WolfeNotes.com

While Risks Rise – Christie Cuts Funds and Rolls Back Regulatory Protections

[Updates below]

The University of New Hampshire (UNH) just issued an important and amazingly timely Report: Trends in Extreme Precipitation Events for the Northeastern United States 1948-2007. (h/t to “Enviroguy” Todd Bates’ blog, Asbury Park Press). The UNH Report was covered in a national AP story in today’s Bergen Record:

BOSTON – ” The Northeast is seeing more frequent “extreme precipitation events” in line with global warming predictions, a study shows, including storms like the recent fierce rains whose floodwaters swallowed neighborhoods and businesses across New England.

The study’s results are consistent with what could be expected in a world warmed by greenhouse gases, said UNH associate professor Cameron Wake. He acknowledged it would take more sophisticated studies to cement a warming link, though.

“I can’t point to these recent storms and say, that is global warming,” he said.

What is more certain, researchers said, is the potential economic impact should the 60-year trend continue and require billions of dollars in infrastructure improvements to things in the region including roads, bridges, sewers and culverts.

Todd’s blog post and the Bergen Record fail to localize the UNH Report and apply its findings to NJ’s recent severe coastal storm damage and inland flooding.

So, let me take a very brief shot here – and by doing so, perhaps challenge NJ’s media and policy makers to engage a more thorough analysis and response. But first, the press just needs to ask simple questions:

Why is no one analyzing the same rainfall and flooding data and correlating it with land use changes here in NJ? (hint: it’s not due any to lack of hydrology data or land use/land cover data or precipitation data)

Why is the relationship between global warming and increased storm frequency/intensity/pattern rarely if ever made by the same tired meteorologists quoted in the NJ news stories?

The UNH Report makes two very obvious and fundamental findings we have been repeating for many years (e.g. see this and this and this and this and this and this and this and this, especially the Ocean County soil compaction analysis). We have the same phenomena right here in NJ. Yet, both UNH findings are ignored completely in NJ’s  media coverage of flooding and global warming issues, as well as in NJ’s policy and regulatory responses:

1) global warming is causing increasingly severe and frequent storm events, which are directly related to increased precipitation and flooding events:

Flooding events are relatively rare but naturally occurring in the Northeastern United States. For example, New Hampshire has averaged about one major, destructive flood per decade since the early 20th century. A major concern is that New Hampshire has recently experienced three major flooding events that followed three major extreme precipitation events (October, 2005, May, 2006, and April, 2007)2 (Table 1). As this report goes to press, major, but as yet unquantified, multiple flooding events are taking place here in March, 2010.

Decision makers currently use outdated flood-risk information and floodplain maps, based on historic rainfall and peak-discharge data that do not represent recent historical or current rainfall patterns.3 To facilitate effective planning, decision makers also require information on the future implications of changing land use and climate at a local scale, where climate change impacts are felt and understood most clearly.4 This study aims to provide a quantitative understanding of the current trends in extreme precipitation for the Northeast so that resource managers, municipal, county, state, and federal representatives, and other stakeholders have a baseline of information from which to prepare for and adapt to future climate change.

2) land use changes – i.e. development – are making the problem far worse

The growth in flood damage is partially due to an increase in impermeable surfaces in our watersheds, combined with more building in flood-prone areas. New England has experienced considerable development in many of its watersheds, with the consequent increase in impermeable surfaces such as asphalt resulting in more rapid runoff. Flooding is therefore more predominate, even with the same amount of rainfall.

The NJ Department of Environmental Protection is well aware of these serious issues and has been issuing warnings for years. For example, here are NJDEP’s Coastal Assessment and Strategy Report findings: (discussed in Letter on Catastrophic Storm Risk legislation (A3236))

“While the precise rate of sea level rise is uncertain, current models indicate that global warming will cause the rate to increase. Recent projections forecast that relative sea level rise at the New Jersey coast will be between 0.31 m and 1.10 m by 2100. The approximate central value of this range, 0.71 m is more than twice the rise that occurred during the last century. This increase would result in the threat of more sustained extreme storm surges, increased coastal erosion, escalating inundation of coastal wetlands and saline intrusion.

Many parts of New Jersey’s densely populated coastal area are highly susceptible to the effects of the following coastal hazards: flooding, storm surge, episodic erosion, chronic erosion, sea level rise, and extra-tropical storms. Reconstruction of residential development and the conversion of single family dwellings into multi-unit dwellings continues in hazardous areas; the value of property at risk is increasing significantly. With anticipated accelerating sea level rise and increasing storm frequency and intensity, vulnerability to the risks of coastal hazards will not abate; it will only become more costly.

In certain instances, structural engineering solutions will not be practical or economically feasible. In these cases future public and private development and redevelopment must be directed away from the hazardous areas. While some derogatorily refer to this option as “retreat,” from the perspective of sound planning based on the best available science, the concept actually involves “strategic adjustment.” Prudent planning requires that we expand upon the existing studies of the societal, economic, and environmental costs of possible mitigative actions while the greatest number of alternatives exist.

These findings led DEP to hold a September 25, 2006 Insurance industry seminar (see this), at a time that the insurance industry was threatening to walk away from the NJ shore due to huge multi-billion loss risks:

TRENTON- As Corzine Administration officials met quietly behind closed doors with insurance and finance industry leaders to discuss a statewide insurance fund to finance catastrophic shore storm risks, environmentalists called on the Governor to incorporate much needed coastal development and global warming policy reforms in any industry bailout package.

