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No Money for Parks and Public Lands – While DEP Gives Away the Store to Gas Pipeline

Gas pipeline easement across public lands (D&R Canal State Park)

[Update 3 – 7/20/10: killer Star Ledger editorial: New Jersey taxpayers get shorted on gas pipeline]

[Update 2 – 7/6/10 NJ Spotlight coverage: State Spurns Proposed Gas Pipeline Lease, Citing Lowball Offer

[Update 1 below]

Yesterday’s Star Ledger reported:

The State House Commission stalled action today on a controversial gas line proposed for construction through state-owned forests and parks in northern New Jersey, as questions rose about the $45,000 Tennessee Gas Pipeline Co. will pay the state in a 24-year lease deal.

This reminded me that back in February, I wrote (again!) about serious financial mismanagement in the DEP Office fo Leases and Concessions.

I’ve been focused on DEP’s chronic failure to update state land leases and easements to reflect current market value, noting how outrageous these corporate subsidies are during a period of fiscal crisis and massive cuts to environmental programs (see: NJ Subsidizing Oil and Gas Pipelines That Cross State Lands)

Since then, I have harshly criticized DEP Commisssioner Bob Martin for his complete lack of environmental qualifications and government experience. However, I at least thought that the former corporate consultant understood economic leverage and had some business sense!

Well, as we discuss below, either Martin is incompetent, or he hasn’t used his business acumen to protect the economic interests of NJ taxpayers.

Similarly, I have repeatedly criticized Martin and Governor Christie for advocacy of cost benefit analysis as a policy tool. Yet, in the case of DEP leases, the public interest would benefit from the cost-benefit analysis policy of Christie’s Executive Order #2.

So what is the Tennesssee Gas Pipeline Project and just what went down in Trenton yesterday? Read on, as we lay it out.

Capitol, Trenton NJ

Under cover of a Friday 9 am hearing before the 4th of July holiday weekend and during an emergency legislative session called by Governor Christie, the State House Commission was poised to rubber stamp a dirty deal with corporate giant, Tennessee Gas Co.

The State House Commission is a little known or scrutinized entity that operates below the radar and often gives away public lands for development deals. It is difficult – if not impossible – for a citizen to be aware of their meetings, agenda items, or the details of proposed projects under consideration.

But yesterday, those barriers were overcome as I joined a group of activists whose testimony disclosed the terms of the deal, temporarily derailing the stealth effort.

The proposed Tennessee pipeline would cut through NJ’s most environmentally sensitive publicly owned lands – forested water supply watersheds and parks in the Highlands. According to Sierra Club:

This pipeline proposal will cut a 23-mile trench from one side of the Highlands to the other through dozens of state parks and one of the region’s most environmentally-sensitive areas, including the watersheds of North Jersey’s largest water supply reservoirs.

The Pequanock, Monksville and Wanaque reservoirs are where 2 ½ million people get their drinking water. This is only the first half of the project. It was stopped at Monksville because the company needs permission to go through a reservoir. The project will continue to cut through more public lands and environmentally-sensitive areas.

But the financial terms are even worse than the environmental destruction.

At a time of fiscal emergency, where the state should be turning over every rock to genenate revenues, the proposed DEP 24 year lease would compensate state taxpayers with only $45,000!

That amounts to just $1,875 per year. On a per acre basis (29 acres directly destroyed, with thousands more acres of adjacent forested lands adverely impacted), that comes to just $64.65 per acre per year!! (sounds like a better deal than BP Oil got for leases in the Gulf! – Updated)

Cynically, the 24 year term – for a pipeline with a 50+ year expected lifetime – was designed to avoid legally mandated public hearings for 25 year leases.

Assemblyman Joe Cryan (D-Union) criticizes pipeline lease

Assemblyman Cryan called the deal a “gift”, said it “shocked the conscience“, and that state taxpayers were “getting screwed”.

The Star Ledger story continued:

Calling it a rip-off, Assembly Majority Leader Joseph Cryan (D-Union), who sits on the commission, described the $45,000 lease as a “gift” to Tennessee Gas as it tries to complete a $2 billion pipeline that will extend 105 miles through Pennsylvania and 23 through New Jersey, crossing over several state-owned preserves and parks. His opposition prompted the commission, which must approve any lease arrangements on public lands, to postpone action for another 10 days.

The New Jersey Highlands Coalition, the state chapter of the Sierra Club and the Public Employees for Environmental Responsibility chided the deal at a Trenton meeting, contending the project will destroy sensitive and protected lands.

“The state is about to take a mere $45,000 for a 24-year lease agreement…and no one seems to be able to explain, defend or expose the methodology that was used to come up with that number,” said Bill Wolfe of PEER.

link to complete story:

The State House Commission will soon reconsider this project. We will keep you posted as events develop.

