WolfeNotes.com

We do not want to repeat the flood hazard rule debacle

[Update below]

I recently urged environmentalists – here at Wolfenotes and via email – to renew their apparently stalled efforts to block the adoption of the Christie DEP’s proposed rollback of the Highlands rules, in light of the USGS’s rejection of a data quality complaint.

I heard nothing back.

So, I looked into the status of the Legislature’s attempts to block the proposal as “inconsistent with legislative intent”.

I urged Legislators to do so and laid out the justification in a May 20, 2016 post, see:

• Sponsors of Highlands Act Urged to Veto Christie DEP Proposed Rollback of Groundwater Protection As “Inconsistent with Legislative Intent”

The Assembly subsequently introduced ACR192 (McKeon) a month later on June 20, 2016 and it was approved by the full Assembly by a 48-24-4 vote, way back on December 19, 2016.

The Senate has an identical Resolution SCR148 (Smith), but has not acted on it. Stalled.

I suspect that this is another Sweeney special: see: 

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

Or the Senate Environment Committee Chair Bob Smith may be acting solo, given the debacle on the failed attempted legislative veto of the DEP stream encroachment (Flood Hazard) rules, or as a bargaining chip in his various negotiations with the Christie DEP (e.g. coastal, public access, budget, et al).

Maybe some intrepid reporter out there might want to find out what’s holding the Senate back and the environmentalists might want to put a little public heat on Senate President Sweeney and Environmental Committee Chairman Smith.

We do not want to repeat the flood hazard rule debacle.

[Update – gee wiz, maybe this could explain the crickets?

• MURPHY GETS GREEN THUMBS-UP FROM NJ CONSERVATION VOTERS

BTW, does Murphy know that Kelly Mooij at NJ Audubon partners with Donald Trump?

Is Murphy OK with that?

USGS Paves Way for Gov. Christie’s DEP Rollback of Highlands Water Protections

US Dept. off Interior – home of USGS

In NJ’s first official taste of the Trump administration’s environmental science policy, on Friday (2/10/17), the United States Geological Survey (USGS) by letter denied a federal Data Quality Act complaint filed by NJ PEER almost a year ago, back on May 18, 2016. (read the PEER complaint)

While noting that the NJ DEP “third party” data USGS relied upon did not meet federal USGS standards, USGS nonetheless found that efforts to make this fact transparent in the text of the Report was an adequate response.

With respect to the flawed DEP data – although inconsistent with USGS’s own data quality standards – USGS “found the data to be of sufficient quality to meet the needs of the study.”

The USGS decision removes a key scientific challenge to the Christie DEP’s regulatory proposal and thereby effectively green-lights the Christie DEP’s proposed rollback of core clean water protections mandated by the 2004 NJ Highlands Act.

In light of the USGS decision, we can expect the DEP proposal to be adopted soon. Highlands defenders must renew their pressure on DEP and demand that the proposal be abandoned.

The USGS decision is presented below. The decision was months overdue. The USGS provided no explanation for the lengthy delay.

The timing of the USGS decision – after many months of delay and just weeks into the Trump administration – is troubling.

During the Presidential campaign, candidate Trump repeatedly criticized environmental regulations and designated NJ Gov. Christie as head of his Transition Team.

In Trump’s first weeks in office – just like his advisor Gov. Christie – Trump issued sweeping Executive Orders to rollback environmental regulatory protections. He directed the US Army Corps of Engineers to reverse the Obama Dakota Access pipeline environmental review process and ordered the State Department to reconsider the Keystone XL pipeline. Trump has pledged to abandon the Paris Climate Accords and withdraw EPA’s Clean Power Plan. He nominated Scott Pruitt, who has sued EPA 14 times and advocated for the oil and gas industry, to head EPA. The head of Trump’s EPA Transition Team threatened to abolish EPA.

All of Trump’s radical anti-environmental policies have virtually identical precedents in NJ under Gov. Christie and his DEP Commissioner Bob Martin.