Numerous scientific studies and NJDEP Reports show that the over-developed NJ shore is increasingly vulnerable to hurricane and storm related wind, storm surge, and flooding damage. Those risks are magnified by the effects of global warming induced sea level rise. NJ already is among the worst states in the nation for payouts on repeat claims under the federal flood insurance program. While risks are great and growing, DEP’s own studies show that public awareness is low, and local and state disaster planning and emergency response capabilities are woefully inadequate.

Despite these significant risks, continued over-development, particularly in known high hazard areas along the shore, puts more people and property in harms way, greatly increasing not only risks to life and property. The probability is increasing for a catastrophic coastal storm event that would cause huge economic dislocation.

The multi-billion dollar scope of the problem and potential insurance liability has led insurance industry leaders to withdrawn from insurance markets in the tri-state region, and to seek a public bailout of insured liability.

In response to this industry concern, Corzine Administration officials in the Departments of Insurance and Environmental Protection have been meeting to negotiate a policy initiative. There is rumored to be a meeting with industry leaders today.

Coastal vulnerability and increased flooding risks were a significant justification for NJ’s Global Warming Response Act. DEP recently issued the Final Report mandated by the GWRA. Adaptation strategy recommendations are found in Chapter 4 of DEP’s December 24, 2009 Global Warming Response Act Recommendations Report. DEP calls for the development of a comprehensive adaptation plan:

Despite our best efforts to mitigate climate change in New Jersey, the State must develop a comprehensive plan to adapt to current and future changes in climate. CO2 and other GHGs are known to remain in the atmosphere for decades, and even up to centuries, from the time they are emitted into the atmosphere.99 Even if all emissions were stopped immediately, there would be a lag between mitigation of emissions and cessation of warming. Thus, New Jersey is expected to face many public health, ecological and economic impacts with specific consequences noted by the Northeast Climate Impacts Assessment.

Predictions are that in coming years, sustained higher temperatures during the summer months will make our citizens especially vulnerable to heat-related illness. Warmer temperatures and increases in short-term droughts are expected to have impacts on agriculture and water supply availability. Warmer temperatures will lead to more intense rain events which, coupled with rising seas, will leave our coastal and riparian areas especially vulnerable to flooding, with additional repercussions for water supply. Sea level rise will impact coastal communities and coastal habitats. Non-climate stresses, such as dense population, high impervious cover, high nutrient loading, and high flooding potential, or a combination of these factors, will exacerbate vulnerability to climate change.101 These are just some examples of the long-term impacts we expect concurrent with our efforts to mitigate GHG emissions.

Thus, a comprehensive adaptation policy must be developed as a key component of any long term climate change action plan. Addressing these issues today just makes sense; they are complicated and require thoughtful approaches. It is hard to predict precisely which of the losses to New Jersey might be irreversible, yet, we must acknowledge that some may be permanent. Still, we cannot, as some say, “wait it out.” While climate change might cause irreparable losses in some areas, it may also create economic opportunities in others. For example, spending to construct and/or adapt buildings and homes for storm resilience may be a good investment for property owners in terms of personal safety and financial exposure, while providing a positive outcome for communities in terms of reduced emergency services and preservation of a neighborhood. Similarly, water conservation measures for protection against more intense droughts in the long-term can certainly result in benefits for mitigation of droughts in the shortterm.

Yet, the Christie Administration, to save a few hundred thousand dollars, is seeking to eliminate the DEP’s Office of Climate Change, which is the Office that is developing this important programs and planning effort.

So, as I said, I tried to briefly sketch the scope of the NJ issues raised by the UNH Report.

Let’s hope these issues get more attention by media and policymakers. There is plenty of information provided above.

Then, perhaps the severely negative implications of the Christie de-funding and regulatory rollback efforts are more widely understood so that they can be stopped and reversed.

Other contributors to the UNH Report: Carbon solutions New England and Clean Air – Cool Planet

[Update: Twelve years after I wrote this, check out his essay:

There is also the possibility that the human species goes the other way and adapts. Organisms always wind up hitting a juncture where they either adapt to a new situation or go extinct, and we are approaching our juncture now. […]

Once we move out of our narrative manipulation-driven model of competition and domination, and into a lucidity-driven model of collaboration with each other and with our ecosystem, a lasting peace will open up to us all. ~~~ Caitlin Johnstone

[Update: more evidence: “NJ Under Brushfire Watch” ~~~ end update]

[Updates below]

On March 24, 2010, Department of Environmental Protection (DEP) Commissioner Bob Martin quietly issued Administrative Order 2010-3.

In doing so, Martin followed the unilateral, radical, and lawless rollback approach established by his boss, Governor Christie, who issued a series of Executive Orders 1-4.

Just one week after he killed DEP’s proposed perchlorate drinking water standard, Martin’s Order makes significant substantive changes to the DEP’s Water Quality Management Planning Rule: N.J.A.C. 7:15.

The Martin changes significantly weaken the WQMP rules, benefit developers and property owners, prohibit enforcement, and delay implementation (see below for details of Order). So Martin is just beginning to deliver the “regulatory relief” promised by Governor Christie in Executive Order #2.

