP try to keep this quiet and under the radar, instead, when they knew the press was working on a pipeline story, they cynically put out a self serving diversionary smokescreen to create the appearance of protecting the Pinelands (see this). (this is a longstanding and shameless abuse, especially for climate related issues).

Like the South Jersey Gas pipeline, this NJNG pipeline also has a particularly corrupt regulatory history at BPU (see this and this), the Pinelands Commission, and the DEP. Lets look at DEP.

The Christie DEP not only bent the rules to approve this pipeline, remarkably, they actually changed the rules to make it easier for pipelines!

The DEP rolled back protections under the Flood Hazard Act (stream encroachment permits) to issue and essentially deregulate and privatize stream encroachment permits under what is called a “Permit by Rule” (see this for details:

• Christie DEP Set To Issue Controversial Compressor Station and Pinelands Pipeline Permits
• Christie DEP Finds That Pipelines Crossing Streams Have “No Impact” On Them

Keep in mind that the rollback of those stream encroachment rules weakened other critical protections for streams (see: The Case for a Legislative Veto) that apply statewide (and not only to pipelines).

The rollbacks made it cheaper for energy corporations to comply with rules, increased allowable disturbance and destruction of environmentally sensitive lands, reduced or eliminated mitigation requirements, made it easier for DEP to approve pipelines, and much harder for the public to challenge them.

Environmental groups mounted a strong opposition to the DEP rollbacks and Legislators promised to veto them. But that veto was abandoned.

So, folks need to criticize not only the Christie DEP, but Democratic legislators who failed to honor their pledge to veto those rules (see:

• Senator Sweeney Sells Out NJ’s “Exceptional Value” Streams and Rivers – Cuts Deal With Christie DEP To Avoid Veto

The regulatory game is rigged and the corruption is bi-partisan.

Hopefully, the courts will uphold the lawsuits that are certain to be filed by environmental groups.

As citizens, our only recourse at this point is protest, direct action, and civil disobedience.

Invisibles

As the world burns, progressives appear worn down in Waretown, NJ

Out in the cold – herded like sheep – NO SIGNS ALLOWED! (3/6/17, Watertown NJ Town Hall)

After scorching public criticism for failing to hold a face to face Town Hall meeting and accusing his constituents of being paid protesters seeking to “hijack” the process, Congressman MacArthur (R – NJ 3rd) was forced to concede. But note how the Congressman announced his Town Hall last night in Waretown:

Please note that no bags or signs will be permitted into the building and seating will be provided on a first come, first serve basis. Due to safety requirements, law enforcement officers will be in attendance and all personal items are subject to search. It should also be noted that your RSVP does not guarantee you entrance to the building.

Could that “no signs” be why the protesters were invisible? (if they were even there).

The “Indivisibles” were invisible.

But, since MacArthur is emphasizing chaos, disruption, hijackings, personal searches, and a police presence, are you scared yet?

Well if you’re not, consider how the Congressman’s partners – the NJ Second Amendment Society, who held their own meeting prior to the MacArthur Town Hall, so they got there early to get an unfair and over-representative share of the limited seating, which was allocated “on a first come, first serve (sic) basis” – organized for the meeting:

Congressman Tom MacArthur, the first and only NJ Congressman to support the National Concealed Carry Reciprocity Act (HR38) so far, will be holding a town hall event on Monday, March 6th 2017 in Waretown NJ and we need as many NJ2AS members and supporters there as possible. Especially if you’re in the 3rd Congressional District. He supported us when no one else would. Now it’s our turn to support him. As you may have seen on the news, town halls across the country have been raucous events full of bussed in members of the opposition sent there to harass their Congressman. We’re not going to let them outnumber us though. NJ2AS leadership will be there and we’re asking that hundreds of our supporters arrive to the townhall to be there inside and outside the event to let Tom AND the media know, that we support him and thank him for the actions he’s taken as member of the House of Representatives.

Now you should be terrified.

A national gun nut group has captured your Blue State Congressman and as a result we may soon have virtually unregulated concealed weapons in NJ (is stand your ground next?).

The White House has been captured by white supremacist, nationalists (Steve Bannon, Stephen Miller, and Jeff Sessions), Wall Street billionaires, former lying Exxon CEO (Tillerson), climate deniers, EPA dismantlers (Pruitt), and religious fundamentalists (DeVos) hell bent on privatizing and destroying public schools and using taxpayer money to promote a religious Agenda and “restore” a white “Christian America“.

And we now know that President Trump gets his alternative facts for his Tweets – e.g. the “last night in Sweden” and “Obama tapped Trump Tower phones” tweets – from right wing “alt-news” sites (NY Times):

The White House has not officially said what led Mr. Trump to make the claims. But administration officials have acknowledged that they were primarily prompted by unverified claims by Breitbart News and conservative talk radio hosts that secret warrants were issued.

Does Congressman MacArthur’s get his “alt-facts” from the Second Amendment Society?  That “bussed members” sent to harass their Congressman” sounds an awful lot like MacArthur’s original “hijack” claim:

Rep. Tom MacArthur says his town hall schedule is on hold because he doesn’t “want to be baited into having an event that some outside group can just make a spectacle out of.’’ …

MacArthur alleged that colleagues had their events disrupted as “hundreds of people have been bused in and have been organized and in some cases have even been paid to disrupt and to steal your voice.‘

“I think you have to realize what’s going on all over the country. Public town hall events are being hijacked by groups that are outside of the district that (the) member represents. You’ve seen them on TV.’’ he said.

Despite the fact that MacArthur’s claims were proven false, he still would not let go completely of that lie last night, when he said:

“I know there are not paid protestors here,” MacArthur said. “That doesn’t mean there are not paid organizers out there.” His statement was met with some groans from the crowd

 I was out there, as in outside in the cold. And not paid. I saw no organizers – period – paid or unpaid. I saw no protesters either.

Denouncing virtually everything I saw, here is my frustrated -and unattributed – “voice” (unattributed despite the fact that an * [Correction – it was an AP reporter. Apologies to APP] Asbury Park Press reporter approached me, knew my name (“you’re the former DEP official, right?“), and spoke with me):

Some of the people who stood by the front door for more than an hour in the cold eventually were let in. Before they were let in, at least one shouting match outside between a Trump supporter and a critic of the president could be heard from inside the fire hall.

The country is in crisis, as President Trump and the Republicans seek to dismantle virtually every progressive public policy victory over the last 100 years – even reversing Enlightenment reason and the Open Society – reforms in labor, environment, women, science, civil rights, gay rights, diversity, tolerance, immigration, the New Deal social safety net and “administrative state” etcetera – and the progressive community WAS INVISIBLE! (not “Indivisible”, invisible.)

They didn’t even show up! No protest signs (there were maybe 5 or 6), no protests, no buses, no singing, no marches, no disruptions – NOTHING.

And that is fucking pathetic.

(I know the Democrats – who talk a big “50 state strategy” but can’t seem to manage to organize opposition to a vulnerable freshman Republican Congressman in a predominant Blue State – avoid gun control debates like the plague, so I guess the Second Amendment folks scared them away.

But what about the rest of the “progressive coalition”?

I guess all those Foundation funded corporate environmental groups that flood my email inbox every day are just too busy to protest and lobby at a Town hall meeting – they’re just too busy promoting email, partnerships, sustainability, and golf outings, and pub crawls, and flower plantings, and safe Saturday afternoon permitted Washington DC marches.)