Potential Grounds For Appeal

The USGS allows for appeals – here are some flaws in the decision that we may appeal:

1. USGS directly contradicts NJ DEP about data limitations and lack of QA/QC 

The NJ DEP issued 3 technical Reports that noted significant limitations and flaws with the Private Well Testing Act data upon which the USGS study is based.

Specially, regarding QA/QC, a DEP Division of Science and Research report “The New Jersey Private Well Testing Act: An Overview (April 2009) stated this conclusion: (emphases mine)

The quality of NJDEP’s PWTA database is adversely affected to an unknown extent by several factors. There is no agency responsible for verifying that the data from all real estate transactions (sales and leases) subject to the PWTA are reported to the NJDEP. Therefore, some data is likely missing. Some data that were initially  rejected by the E2/COMPASS quality control system were not resubmitted, despite NJDEP efforts to have these data resubmitted. One laboratory failed to submit data over a 3-year period, although this is believed to be an isolated case.

There are errors in the reported data as well. The PWTA relies on the sampling and testing laboratories for proper conduct of sampling, testing, and data accuracy. As previously stated, all laboratories performing PWTA analysis must be certified. That is, they are required to successfully complete periodic performance evaluations. Certification presumably reduces sampling and analysis errors. Nevertheless, there is no ongoing quality control of the data, either following sample collection, during or after testing, or in reporting results to the client or during electronic entry to the NJDEP database. It is not known how many errors exist in the non-location aspects of the data.

The USGS decision failed to even mention the DEP data limitations and flat out contradicted DEP’s QA/QC conclusion, by stating:

The PWTA data is subjected to QA/QC control and review.

DEP says there was no QA/QC – USGS says there was. Which is accurate?

2. The USGS decision responded to criticism by pointing the finger at DEP and/or the Highlands Council.

USGS fails to take responsibility for fatal flaws in the study design that create conflicts with existing law, regulation and policy.

Specifically, we noted several flaws with the USGS study design and methodology that created bias and conflicted with NJ law.

USGS rejected that by blaming NJ DEP, the Highlands Council. For example, in responding to criticism about using non-representative data outside the Preservation Area, USGS blamed DEP:

The area of study was defined by our agreement with DEP.

In response to criticism of bias in the statistical method, USGS again pointed the finger:

Selection of median values for use in the study was a decision made by the Highlands Council, not the USGS. 

Furthermore, USGS claimed (correctly) that USGS is not subject to state law, but that surely is no excuse or justification for conducting a study that knowing conflicts with State law and ignores the legislative standard to prevent degradation of groundwater and base decisions on natural background conditions:

USGS, as a Federal Agency, is not subject to State regulations. USGS’ research standards are independent of, and not subject to, New Jersey state laws.

In addition to the flat out contradiction about QA/QC, USGS completely failed to note multiple flaws, errors and limitations that DEP found with the PWTA data (see this post for a summary of how the data were “riddled with errors”).

Below is the full text of the USGS decision.

More to follow after we have time for an in depth review and to consider our options and whether to appeal the decision.

Fossil infrastructure is highly vulnerable to direct actions

pipeline infrastructure “somewhere” in the Pinelands National Reserve

I can get up there and tell you that there are places in the Pinelands where we have many, many, many, many, many, many, miles of natural gas pipeline that has been put in – and we can go out and look at what the effects were of those. ~~~ Executive Director Nancy Wittenberg advising the Pinelands Commission, back in July 2013 (listen to recording @ time 11:26)

…

And that — that brings me to the second mode of civil disobedience. There’s a time when the operation of the machine becomes so odious, makes you so sick at heart that you can’t take part! You can’t even passively take part! And you’ve got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus — and you’ve got to make it stop! And you’ve got to indicate to the people who run it, to the people who own it — that unless you’re free the machine will be prevented from working at all!! ~~~ Mario Savio (watch on YouTube – read his full statement)

In the wake of Superstorm Sandy, the public learned what had long been kept secret and ignored by industry and government officials: damage assessments found that the electric utility infrastructure was highly vulnerable to flooding, sea level rise, and storm surge. Dozens of electrical substations were located in flood prone areas and knocked out. As a result of this failure to address known vulnerabilities, hundreds of thousands of people lost power for almost a week, or more.