The DEP’s WQMP rules have long been highly controversial, because they dictate where sewers and high density development can occur and are a means of protecting NJ’s last few remaining environmentally sensitive lands. Ever since the Whitman Administration tried to weaken them (does anyone recall the Whitman April 17, 2000 “Sewers: The Last Frontier of Smart Growth” speech at Princeton’s Woodrow Wilson School?), the WQMP rules have been one of the highest priorities of both builders and environmentalists. The WQMP rules have been the subject of several failed lawsuits filed by the Builders and led to scores of high profile battles in Trenton and at the local level (probably the most visible were the Merrill Lynch and Washington Valley sewer wars).

The WQMP rules are so significant, that the the NJ Builders Assc. and the development lobby convinced the Legislature to pass a bill during the Lame Duck Session to weaken and delay their implementation. The US EPA opposed that bill as a violation of the federal Clean Water Act and the bill was vetoed by Governor Corzine.

DEP, explicitly conceding political pressure by legislators and developers, caved in before a bill was even passed. Political influence over DEP is now so deep that it is an accepted fact of life. For example, in a July 14, 2009 letter, DEP Acting Assistant Commissioner Scott Brubaker explained why he was setting aside enforcement of the WQMP rules because legislators had introduced a bill to bully DEP to bend over:

The Department is also under pressure from the development community, which fears that the Department will unilaterally remove sewer service areas. Recently, legislation has been introduced that would extend the submission deadline. Together these added burdens would preclude the Department from adopting any new or updated wastewater management plan for the foreseeable future. Any Department effort to withdraw sewer service areas would encourage this legislation.

So, rarely does a DEP regulatory issue rise to this substantive significance and political controversy.

This all proves that Martin’s Order is highly substantive – and therefore patently illegal – because it amends DEP regulations without complying with the public notice and comment due process rule-making procedures mandated by the NJ Administrative Procedures Act.

Martin not only arrogantly ignored and blatantly violated NJ legal requirements, he is on a collision course with US EPA over Clean Water Act compliance. Again, US EPA opposed the WQMP rule rollback. A harsh statement issued by Judith Enck, EPA Regional Administrator said:

“EPA continues to disagree with this misguided policy. We thought this was a bad bill, it’s now a bad DEP policy. Delaying water quality planning is never a good idea. We urge the New Jersey DEP to explain to the public and to the EPA why this is a good thing for water quality.”

But we’re getting ahead of ourselves here, so let’s talk more broadly before we get into the weeds of a critique of the Martin Order.

To make matters even worse, when the Order was disclosed to the media (see Star Ledger), DEP Deputy Commissioner Ray Cantor not only spun to downplay the significance of the Order, incredibly, he claimed that a “Stakeholders meeting” would somehow fix it all! According to the March 30, 2010 Bergen Record:

“We are more concerned with getting the plans right than getting them in early,” said Ray Cantor, a special assistant to Martin. “The underlying plans still apply. Nothing has really changed. A county can submit their plans tomorrow if they want to. This just gives them a little more room, which is what they have been asking for.”

DEP officials said the order is not as severe as the bill, which was sponsored last year by state Sen. Paul Sarlo, D-Wood-Ridge. Business groups had supported the bill, saying it was needed to help builders weather the economic downturn.

Tittel said Martin’s order was done with no public input, unlike the Sarlo bill, which was the subject of several public hearings in Trenton. [My note: see Sarlo bill]

Cantor said a stakeholder meeting is scheduled for Thursday to hear concerns from developers, environmentalists and government officials.

The so-called “stakeholder meeting” is being held today. It is a complete sham and transparent “divide and conquer” strategy.

Not only is the meeting being held AFTER Martin made a very bad decision to issue Administrative Order, the meeting is secret, by invite only, and will be attended by a small hand picked group of friends. No statewide environmental advocacy groups are going – one was invited but will not attend – sadly, I am told, due to scheduling conflicts, not as a matter of principle.

Ironically, while Martin issues edicts that blatantly violate public participation requirements of administrative law and hides behind sham “stakeholder” political cover, in his January 20, 2010 inaugural address, Gov. Christie declared that:

Today, a new era of accountability and transparency is here.

So Martin has failed early tests of transparency reform.

Martin is also failing to comply with law. The lead case is known as “Metro-Media“. That NJ Supreme Court decision sets out clear criteria to judge when a State agency action amounts to “regulation” that must be subject to public notice and comment rule-making procedures to preserve fundamental rights of due process and democratic accountability. The Metro-Media decision set out 6 criteria, any one of which trigger mandatory rule-making procedures. The Supreme Court found:

We can synthesize from this authority that an agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.

The Martin Administrative Order triggers not one, but ALL 6 Metro-Media criteria!

Ironically, the Christie Administration’s Red Tape Review Group is using this specific case law as a means to beat up DEP, rollback environmental requirements (A2486), and erect new political and procedural barriers to effective regulatory protections (A2464). At their first hearing, the Red Tape Group took testimony from builders lawyer Neil Yoskin who implied that DEP informal practices routinely violated legal requirements under Metro-Media. Yoskin later gave legislative testimony in support of A2464 (see this), legislation that would handcuff DEP and lead to weakening of environmental protections. Yet Yoskin provided no examples or case law where courts have found that DEP failed to follow the law.

It is beyond hypocrisy that Martin is clearly violating exactly the legal requirements he and the Christie gang are using as an excuse to rollback environmental protections and demonize DEP. Where is the outcry from Neil Yoskin and the NJ legal community about Martin’s gross abuse?