I’ve filed OPRA requests for the background documents and will soon be posting them and the draft mitigation list.

In the interim, contact the Governor and your legislators and let them know how you feel. The Highlands Coalition, NJ Conservation Foundation, and Sierra Club have details.

[Update: I want to make additional points to illustrate abuse of the public interest:

1. Environmentalists complained that there was no public participation in the project’s review. The project’s lobbyist testified to rebut that by claiming the project had undergone public review before the Highlands Council. But that was highly misleading, because the Highlands Council granted the project an exemption and the basic terms and documents supporting the deal, such as the lease, the land appraisal, and the mitigation plan are still not available for public review.

2. Environmentalists criticized a) significant adverse impacts impacts, some that were irreversible and/or could not be mitigated; b) the failure to consider alternative pipeline routes and competing projects by other pipeline companies; c) lack of detailed mitigation requirements; and d) linkage to the controversial Marcellus shale gas drilling project, significant portions of which are currently under a moratorium by the Delaware River Basin Commission.

Tennessee Gas and DEP’s testimony in response to these criticisms was highly misleading:

In response to criticism, Tennessee Gas testifies to defend pipeline project

a) Tennessee’s lobbyist testified that the project met the strict environmental requirements of the Highlands Plan. But that was simply flat out false because the project was found inconsistent with the Plan but not required to comply because it was granted a utility exemption;

b) there was no testimony to rebut this criticism because NJ lacks any planning or regulatory process to consider energy infrastructure planning, siting, impact, or alternatives analysis. Those fatal defects are not satisified by the Fedral Energy Regulatory Commission certification of need process;

c)  a draft punch list of mitigation requirements was provided by DEP to one environmentalist on the day before the hearing. This extremely limited review of a simple list of items, without any supporting documentation – is a far cry from public review of the merits of a detailed mitigation plan.

d) Tennessee’s lobbyist testified that the project was not necessarily linked to the Marcellus shale project, and that the pipeline’s capacity was spoken for by existing contracts for gas from non-Marcellus sources. This testimony contradicted the company’s own press release, as reported here

Last, and most absurd, is the after the fact DEP defense of the land appraisal that allegedly supports the $45,000 lease value. During the hearing, DEP could not explain, defend, or produce the appraisal. I testified that ther appraisal must be based on the economic value of the allowable use of the land (i.e for a gas pipeline). Star Ledger reporter Brian Murray asked DEP about this, to which, DEP claimed that:

the $45,000 lease price resulted from an independent appraisal that placed a low value on the land because most of it is in the Highlands preservation area, where development is restricted

That is obviously absurd – DEP and Tennessee can’t have it both ways: low land value because of development restrictions for purposes of appraisal, yet an intensive and highly profitable allowable use of that same land!!

how much is a utility easement worth?

[Update: Asbury Park Press set up story: Shore plans to be ready for BP oil – let’s hope Kirk Moore and Todd Bates really dig into the substance before and after the hearing. They know the shore and did a good job on the shellfish/oyster closure  program story.]

On Monday, the Asssembly Environment Committee will conduct oversight of DEP Commissioner Martin’s Plan to protect NJ from any impacts from the Gulf oil blowout (see announcement for details).

It is vital that the Committee engage in substantive oversight, and not political kabuki (we note for the record that Martin was never asked to respond to these Ten Questions or make commitments to performance Metrics he touts as the cornerstone of his private sector management orientation).

The Committee’s focus needs to be on 3 issues – let’s take them one by one (please hit the links for important information):

I) Content of the DEP’s prevention and response plans – better than BP and MMS efforts?

There was little content to the BP plan – and lots of what was there was flat out wrong (see PEER’s analysis).

As Grist wrote:

Oil companies are supposed to have spill-response plans prepared before they begin drilling in American offshore waters. Minerals Management Service safety regulators are supposed to scrutinize those plans before signing off on them. But it’s looking more and more like no one bothered to read BP’s backup plan before the Deepwater Horizon rig began drilling 5,000 feet below the ocean’s surface.

The nearly 600 pages of the “plan” consist largely of lists, phone numbers and blank forms, according to PEER Board Member Rick Steiner, a marine professor and conservationist who tracked the Exxon Valdez spill.

“This response plan is not worth the paper it is written on,” Steiner said in a prepared statement. “Incredibly, this voluminous document never once discusses how to stop a deep water blowout even though BP has significant deep water operations in the Gulf.”

Even if BP tried to craft a decent plan, all such contingency plans are basically “fantasy documents,” according to Rutgers sociologist Lee Clarke, who studies disasters. “These documents let everybody get through the day,” he told Grist. “They provide comfort that risks are under control. The plans are based on assumptions that you can control the uncontrollable, and the truth is there’s nothing much that can be done.”