[Update: 2/14/17 – here’s another warning on infrastructure vulnerability that was ignored:

Oroville Dam: Feds and state officials ignored… ~~~ end update]

Similarly, in the wake of direct action by brave climate activists, another huge energy infrastructure vulnerability has become apparent: (read the whole story):

Climate Activist Escapes Conviction in Action That Shut Down 5 Pipelines

Climate activist Ken Ward eluded conviction on multiple criminal charges for shutting off an emergency valve for Kinder Morgan’s Trans Mountain oil sands pipeline last October after a county court in Washington declared a mistrial.

Following three days of trial in Washington’s Skagit County Superior Court, the jury deliberated Ward’s fate for about five hours before failing to unanimously agree to convict him of sabotage, burglary and two counts of felony. Skagit County deputy prosecutor Sloan Johnson is expected to announce his decision about whether to retry Ward in the coming weeks.

Ward’s trial, which began on Monday, was the first for the five activists that were charged for helping to shut off emergency valves of five oil sands pipelines across four states on Oct. 11. Ward and his colleagues, who call themselves “ValveTurners,” filmed their coordinated acts of civil disobedience, which resulted in the temporary shutdown of segments of five pipelines: the Trans Mountain, Enbridge’s Line 4 and 67, TransCanada’s Keystone and Spectra Energy’s Express Pipeline.

The remote locations and huge number of these pipeline infrastructures and the ease of shutting them down makes them highly vulnerable.

South Jersey Gas Co. has a very different view on vulnerability:

Direct action? Doesn’t that mean people chaining themselves to trees and so on?Well, maybe. “People I have talked to are very willing to get involved in a direct-action campaign of putting themselves in the way of the construction crews,” he said. “I think it’s time to think about taking different tactics if the ones we’re using aren’t working.” ~~~ NJ Spotlight 2/8/17

We’ll leave it at that.

Another inappropriate venue at the wrong time

The Commission may think that they are tamping down public anger, when in fact their failure to hold a formal “public hearing” – in the traditional evening hours – and conduct an adequate environmental review of the pipelines is stoking even more protest and opposition.

Once again, the Pinelands Commission – the gang that can’t shoot straight – has engaged in a last minute bait and switch on a controversial pipeline meeting schedule and location.

Yesterday afternoon, about 3 hours after I posted on their earlier morning meeting, the Pinelands Commission issued a Public Notice cancelling the scheduled February 10 meeting at Commission HQ and rescheduling it on February 24:

No progress on climate change or Ecological limits on water use

Corporate pipeline companies subsidized

Gov. Christie’s Office still blocking reforms

South Jersey Gas pipeline station – “somewhere” in the Pinelands

[Update below – 2/10/17 meeting rescheduled!]

The Pinelands Commission’s Personnel and Budget Committee met briefly this morning (see this for agenda and information). Note that the agenda also included a briefing on “application fees update”.

So I thought it was a good opportunity to talk about staff shortfalls, management problems, and lack of adequate budget/resources, particularly as they relate to:

1) a severe staff shortfall (22 vacant, un-budgeted positions); and

2) extensive delays in vitally important work that’s not getting done, like climate change and amendments to the Comprehensive Management Plan to implement the Commission’s Kirkwood-Cohansey study.

The Pinelands Commission has been bogged down in controversial pipeline debates for almost 4 years now. During that time, they have invested considerable staff time in reviewing pipeline applications and responding to public concerns.

During that four year period, crucial work is not getting done, including these priorities I suggested that they focus on last year:

1. Rescind delegation of power to the Executive Director to make unilateral decisions on major issues

2. Impose a moratorium on review of fossil infrastructure until a climate & energy  policy is adopted in the CMP

3. Restrict water use to protect ecosystems – implement the long delayed Kirkwood-Cohansey Study

4. Amend the CMP to adopt a map where motorized vehicles are prohibited

5. Put teeth in the new MOA policy by adopting standards to define equivalent protection – codify in CMP

I want to briefly update folks about what went on this morning with respect to items #3 and #5, including an important new issue that emerged about whether the Commission collects application fees to fully recover their oversight costs.