Adding to the irony, the NJ Builders Association has launched lawsuits attacking the Administrative Orders of former DEP Commissioners for alleged violation of public participation and due process requirements. For example, builders unsuccessfully challenged former DEP Commissioner Lisa Jackson’s Administrative Orders issued in 2007 and 2008 on 300 foot stream buffers. They also challenged former DEP Commissioner Bob Shinn’s Administrative Order regarding making DEP rules consistent with the State Plan.

Substantively, Martin’s Order does the following – all of which are substantive and trigger Metro-Media rule-making requirements (sorry, I have the Order as pdf file and am unable to post. Drop me an email and I will forward):

1) further delays implementation of the mandatory requirements and timetable of the rules, until April 7, 2011;

2) surrenders the DEP’s authority to withdraw lands from sewer service areas, in direct conflict with the mandate of the rules;

3) pledges that the DEP will not act upon or enforce the new development impact build-out requirements of the rules. The order also adds additional substantive mapping requirements and new procedural steps in the rules in this regard, including web posting, public notice, public comment, and public hearing procedures that are not in current rules;

4) provides new opportunities, standards, criteria, and procedures for a property owner to request that his/her property become part of a sewer service area; and

5) provides new opportunities and procedures for a property power to block DEP’s deletion of environmentally sensitive lands from a sewer service area.

[Update 1: per points #1 & 2 above, thought I’d make things easier on readers by providing the applicable regulatory text. What is it about the term “shall” that DEP can’t understand? Non discretionary duty:

NJAC 7:15-5.23

[(a)]

(b) If a wastewater management plan in compliance with the schedule in (a) above is not
in place on July 7, 2008, the WMP agency shall submit a WMP or WMP update by April 7,
2009. If a municipality accepts wastewater management plan responsibility through alternative
assignment under N.J.A.C. 7:15-5.13, the municipality shall submit a wastewater management
plan by July 7, 2009 or in accordance with the schedule established in (e) below.

(c) If the wastewater management planning agency fails to comply with the schedule in
(a) or (b) above or an alternative schedule established under (e) or (f) below, the general service
areas for wastewater facilities with planning flows of less than 20,000 gallons per day which
discharge to ground water, the general service area for wastewater facilities with planning flows
of less than 2,000 gallons per day which discharge to ground water, and sewer service areas shall
be withdrawn in accordance with N.J.A.C. 7:15-8.1.

7:15-8.1 Withdrawal of wastewater service area designations

(a) Except as provided in (b) and (d) below, wastewater service area designations shall
be withdrawn in areas which fail to adopt and maintain a wastewater management plan in
accordance with the requirements of N.J.A.C. 7:15-5.2(b), 5.13 and 5.23.

[Update 2 – 4/2 – I was just informed that Martin was not at the meeting, which was run by Cantor. While I never said Martin was, just thought I’d clarify.]

[Update 3 – again, to make it easier on readers, here is the Legislature’s intent for passing the WQMP rule extension. Whether one agrees with these findings and policy is not the issue. Note the substantive significance of what is at stake. Given the essentially legislative policy nature of the substantive issues the Legislature considered, it becomes crystal clear why Bob Martin of DEP may not effectively legislate by Administrative Order:

l.The withdrawal of wastewater service areas on a Statewide basis would have a severe negative economic impact and would further exacerbate the current economic recession, precluding development projects and activities, which would otherwise generate jobs, act as sources of fee generating activities for sewerage authorities and other public and private utilities, and act as a source of tax and other revenues. Such an occurrence would hamper the State’s ability to recover from the economic recession, slowing job creation and redevelopment that are normally a source of revenue, increasing the revenue shortfall in the State’s budget, and further hampering the State’s ability to provide for the general welfare needs of its residents.

Here is the summary of the bill that passed the Legislature and was vetoed by Governor Corzine – compare what the Legislature tried to do with points #1-5 above from Martin Administrative Order and it becomes OBVIOUS that Martin was illegally legislating via AO:

The Assembly Housing and Local Government Committee reports favorably and with committee amendments Assembly Bill No. 4345.

As amended, this bill would extend for two years the requirement for wastewater management planning agencies to prepare and submit a wastewater management plan or a wastewater management update to the Department of Environmental Protection (DEP) and would maintain during the extension period the validity of wastewater service areas and sewer service areas. The amended bill defines “extension period” as the time period beginning on April 7, 2009 and ending on April 7, 2011.

Under the DEP’s current Water Quality Management Planning rules, N.J.A.C.7:15-1.1 et seq., adopted effective July 7, 2008, wastewater management planning agencies are required to submit a wastewater management plan or a wastewater management plan update to the department by April 7, 2009. This bill would extend that time period by two years, and would further provide that no sewer service area designations would be withdrawn during the extension period.

The bill would also require the DEP to act upon site specific or project specific amendments or revisions to wastewater management plans and water quality management plans within 90 days after receipt of a complete application.

In addition, the bill would establish a specific requirement for notice and public hearing whenever the department proposes to remove property from a sewer service area.

The bill also sets forth conditions for the inclusion of property within sewer service areas. Specifically, under the bill, sewer service areas shall include all parcels of land for which at least one of the following approvals were issued prior to the wastewater management planning agency adopting a new, revised, or updated wastewater management plan and that plan is approved by the department: preliminary or final site plan approval, preliminary or final subdivision approval, municipal building or construction permit, or general development plan approval pursuant to the “Municipal Land Use Law”; a treatment works approval; or a New Jersey Pollutant Discharge Elimination System permit. As amended, the legislation provides that a landowner may petition the department and the applicable wastewater management planning agency during the extension period for a change to the sewer service area designation for the real property identified in the petition. Upon approval of both the department and the applicable wastewater management planning agency, the change to the sewer service area designation would take effect immediately.