If you read just one thing about the Gulf, you must read Rolling Stone magazine’s killer article on the factors that led to the Gulf blowout (see The Spill, The Scandal and the President) – this excerpt absolutely nails it:

It’s tempting to believe that the Gulf spill, like so many disasters inherited by Obama, was the fault of the Texas oilman who preceded him in office. But, though George W. Bush paved the way for the catastrophe, it was Obama who gave BP the green light to drill. “Bush owns eight years of the mess,” says Rep. Darrell Issa, a Republican from California. “But after more than a year on the job, Salazar owns it too.” […]

“The oil companies were running MMS during those years,” Bobby Maxwell, a former top auditor with the agency, told Rolling Stone last year. “Whatever they wanted, they got. Nothing was being enforced across the board at MMS.”

Salazar took over Interior in January 2009, vowing to restore the department’s “respect for scientific integrity.” He immediately traveled to MMS headquarters outside Denver and delivered a beat-down to staffers for their “blatant and criminal conflicts of interest and self-dealing” that had “set one of the worst examples of corruption and abuse in government.” Promising to “set the standard for reform,” Salazar declared, “The American people will know the Minerals Management Service as a defender of the taxpayer. You are the ones who will make special interests play by the rules.” Dressed in his trademark Stetson and bolo tie, Salazar boldly proclaimed, “There’s a new sheriff in town.”

Salazar was far less aggressive, however, when it came to making good on his promise to fix MMS. Though he criticized the actions of “a few rotten apples” at the agency, he left long-serving lackeys of the oil industry in charge. “The people that are ethically challenged are the career managers, the people who come up through the ranks,” says a marine biologist who left the agency over the way science was tampered with by top officials. “In order to get promoted at MMS, you better get invested in this pro-development oil culture.” One of the Bush-era managers whom Salazar left in place was John Goll, the agency’s director for Alaska. Shortly after, the Interior secretary announced a reorganization of MMS in the wake of the Gulf disaster, Goll called a staff meeting and served cake decorated with the words “Drill, baby, drill.”

“Employees describe being in Interior, not just MMS, but the other agencies as “the third Bush term,” says Jeff Ruch, executive director of Public Employees for Environmental Responsibility, which represents federal whistle-blowers. “They’re working for the same managers who are implementing the same policies. Why would you expect a different result?”

II) Parallels between the factors that led to BP’s gulf blowout and Christie regulatory policy.  

a) Lack of experience in leadership:

The New York Times reported that the head of MMS had no experience: Crisis Places Focus on Beleaguered Agency’s Chief

Before she took the job at the minerals agency , Ms. Birnbaum, 52, had virtually no experience with the oil and gas industry

We have written critically about the fact that Bob Martin has no environmental experience or acedemic or professional credentials (see: Burden on Christie DEP Nominee to Show Senate He’s Qualified).

b) Inadequate resources

DEP recently admitted they lacked adequate staff resources to protect shellfish beds. According to the June 7, 2010 Asbury Park Press: “DEP orders halt to oyster efforts”

The agency said its staffing problems are a big part of the issue” there are not enough conservation officers to adequately patrol the oyster sites. It’s a position that worries commercial shellfishermen too, because the federal Food and Drug Administration has already questioned if the DEP has adequate enforcement.

“The conservation groups and nonprofits have said, “We’ll put volunteers out there,’ but the FDA has basically said you need to have qualified, trained people,” said Lawrence Ragonese, a DEP spokesman. “The DEP is working to get more people and more patrols out there” just to keep the commercial industry covered, he said.

If DEP can’t monitor shellfish beds, how can they respond to a coast-wide disaster?

c) Culture of lax oversight and promotion of oil industry economics – “Agency Capture”

Commissioner Martin has repeatedly said DEP culture is “broken” and that DEP needs to embrace a less adversarial relationship with industry, promote economic development, and treat industry as “customers”. This can only lead to lax oversight and the same kind of cozy relationships that MMS had with BP. The pro-industry culture Martin seeks is deadly!

d) political pressures to expedite and waive environmental reviews – cutting corners to save industry money

e) weak regulations and enforcement

f) false perceptions that “red tape” environmental regulations impede economic development

For explanations of how the above factors d); e) and f) that led to the Gulf blowout are replicated right here in NJ under Governor Christie’s policies, read the Rolling Stone expose in light of the following:

1. Lessons of Gulf lost on Martin (May 25, 2010); Did Gulf Blowout Cloud Martin’s Vision? (June 3, 2010); and BP Got Environmental Waiver (May 6, 2010)

2. Executive Order #2 -“Common  Senese Principles” – specifically include new “waivers” to provide “regulatory relief“.

3. Red Tape Review Group Report (this Report was issued on April 29, ONE DAY before the Gulf blowout!).

4. DEP Transition Report: “DEP Must Do Less with Less” – less DEP oversight and more self monitoring by industry.

5. Martin Memo to DEP staff on the need to fix DEP’s “broken” culture (1/27/10)

At the same time, in the face of a collapsed economy, we need to play a key role in the economic growth of this State.