No action on climate change

Regarding climate change, the Commission pledged, in the Fourth Progress Report on Plan Implementation (September 2014:

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

Today, in response to my concerns about a lack of progress on the climate front, Executive Director Wittenberg admitted that nothing was getting done on climate (or energy).

That is particularly unacceptable, given another record warm year and mild winter, which is sure to have ecological impacts on Pinelands forests and aquatic ecosystems. 

That lack of progress is deep troubling, especially given that on November 18, 2015, State Climatologist Robinson briefed the Commission staff and the public on climate change issues as part of the Commission’s science program series. That meeting stimulated positive discussions about exploring how the Commission’s science program and Rutgers’ climate programs could work together to develop climate impact monitoring in the Pinelands, see:

• Exploring NJ Climate Variability and Change

Extensive delays and little progress in setting ecologically based limits on water use

Regarding amendments to the CMP to implement the Kirkwood-Cohansey study. Wittenberg said work was getting done, but very slowly.

My guess is that the delay is a result of Gov. Christie’s anti-regulatory policy and the political power of the builders, more than a lack of staff.

Gas corporations subsidized, despite massive budget shortfalls

I then asked the Commission, given budget shortfalls and 22 unfunded positions, two key questions:

1) what was the Commission’s application review fee policy with respect to recovering 100% of the Commission’s costs of reviewing the South Jersey Gas and NJ Natural Gas pipeline applications?

2) Did the Commission have an estimate of the total costs of those application reviews, actual application fees received from SJG and NJNG, and whether subsidies were being provided to SJG and NJNG?

Wittenberg replied that the Commission does not seek to recover 100% of staff review costs in application fees.

Wittenberg noted that a CMP amendment draft rule proposal was submitted to the Gov. Christie’s Office to increase current application fees to recover just 75% of review costs. The Gov. Office has not approved that draft proposal. (recall that Christie vindictively vetoed the minutes to block an approved staff raise).

I previously wrote about how the Gov.’s Office was blocking Commission CMP amendments, and violating rule-making procedures of the NJ Administrative Procedure Act. The Commission is not legally required to seek the Gov. approval before proposing a CMP amendment – this is another abuse of Christie’s Executive power.

Wittenberg had no data or estimate of total staff review (hours or costs) and related Commission costs of the review of SJG and NJNG pipeline applications, and simply refused to respond to my questions about subsidies.

So, at a time when the Commission has a bare bones budget, 22 unfilled professional science and technical positions, and is making little or no progress on critical issues due, in part, to a lack of staff and resources, I find it outrageous that deep pocketed corporate polluters like South Jersey Gas and NJ Natural Gas are being subsidized by the Commission’s budget and taxpayer money. 

Finally, I complained about the fact that the Commission has spent over $62,000 on labor lawyers to respond to workplace employee disputes. I noted that this was another sign of management problems that needed to be resolved.

The Commissioners were generally supportive of my concerns, but made no effort to direct Wittenberg to respond to them or otherwise take any action, as a Commission, to address them.

The full Commission next meets on *****Friday, February 10 at 9:30 am at Commission HQ- be there and be sure they do not rubber stamp the SJG pipeline! (*****NOTE: about 3 hours after this was posted, the Pinelands Commission rescheduled, see below:

[*****Update: Notice

The Pinelands Commission’s regular meeting, originally scheduled for Friday, February 10, 2017 at 9:30 a.m., has been canceled and rescheduled for Friday, February 24, 2017 at 9:30 a.m.  The meeting will be held at the Crowne Plaza Philadelphia-Cherry Hill in the Grand Ballroom. The address for the Crowne Plaza is 2349 West Marlton Pike, Cherry Hill, New Jersey.

The Pinelands Commission’s Policy and Implementation Committee meeting, originally scheduled for February 24th, has been canceled and rescheduled for Friday, March 10, 2017 at 9:30 a.m. This meeting will be held at the Commission’s offices at 15 Springfield Road, New Lisbon, New Jersey. In order to accommodate the rescheduled Policy and Implementation Committee meeting, the Commission’s regular meeting scheduled for March 10, 2017 has been canceled.