Further, the bill requires the department and wastewater management planning agencies to consider the following when making a determination regarding the inclusion of a parcel in, or the exclusion of property from, a sewer service area under any new, revised or updated wastewater management plan:  (1) the zoning of the property; (2) the existing development and land use surrounding and in the vicinity of the property; (3) the existing infrastructure and availability of utilities; (4) any affordable housing obligations; (5) redevelopment opportunities and objectives; (6) the designation of the property pursuant to the State Development and Redevelopment Plan; and (7) any prior or existing development or partial development on or associated with the property.

The amended bill also provides that, during the extension period, whenever the State, a local government unit, or a qualifying tax exempt nonprofit organization is contemplating the acquisition of a specific parcel of land for recreation and conservation purposes or farmland preservation purposes using public funds, or a landowner is contemplating the sale or other transfer of land for such purposes, the governmental entity, nonprofit organization, or landowner may request in writing of the department to decide, in consultation with the applicable wastewater management planning agency, and within 180 days after receipt of the request, whether the specific parcel of land will or will not be included in a sewer service area. If the landowner disagrees with the decision of the department, the landowner may follow the appeal procedure set forth in the bill. The decision of the department, in consultation with the applicable wastewater management planning agency, would be used to assist in the valuation of the parcel for possible preservation under open space and farmland preservation programs.

COMMITTEE AMENDMENTS:

The committee amended the bill:

1) to provide that, during the extension period, a property owner may petition the department and the applicable wastewater management planning agency for a change to the sewer service area designation for the property, and upon approval of both the department and the wastewater management planning agency, the change to the sewer service area designation would take effect immediately;

2) to provide that, during the extension period, whenever the State, a local government unit, or a qualifying tax exempt nonprofit organization is contemplating the acquisition of a specific parcel of land for recreation and conservation purposes or farmland preservation purposes using public funds, or a landowner is contemplating the sale or transfer of land for either of those purposes, governmental entity, nonprofit organization, or landowner may request in writing of the department to decide, in consultation with the applicable wastewater management planning agency whether a specific parcel of land will or will not be included in a sewer service area, when the State, a local government unit or qualifying non profit is contemplating the acquisition of a specific parcel of land for recreation, conservation, or farmland preservation purposes. The modifications also set forth an appeal procedure for this decision;

3) to change the ending date of the extension of the validity of sewer service areas and wastewater service areas from April 7, 2012 to April 7, 2011.

Why Roll Back NJ Environmental Standards To Federal Minimums?

Why handcuff DEP enforcement? And why would Democrats join Governor Christie in doing so?

[Update 2 : NJ Spotlight coverage: Assembly Committee Bans Guidance Documents – DEP is primary target of prohibition

[Update 1: 4/5/10 – Philly Inquirer story: “Committee ponders limits of state agencies’ regulations“]

Less than 48 hours after the first “public” (by invite only) meeting of the “Red Tape Review Group” led by the new Regulatory Czar established by Governor Christie’s Executive Orders #1 (a moratorium on certain regulations) and EO#2 (“common sense” regulatory policies including cost benefit analysis and rollback to federal minimums) and EO #3 (Red Tape Review Group) (for press coverage of that meeting, see “NJ red-tape review board gets an earful“), today an Assembly Regulatory Oversight Committee rammed through a dangerous bill to gut enforcement of a broad array of DEP public health and environmental protections.

The bill in question, A2464 (Burzichelli (D – Valero), was not even drafted or formally introduced at the time of the hearing. The bill was opposed strongly by virtually all environmental groups. Following this testimony, a committee aide read the extremely complex bill aloud, with extensive amendments. Amazingly, not even having read what they were considering, the Committee then voted unanimously to approve and release the bill.

Burzichelli’s Committee also took testimony on proposed legislation to block state agencies from adopting regulations that are stricter than federal minimums without prior and explicit legislative authorization (in other words, rollback followed by paralysis).

Both moves have been long sought and were loudly applauded by lobbyists for the highly polluting chemical and energy industries. And it was no secret that DEP and environmental regulations were the target of both bills.

But why on earth would the Governor’s rollback agenda – bad policy, deeply unpopular, and opposed by 79% of New Jerseyans according to a recent poll – be supported by democrats in the Legislature?

Burzichelli and the Committee hid behind the Christie Executive Orders’ “Red Tape” process to target and scapegoat DEP and environmental regulations as causing or contributing to the economic collapse.

While the testimony focused on legal esoterica of administrative law and environmental regulation, it was obvious from the outset – despite repeated denials by Burzichelli – that the agenda and policy objective was to use the economic crisis as a pretext and to provide cover for an extremist DEP and environmental dismantling exercise long been sought by the polluters and developers of NJ.

Now that the dual economic and fiscal crises have hit, industry lobbyists are cynically, viciously, and shamelessly exploiting the situation.