I want to empower decision making down through our chain of command and have all who come before us for service treated as valued customers.

6. Martin wants to create a “Customer” Culture (press release)

7. Martin’s emphasis of economics at DEP and a new DEP role to promote economic development

8. Christie budget slashed over $400 million of renewable energy funds (see this and this)

III) NJ’s risks and vulnerabilities from oil refineries and chemical plants.

NJ and surrounding NY Harbor and Delaware Bays have a large infrastructure of petrochemical facilities that present huge risks to the region’s dense population and sensitive environment. These facilities require strict regulatory oversight and credible response plans in the event of a catastrophic event – from fire, explosion, to terrorism. But, DEP oversight is eroding. For examples, see: The Fatal Fifteen.

Key components of chemical plant safety in NJ is voluntary (see NY Times coverage and this post).

The Legislature needs to conduct strict oversight of these serious threats to NJ’s environment, public safety, and economy.

Rigorous oversight is warranted, particularly in light of the lessons from the Gulf and the Christie deregulatory policy agenda.

NY Times reporter asks Jackson if EPA is “wimping out”

[5 Important Updates below]

Given the huge difference in effectiveness and the level of protection provided by these two RCRA alternatives (i.e. Subtitle C versus Subtitle D), EPA’s failure to propose Subtitle C requirements, the far more protective option – or at least include a preference for the more protective option – was a transparent abdication of their responsibility to protect the public.

Tim Wheeler of the Baltimore Sun writes an excellent overview of the reaction: EPA’s new coal-ash rules – a punt, or a feint?

To some, that looked like a copout. “EPA postpones decision that would toughen coal ash rules,” reads the headline on a story by Renee Schoof in the Kansas City Star. “EPA Caves on Coal Ash Regulation,” reads another, on an analysis by environmental blogger Bill Wolfe.  Industry lobbyist Frank Maisano also seemed to think the agency’s either-or proposal was simply a face-saving setup for going easy on ash regulation.

Over a year after EPA’s commitment to adopt regulations to reduce risks associated with coal power plant ash, today, US EPA Administrator Lisa Jackson announced a proposal that would be the first step towards regulation of coal combustion residue (see this for proposal).

Coal ash contains numerous toxic chemicals that are hazardous to public health and can poison the environment.

But instead of taking leadership and biting the bullet by proposing a strong national regulation based on science, Jackson caved in to the politically powerful coal lobby and dodged the fundamental issues.

EPA merely proposed for public comment two very different “alternative approaches”. EPA proposed regulation under either Subtitle C or Subtitle D of the Resource Conservation and Recover Act (RCRA).

[Jackson refused to commit to a schedule for making a decision or promulgating a final rule following the 90 day public comment period on the “alternative approaches”. Any final rule likely to take many months to a few years, and is likely to be weakened further by industry lobbying. What EPA proposed is years away from being actually implemented or changing the current unacceptably risky conditions on the ground.]

As anyone who has worked on these issues knows, these two RCRA programs are very different (even look at EPA’s side-by-side comparison).

Subtitle C is known as the “hazardous waste management” program. Subtitle C is overseen and enforced by EPA. Subtitle C provides far more protective management and disposal and “corrective action” (cleanup) requirements.

Regulating coal ash under Subtitle C would also result in the phase out of all surface impoundments, which are the worst management option because they pollute groundwater, surface water, and are structurally unsound and prone to massive failure. Subtitle C also would end or severely restrict current potentially dangerous, unmonitored, and unregulated so called “beneficial reuse” of toxic coal ash.

Subtitle D is designed to manage far less dangerous wastes, such as municipal trash. It is not enforceable by EPA but is either purely voluntary or a state level program. Some states, such as NJ, have fairly protective Subtitle D programs, but most do not. Regardless, Subtitle D requirements do not come close to Subtitle C requirements in terms of level of protection afforded. Subtitle D is just not the appropriate management scheme for the risks posed by coal ash.

Given the huge difference in effectiveness and the level of protection provided by these two RCRA alternatives, EPA’s failure to propose Subtitle C requirements, the far more protective option – or at least include a preference for the more protective option – was a transparent abdication of their responsibility to protect the public.

I listened in on the EPA press conference and was pleased that Jackson’s spin didn’t fool any reporters.

But reporters failed to note that the rule was signed by Jackson on April 10, 2010, just days after a West Virginia coal mine explosion killed 25 workers. (at least President Obama supported off shore oil drilling BEFORE the Gulf blowout! Talk about bad timing!)