Here is the Committee’s last minute posted agenda announcement:

The committee will hear testimony from the public concerning the feasibility of prohibiting a State agency from filing with the Office of Administrative Law a notice of proposal or notice of adoption for any rule that would exceed federal standards or requirements unless specifically authorized by State law. A-2464 Burzichelli – Requires all State agency rules be published in NJ Register, and prohibits use of regulatory guidance documents unless specifically authorized by State law.

Right.

DEP testified in support of the legislation by announcing that Acting Commissioner Martin will soon issue an Administrative Order that will make all existing DEP guidance voluntary. In another radical departure from 35 years of policy and administrative practice at DEP, Martin will mandate that only adopted regulatory requirements are enforceable.

Assistant Commissioner Kropp even admitted that the intent was to shield newly Licensed Site Professional toxic site cleanup contractors from enforcement actions by DEP or the newly created Licensing Board. After having successfully privatized the NJ toxic site cleanup program, polluters are now seeking to gut the technical requirements of the cleanup program, which are implemented via “guidance documents”.

Recent very high profile illustrations of the importance of enforceable DEP guidance documents and Technical Manuals are: 1) chemical vapor intrusion into 450 homes in Pompton Lakes from the Dupont site; 2) chemical vapor intrusion into Atlantic Highlands Elementary school from a nearby toxic site; 3) toxic air pollutions and cancer risks assessments in Paterson NJ.

My testimony provided numerous examples of:

1) why Technical Manuals (see NJDEP-Land Use Regulation Program-Notice of Revision and Updating of Freshwater Wetlands … and NJPDES Discharge to Ground Water Technical Manual (June 2007) and this and this and this);

2) why DEP guidance documents raise enforcement issues (see this and this and this and this and this and this and this and this and this and this;

3) why stricter state laws and DEP regulations have been enacted and authorized, respectively, by the NJ Legislature over the past 35 years; and

4) why those standards are necessary and strongly supported by the public. As I previously wrote:

The environmental indicators that justify NJ’s stringent environmental and public health regulatory protections are uniformly dire.

NJ is the nation’s most densely populated state with the most cars, most development, most pavement and most toxic pollutants per square mile. NJ’s precious shore is highly over-developed and vulnerable to storms and sea level rise. Yet we continue to lose more than 15,000 acres of forests, farms, and wetlands per year to new development. NJ’s racially and economical segregated urban communities bear unjust disproportionate pollution and health burdens.  Contradicting lots of empty political rhetoric about reducing emissions, NJ’s greenhouse gas emissions continue to rise steeply. NJ has the most toxic Superfund sites and more than 20,000 other toxic sites. Communities are threatened by at least 15 chemical facilities, where an accident or terror attack could kill more than 100,000 residents. In NJ, more than 65% of streams and rivers and 100% of lakes fail to meet water pollution standards and lack cleanup plans. Statewide Fish Consumption Advisories warn that fish and shellfish are too toxic to eat. Over 12% of residential water wells fail health standards. The entire state does not meet health based standards for air pollutants ozone, fine particulates, and numerous cancer causing toxic chemicals; and not surprisingly NJ has the nation’s highest cancer and asthma rates.

No wonder, according to a recent Monmouth University/Gannett poll, 79% of NJ residents – on a bipartisan and socio-economic basis – oppose rollbacks on NJ’s strict environmental regulations as a solution to the state’s dual fiscal and economic crises.

I ran rapid fire through a list of major NJ environmental programs that the Legislature – in its infinite wisdom – has authorized over the last 35 years, all of which are more stringent than minimum national standards and many of which are legally required to receive delegation and hundreds of millions of dollars in federal funds for implementing federal laws. The bills under consideration would put at risk and/or roll back all of the DEP regulations and Guidance documents that implement these laws that protect public health and the environment, including:

1. Air Pollution Control Act of 1954

2. NJ Spill Compensation  & Control Act of 1976 (state Superfund, enacted 4 years before Love Canal drove federal Superfund)

3. NJ Water Pollution Control Act, the state Clean Water Act

4. NJ groundwater quality standards

5. land use laws (State Planning Act, MLUL, et al)

6. toxic soil cleanup standards

7. hazardous waste management requirements

8. Safe Drinking Water Act – and 1 in a million cancer risk standard for carcinogens

9. Highlands

10. Pinelands

11. Coastal zone management (CAFRA)

12. solid waste regulation of things like landfills, garbage transfer stations, and restrictions on importation of Philadelphia and NYC garbage

13. NJ’s curbside recycling program

14. water supply allocation regulations

15. pesticide regulations

16. Toxic catastrophe Prevention Act to prevent a Bhopal chemical accident in NJ

17. Public and Community Right to Know about chemicals

18. Discharge Prevention and containment at oil storage tanks

19. Natural Resource Damage compensation and restoration

20. water resource planning (wastewater treatment infrastructure, sewers and septic service areas)

21. Watershed Planning and management

22. stringent enforcement fines and penalties to provide real deterrence nd promote compliance

23. robust public involvement

24. open public records

25. flood hazard controls and development limitations in flood prone areas

26. stormwater management

27. freshwater adn coastal wetlands protection

28. protections for threatened and/or endangered species, including rare plants and ecological communities

29. fisheries/shellfisheries management and safe seafood

30. residential septic controls t block pollution and protect home-buyers

31. private well testing

32. well drilling

33. sludge/residuals management and beneficial reuse

34. dam safety

35. pollution prevention

36. underground storage tank regulation

37. laboratory certification and standards

38. radiation protection

39. inherently safer technology for chemical production and storage

40. low emission/zero emission vehicles

41. greenhouse gas regulation’

42. promotion of energy efficiency and renewable energy

43. landfill closure/financing

44. compensation for damages from pollution

[Update: 3/2/10 – read Martin interview by Todd Bates/Kirk Moore of APP, plus more in depth blog coverage by Bates]

We previously criticized DEP Commissioner nominee Bob Martin for failing to make a public statement of his vision for DEP and post his bio on the DEP website, as is traditional practice for incoming Commissioners.