Yet the proposal was just publicly released today. My guess on the timing is that EPA knew that this would be received as a total capitulation to coal interests and would be deeply unpopular in many places, particularly in the wake of the fatal coal mine explosion. So I suspect that EPA delayed release for a time when they could minimize public criticism – the oil spill disaster in the Gulf of Mexico provides exactly that kind of cover for Jackson to hide behind.

In fact, a NY Times reporter asked Jackson to respond to the likely concern that polluted communities and environmental groups would view the proposal as “wimping out by EPA“.

I couldn’t have said it better myself.

Other reporters asked tough questions about why EPA failed to prefer strict EPA enforceable regulations under what is known as “RCRA Subtitle C” (hazardous waste program) instead of the far weaker and not federally enforceable “RCRA Subtitle D” (solid waste).

Others asked about the role of Obama adviser Cass Sunstein, head of the Office and Management Budget Office of Information and Regulatory Affairs . EPA submitted a draft rule in October 2009 for Sunstein’s review. Some have said that he was pressuring EPA to weaken and delay the rule via OIRA’s regulatory review and cost benefit analysis.

EPA refused to answer questions about OIRA’s role and how the October version differed from today’s proposal (particularly about whether the October draft included an EPA preference). That silence basically confirms the suspicion that the EPA science was politically over-ruled by Obama’s OMB acting though OIRA based on economic considerations.

The rule is a response to the massive environmental disaster of December 2008 when a Tennessee Valley Authority power plant impoundment storing coal ash blew out, causing toxic devastation of over 300 acres of land and hundreds of millions of dollars in cleanup costs. As EPA noted in their press release:

The dangers associated with structurally unsafe coal ash impoundments came to national attention in 2008 when an impoundment holding disposed waste ash generated by the Tennessee Valley Authority broke open, creating a massive spill in Kingston that covered millions of cubic yards of land and river. The spill displaced residents, required hundreds of millions of dollars in cleanup costs and caused widespread environmental damage. Shortly afterwards, EPA began overseeing the cleanup, as well as investigating the structural integrity of impoundments where ash waste is stored.

But it is not only catastrophic failures of surface impoundments that are causing risks to public health and the environment.

The management and disposal of coal ash has long been a problem because of EPA’s failure to regulate it. As a result, soil, groundwater, and rivers are polluted by leaking landfills and impoundments.

The so called “recycling” or “beneficial reuse” of coal ash has raised concerns about unknown exposure when these toxic materials are reused in all sorts of potentially unsafe ways. I was disappointed by Jackson’s emphasis that EPA would continue to support these questionable practices, and shocked when Jackson claimed – without supporting data – that coal ash was

“only a problem when large amounts are disposed in unlined landfills (and impoundments)”

The EPA proposal states that EPA will continue to allow this loophole to persist, perpetuating errors of the past (including the huge loophole for so called “mine reclamation“):

EPA is not proposing to change the May 2000 Regulatory Determination for beneficially used CCRs, which are currently exempt from the hazardous waste regulations under Section 3001(b)(3)(A) of RCRA. However, EPA is clarifying this determination and seeking comment on potential refinements for certain beneficial uses. EPA is also not proposing to address the placement of CCRs in mines, or non-minefill uses of CCRs at coal mine sites in this action.

[End initial post]

Update 1: See this AP story. Looks like EPA is more concerned about stigmatizing the coal industry than protecting public health:

An EPA e-mail sent after Jackson’s comments said the agency was creating a “special waste” classification within the hazardous waste regulations, “to help remove the stigma that some believe attaches when a waste is called hazardous.”]

[Update 2 – The Wall Street Journal story nails the real issues – EPA choosing industry costs over public health (note, as is typical, there is no mention of the benefits, which EPA analysis showed exceeded costs by a factor of 4.3 – 5.2 times (benefits ranged from $35 – $102 billion, per a “senior EPA official” on the press call):

The EPA estimates the cost of the hazardous-waste and non-hazardous waste approaches at $20 billion and $8 billion, respectively. The EPA won’t actually refer to coal ash as hazardous under either approach. That’s because industry groups have raised concerns the terminology could hurt the reuse of the waste material in such products as cement and drywall.

The issue of coal-ash waste was the subject of 48 meetings since last fall between the staff of President Barack Obama’s regulatory czar, Cass Sunstein, and industry groups, environmental advocates and others. The EPA’s announcement Tuesday fueled the ongoing divide. A utility-industry group in a statement said regulation of coal ash as a non-hazardous waste alongside new federal standards for ash pond safety would be the only “prudent” course for the EPA.

“Adoption of more stringent regulation–including regulating coal combustion byproducts as hazardous waste or mandating closure of certain types of ash-management facilities–will drive up costs for our customers without providing a commensurate health or environmental benefit,” said Jim Roewer, executive director of the Utility Solid Waste Activities Group, in a statement.]

[Update 3 – I just checked out the cost-benefit analysis in the proposal itself – my above quote is accurate (Huge benefits, positive net benefits, and large benefit/cost ratio. And EPA admits that the benefits are much larger, because significant benefits were not calculated (*benefits of Sub C are far greater):

In addition, the RIA did not quantify or monetize several other additional benefits consisting of future avoided social costs associated with ecological and socio-economic damages. These include avoided damages to natural resources, damages to property and physical infrastructure, avoided litigation costs associated with such events, and reduction oftoxic chemical- contaminated effluent discharges from impoundments to surface waters ( see: Coal Combustion Residuals – Proposed Rule (PDF) @page 81)

[Update 4 – Tim Wheeler of the Baltimore Sun writes an excellent overview of the reaction: EPA’s new coal-ash rules – a punt, or a feint?

After the images of the TVA disaster faded from the news, though, industry pushed back against treating the ash as hazardous. It argued that such a label would choke off a growing recycling effort to market the ash as a cheap, safe ingredient in wallboard, concrete and other environmentally beneficial uses.

EPA Administrator Lisa Jackson said Tuesday that she didn’t buy that argument. Indeed, some have countered that stringent rules should boost reuse of ash by making it more costly to bury it. But on Tuesday, EPA proposed a dual approach, either requiring it be treated similar to hazardous waste or letting it be disposed of like other less toxic industrial waste. In a nod to industry, even under the more rigorous approach, ash wouldn’t be offically categorized as hazardous, but as a “special waste.”

To some, that looked like a copout. “EPA postpones decision that would toughen coal ash rules,” reads the headline on a story by Renee Schoof in the Kansas City Star. “EPA Caves on Coal Ash Regulation,” reads another, on an analysis by environmental blogger Bill Wolfe.  Industry lobbyist Frank Maisano also seemed to think the agency’s either-or proposal was simply a face-saving setup for going easy on ash regulation.

I want to note two important things that will occur, even if EPA chooses the tougher alternative they proposed: the “special waste” classification. Although this would significantly increase protections from current unregulated disposal at landfills and surface impounds, it would not provide the full range of protections afforded by Subtitle C hazardous waste. Second, special waste classification would increase the costs of disposal and therefore create economic incentives to increase so called “beneficial reuse”. Because EPA continues to promote unsafe “beneficial reuse” of this highly toxic waste in things like wallboard, the overall effect of “special waste” classification would be to GREATLY INCREASE widespread and uncontrolled, unmonitored distribution of this waste in the environment. This would INCREASE overall exposure and risks to human heath and environment. This is why EPA must enforce Subtitle C with strictly limited reuse, an option they didn’t even propose.

[Update 5 – Although in keeping with proper style they didn’t use the “W” (wimpy) word, the NY Times get it about right: E.P.A.’s Plan to Regulate Coal Ash Draws Criticism (but repeat the above distinction between “special” and “hazardous waste” classification, which the Times does not address, i.e. EPA didn’t defer the decision to treat it as hazardous waste, they abandoned it. There is more than semantics operating here. “Special waste” is under a completely different statutory provision of RCRA and regulatory regime)

The Environmental Protection Agency issued a long-awaited proposal Tuesday to regulate coal ash, the toxic byproduct of burning coal to produce power. But the agency deferred a decision on whether to treat it as hazardous waste, drawing criticism from environmentalists who had hoped for a stronger stance. … […]

Environmental groups said the disaster made clear the need for strict oversight.

“We are disappointed that the rule brings forward two dramatically different regulatory options”, Scott Slesinger, legislative director for the Natural Resources Defense Council, said in a statement. “We expect E.P.A. to choose the option that adequately protects the public, particularly our precious groundwater, and treats this hazardous waste as a hazardous waste.”

Lawyers for former Assemblyman Van Pelt (R-Ocean) – accused of bribery in the federal “Operation Bid Rig” sting – claim that everybody does it (See Asbury Park Press story: Van Pelt’s lawyer: Cash payments common in politics – Ex-lawmaker accused on pocketing $10G bribe

You know what: they just might be right.

And the tremendous irony here is that Van Pelt was investigated and indicted by former US Attorney Christie’s Office for accepting a bribe to engage in exactly the same practices that now Governor Christie is advancing via his “Red Tape Review Group”.

Van Pelt was allegedly bribed to expedite DEP CAFRA and wetlands permits to assist developers.

Yet expediting DEP permits to assist developers is exactly the policy found in Governor Christie’s Executive Orders # 1-4′s “common sense regulatory principles” (a slogan for “regulatory relief”), as well as the overwhelming focus of Chrisite’s Transition Team and Red Tape Group Reports.