That statement and bio are necessary parts of demonstrating leadership of the Agency and they set the stage for the qualifications, priorities, and policy agenda to be explored during Senate confirmation hearings. (read Martin interview here).

In the spirit of fairness, we are pleased to report that Martin finally has come out. Because we were harsh critics, we now post his bio and message to DEP employees, which was dated January 27, 2009, but just posted on the DEP web page (the DEP web page was updated/created on Feb. 24. A one month lag in posting is somewhat odd from a person who touts his IT experience. I guess his Senate confirmation hearing is scheduled. )

For now, I will only note disturbing policy themes and questionable priorities:

1. Martin’s bio stresses his experience in privatization and deregulation of public services and infrastructure (public utility/energy and water systems).

2. Martin’s bio provides no clear facts on exactly what his consulting experience is – I have read that Accenture, his firm, was known for downsizing and off shoring jobs. In my view, Martin’s bio does not demonstrate satisfaction of the statutory minimums required for the job, which are to be “qualified by training and experience to perform the duties of the office” as follows:

13:1B-2. Commissioner of Conservation and Economic Development; appointment;  term;  salary
The administrator and head of the department shall be a commissioner, who shall be known as the Commissioner of Conservation and Economic Development, and who shall be a person qualified by training and experience to perform the duties of his office.  The commissioner shall be appointed by the Governor, with the advice and consent of the Senate, and shall serve at the pleasure of the Governor during the Governor’s term of office and until the appointment and qualification of the commissioner’s successor.

[Note: The Department of Conservation and Economic Development was abolished an recreated as DEP on April 22, 1970 – the elimination of the economic development function is additional evidence in support of point #5 below]

3. Martin’s message to DEP employees repeats his emphasis on “robust cost/benefit analysis” (CBA is now mandatory for all DEP regulations/ under Executive Order #2)

Because regulations set the requirements for all permits issued by DEP, all environmental permits will be subject to CBA as well.

Cost benefit analysis is fraught with major controversies as a regulatory tool.

Worse, I have no idea what Martin means by the term “robust” – this is highly questionable, because DEP has just one economist on staff and he is not trained in CBA.

So, lack of DEP capacity likely will be used to open the door for industry conducted CBA and be used as a policy basis to scale back regulations.

To illustrate the likely abuse of CBA, on February 8, 2010, DEP Assistant Commissioner Nancy Wittenberg testified to the Senate Environment Committee that DEP would apply cost benefit analysis – after the fact – in making the Oyster Creek cooling tower final permit decision. The Oyster Creek Draft Surface Water Renewal Permit (pdf) issued by DEP in January did NOT include cost/benefit analysis, so I fail to see how DEP legally can do so after the fact. Wittenberg also confirmed that DEP would reply on “outside help“: (link to APP story)

The committee chairman, Sen. Bob Smith, D-Middlesex, had introduced legislation to require cooling towers before the DEP last month announced it would make that a requirement of a new discharge permit. Smith has promised in this legislative session to move on several proposals aimed at dealing with the bay’s ecological problems.

He asked Wittenberg how long the DEP will need to act on the plant permit.

“At least a year,” she said. Two public hearings are planned during the comment period that ends March 15, and then the DEP will need help from outside experts to conduct a cost-benefit analysis of the towers proposal, Wittenberg said.

“It will be a heavy lift for the department,” she added.

4. Martin’s message to DEP employees cites the “economic collapse” as a significant concern to him and DEP staff, yet he fails to note that the collapse was not created by DEP or environmental requirements, but by his private sector pals taking advantage of privatization and deregulation policies, while focused exclusively on economic issues and flawed tools, like cost benefit analysis..

5. Martin wants DEP “to play a key role in the economic growth of the state“. For now, I would just like to remind Martin and Senate Judiciary Committee members that promoting economic growth is NOT the statutory mission of DEP. Because so few seem to know what the DEP is supposed to do, here is DEP’s mission and powers, as established in DEP’s enabling legislation (note especially the lack of economic development powers):

13:1D-9  Powers of department.

12.The department shall formulate comprehensive policies for the conservation of the natural resources of the State, the promotion of environmental protection and the prevention of pollution of the environment of the State. The department shall in addition to the powers and duties vested in it by this act or by any other law have the power to:

a.Conduct and supervise research programs for the purpose of determining the causes, effects and hazards to the environment and its ecology;

b.Conduct and supervise Statewide programs of education, including the preparation and distribution of information relating to conservation, environmental protection and ecology;

c.Require the registration of persons engaged in operations which may result in pollution of the environment and the filing of reports by them containing such information as the department may prescribe to be filed relative to pollution of the environment, all in accordance with applicable codes, rules or regulations established by the department;