After reading over 240 pages of the transcripts of the wired conversations this morning, I come to 3 basic conclusions:

1) While I was disgusted by the attitudes, ethics, and practices disclosed by the transcripts – and in no way want to defend Van Pelt – there sure is lots of room for “reasonable doubt” about any crimes. The prosecution provided incomplete transcripts. Prosecutors took several of the taped conversations out of context and omitted lots of discussion that supports Van Pelt’s claim that he was basically acting as an honest consultant to the developer. Van Pelt may be innocent – the transcripts show that the closest he comes to appearing corrupt are in Van Pelt’s assertions that he knows how to “work the channels” at DEP (Transcript @page 155); where he advised “don’t worry about the [DEP] permits” (@page 55); his promise of a “smooth ride” on expedited CAFRA permits (@page 155); and that he has “a pretty good relationship with a lot of people” at DEP (@page 204). But these assertions obviously could be interpreted in many different and non-criminal ways – e.g. merely seeking faster approval as opposed to cutting corners and violating DEP regulations. Plus, even I have some knowledge on how to “work the channels” and also have good relationships” with people at DEP;

2) the legal development system in NJ – commonly referred to as “pay-to-play” –  is totally corrupt; and

3) the reform agenda we proposed last July is more relevant than ever.

I strongly urge those interested in getting a sense of the Prosecutor’s selective use of the taped conversations, as well as the sweeping scope of the systemically corrupt lawful development process in NJ, to read the transcripts: Transcripts of Van Pelt conversations (.pdf)

I will merely highlight aspects of points #2 and 3 above to outline the scope and nature of the corruption involved, and illustrate why the reforms  we called for would be effective.

The tapes reveal a series of systemic abuses of the public interest allowed by NJ land use laws and environmental regulations. Thus a close reading provides a detailed road map to reform. Below are just a handful (top 10) of the many abuses disclosed in the tapes (with link to page numbers of the transcripts)

1. The CAFRA regulations invite abuse. The economic “incentives” and lack of necessary safeguards provided bv 80% impervious cover allowed in designated centers are so huge that they invite corruption. When developers can make that much money in one place, corruption is to be expected. So stronger safeguards obviously are needed. Instead, laws work to protect and invite corrupt practices.  (Transcript @p. 7 and again at page 224  – page 55)

2. The DEP CAFRA and wetlands permit programs were the focal point and major fear of the developer (@page 49 et al). Yet, both permit programs lack a set of effective safeguards to protect against the corrupt schemes of the developers illustrated in the transcripts. Abuses ranged from secret phone calls and meetings with DEP officials, lack of transparency, lack of disclosure, to lack of public access to DEP permit reviews. Again, the nature of the system invites abuse.

3. Van Pelt, the developer, and local officials hid behind lax laws, a passive media, and apathetic residents to conspire – Van Pelt bragged that maintaining a low profile was his MO (@page 98). Again, the system invites corruption.

4. The developer and Van Pelt openly discuss – as normal business and government practice – severe abuses of: local and state redevelopment laws; eminent domain; “sweeteners”, or local bargaining to obtain land use approvals (a new girls softball field, in this case); and gross financial subsidies (PILOTs, revenue bonds to finance a developers’ obligations to provide public infrastructure, et al).

5. The developer repeatedly expresses his frustration by requirements to obtain multiple DEP, DOT and other State approvals. The developer wanted to control things by bribing as few people he could trust as possible. Therefore, consolidation of permit requirements and a single point of contact in State government – as recommended by Governor Christie – would make it far easier for the developers to corrupt the system.

Thus, perversely, Christie’s “Red Tape” “one stop shopping” and environmental policies (e.g. expedite DEP permits, one stop shopping, “permit-by-rule, “general permits”, reduce or eliminate “pesky” public involvement, et al) actually will foster corruption.

6. Loopholes in the wetlands regulations (isolated wetlands – page 108) and the option for wetland mitigation invite abuse.

7. Lack of adequate DEP monitoring and mandatory soil sampling make idea that “clean fill” is free of contaminants a joke (@page 109-110).

8. Local officials and land use planning boards are easily duped by high glossy and tech presentations by developers (@page 112).

9. So called “Smart Growth” policies like pedestrian friendly, bike-ways, walkways et al are cynical selling points for developers to dupe local officials and secure local approvals, not real sustainable development practices. (@page 113)

10. The DEP policy to issue so called groundwater “Classification Exception Areas” (CEA’s) is a very bad policy. By issuing CEA’s at sites with severe soil and groundwater pollution, DEP invites abuse and wastes time and money by sending a false message that a site is clean, ready for development, and eligible for an “unrestricted use” “No Further Action” letter. (@page 116)

When will DEP’s CEA and flawed groundwater cleanup policy be examined? It is creating huge problems – for example, does anyone understand the relationships between CEA’s and off site migration of contaminated groundwater plumes and vapor intrusion to nearby properties? CEA’s allow delay – sometimes even let polluters off the hook for groundwater cleanup. CEA’s dramatically drive up cleanup costs and increase risks to human health and the environment.

Just ask parents in Newark’s Wilson Avenue School – highly contaminated groundwater forced evacuation and closure of that school because of “vapor intrusion” (dangerously high benzene levels in the school building). Seeking to dodge any responsibility, DEP and local officials said it was due to rainfall, that caused a high water table. Yet, the source of the problem is man made (DEP policy), not rainfall. Toxic polluters years ago convinced DEP not to enforce groundwater cleanup requirements in Newark area because there allegedly were no health risks. Polluters argued that the groundwater surrounding Newark is not used for drinking water and thus there is no human exposure and thus no risk. But they forgot about risk due to migration and vapor intrusion into buildings (as well as ecological harms from discharge into rivers/bays).

That’s another big “oops” that no one has called DEP on (yet!) – White suburban kids won protections, so why not Newark?

Glacier National Park

[Note: I shot all these photos in Glacier NP. The air is hazy due to many fires in the Rockies that summer.]

A superb must read Report by the Rocky Mountain Climate Organization brings really bad news (excerpts from Executive Summary of Report below – although the Report has wonderful photography, the photos are mine. The haze in some shots was due to forest fires in southern Rockies):

A loss of ice and snow in the park is likely.  Because of human-caused changes in our climate, Glacier could lose all or nearly all of its glaciers, which shaped the park and after which it is named.“ perhaps in the relatively near future. Seven years ago, scientists projected that even modestly hotter summers could eliminate by 2030 all glaciers in one basin in the park. Since this study was published, the glaciers in the basin have melted faster than projected. Now, one of the study’s authors believes they might be gone in just 10 years. According to an April 2010 update by the U.S. Geological Survey, of the 37 named glaciers in the park, only 25 remain large enough to still be considered glaciers. Of the 12 that have melted away, 11 have done so since 1966.

A hotter climate is also expected to reduce snowfall and snowpack accumulation in the park. One recent study projects that near the end of this century, peak snowpack levels in the park may be reached 41 days earlier than in mid-20th century, and that snow could cover the ground for about 70 fewer days a winter. With mountains not snow-capped as much or as long into the summer, the scenery that draws most visitors to Glacier would be affected.

A loss of water in the park in summer may result from higher temperatures, earlier snowmelt, and a loss of summer meltwater from glaciers, with widespread ecosystem effects. (See section 5.)

A loss of wildlife in Glacier could result fromhuman-caused climate change. (See section 6.) This could disrupt the unique mix of natural wildlife the park now supports, which offers Americans the best chance they have in the lower 48 states to see the full range of mammal predators present at the time of European settlement of the continent, including grizzly and black bears, wolves, lynx, wolverines, mountain lions, and more, as well as other large mammals including mountain goats, bighorn sheep, and elk. The park’s staff is concerned that climate change could lead to “wholesale changes in species composition.” One study suggests that Glacier could experience the second largest influx of new mammal species of eight studied national parks, as ecosystem changes could lead to new, warmer-environment species moving into the park. Wolverines and lynx are at particular risk in the park, as for both spring snow cover apparently is an essential habitat requirement. Grizzly bears, bighorn sheep, mountain goats, pikas, ptarmigan, and trout could also be harmed by changes in the climate.

A disruption of plant communities in the park also could take place. (See section 7.) Some forests in the park could be replaced by grasslands. Other forests could decline because of hotter, drier conditions. The park’s expanses of alpine tundra, meadows, and wildflowers, plus a rare cedar-hemlock ecosystem, could all be reduced. Infestations of insects such as mountain pine beetles could increase.

More wildfires are likely, leading to more campfire bans, closures of trails, and reduced visitation. (See section 8.)

A loss of fishing can result if high water temperatures stress trout enough to lead to fishing closures or to elimination of trout from certain streams. (See section 9.)

More downpours and flooding are likely to be caused by increases in extreme storms, which can result in closures of park areas and reduced visitation. (See section 10.)

The otherwise superb Report was polluted with this piece of “clean coal” garbage by NRDC:

Accelerating the development and deployment of emerging clean energy technologies to lower long-term emission reduction costs. That means incentives and investments in renewable electricity, lowcarbon fuels, and carbon capture and storage, including a federal renewable energy standard, as well as infrastructure upgrades to support transmission capacity for these renewable assets. Finally, regulations to require any new coal-fired power plant to capture and permanently geologically sequester at least 85 percent of its carbon dioxide emissions, along with state and federal regulatory frameworks for site selection, operation, and monitoring for carbon capture and geologic storage systems.

There is no such thing as “clean coal”. World renowned global warming scientist Dr. Jim Hansen has called NRDC out on this.

NRDC should be ashamed of advocating for it via the CCS technological boodoggle.