d.Enter and inspect any property, facility, building, premises, site or place for the purpose of investigating an actual or suspected source of pollution of the environment and conducting inspections, collecting samples, copying or photocopying documents or records, and for otherwise ascertaining compliance or noncompliance with any laws, permits, orders, codes, rules and regulations of the department. Any information relating to secret processes concerning methods of manufacture or production, obtained in the course of such inspection, investigation or determination, shall be kept confidential, except this information shall be available to the department for use, when relevant, in any administrative or judicial proceedings undertaken to administer, implement, and enforce State environmental law, but shall remain subject only to those confidentiality protections otherwise afforded by federal law and by the specific State environmental laws and regulations that the department is administering, implementing and enforcing in that particular case or instance. In addition, this information shall be available upon request to the United States Government for use in administering, implementing, and enforcing federal environmental law, but shall remain subject to the confidentiality protection afforded by federal law. If samples are taken for analysis, a duplicate of the analytical report shall be furnished promptly to the person suspected of causing pollution of the environment;

e.Receive or initiate complaints of pollution of the environment, including thermal pollution, hold hearings in connection therewith and institute legal proceedings for the prevention of pollution of the environment and abatement of nuisances in connection therewith and shall have the authority to seek and obtain injunctive relief and the recovery of fines and penalties in a court of competent jurisdiction;

f.Prepare, administer and supervise Statewide, regional and local programs of conservation and environmental protection, giving due regard for the ecology of the varied areas of the State and the relationship thereof to the environment, and in connection there with prepare and make available to appropriate agencies in the State technical information concerning conservation and environmental protection, cooperate with the Commissioner of Health and Senior Services in the preparation and distribution of environmental protection and health bulletins for the purpose of educating the public, and cooperate with the Commissioner of Health and Senior Services in the preparation of a program of environmental protection;

g.Encourage, direct and aid in coordinating State, regional and local plans and programs concerning conservation and environmental protection in accordance with a unified Statewide plan which shall be formulated, approved and supervised by the department. In reviewing such plans and programs and in determining conditions under which such plans may be approved, the department shall give due consideration to the development of a comprehensive ecological and environmental plan in order to be assured insofar as is practicable that all proposed plans and programs shall conform to reasonably contemplated conservation and environmental protection plans for the State and the varied areas thereof;

h.Administer or supervise programs of conservation and environmental protection, prescribe the minimum qualifications of all persons engaged in official environmental protection work, and encourage and aid in coordinating local environmental protection services;

i.Establish and maintain adequate bacteriological, radiological and chemical laboratories with such expert assistance and such facilities as are necessary for routine examinations and analyses, and for original investigations and research in matters affecting the environment and ecology;

j.Administer or supervise a program of industrial planning for environmental protection; encourage industrial plants in the State to undertake environmental and ecological engineering programs; and cooperate with the State Departments of Health and Senior Services, and Labor and Workforce Development, and the New Jersey Commerce Commission in formulating rules and regulations concerning industrial sanitary conditions;

k.Supervise sanitary engineering facilities and projects within the State, authority for which is now or may hereafter be vested by law in the department, and shall, in the exercise of such supervision, make and enforce rules and regulations concerning plans and specifications, or either, for the construction, improvement, alteration or operation of all public water supplies, all public bathing places, landfill operations and of sewerage systems and disposal plants for treatment of sewage, wastes and other deleterious matter, liquid, solid or gaseous, require all such plans or specifications, or either, to be first approved by it before any work thereunder shall be commenced, inspect all such projects during the progress thereof and enforce compliance with such approved plans and specifications;

l.Undertake programs of research and development for the purpose of determining the most efficient, sanitary and economical ways of collecting, disposing, recycling or utilizing of solid waste;

m.Construct and operate, on an experimental basis, incinerators or other facilities for the disposal of solid waste, provide the various municipalities and counties of this State, and the Division of Local Government Services in the Department of Community Affairs with statistical data on costs and methods of solid waste collection, disposal and utilization;

n.Enforce the State air pollution, water pollution, conservation, environmental protection, solid and hazardous waste management laws, rules and regulations, including the making and signing of a complaint and summons for their violation by serving the summons upon the violator and thereafter filing the complaint promptly with a court having jurisdiction;

o.Acquire by purchase, grant, contract or condemnation, title to real property, for the purpose of demonstrating new methods and techniques for the collection or disposal of solid waste;

p.Purchase, operate and maintain, pursuant to the provisions of this act, any facility, site, laboratory, equipment or machinery necessary to the performance of its duties pursuant to this act;

q.Contract with any other public agency or corporation incorporated under the laws of this or any other state for the performance of any function under this act;

r.With the approval of the Governor, cooperate with, apply for, receive and expend funds from, the federal government, the State Government, or any county or municipal government or from any public or private sources for any of the objects of this act;

s.Make annual and such other reports as it may deem proper to the Governor and the Legislature, evaluating the demonstrations conducted during each calendar year;

t.Keep complete and accurate minutes of all hearings held before the commissioner or any member of the department pursuant to the provisions of this act  All such minutes shall be retained in a permanent record, and shall be available for public inspection at all times during the office hours of the department;

u.Require any person subject to a lawful order of the department, which provides for a period of time during which such person subject to the order is permitted to correct a violation, to post a performance bond or other security with the department in such form and amount as shall be determined by the department. Such bond need not be for the full amount of the estimated cost to correct the violation but may be in such amount as will tend to insure good faith compliance with said order  The department shall not require such a bond or security from any public body, agency or authority. In the event of a failure to meet the schedule prescribed by the department, the sum named in the bond or other security shall be forfeited unless the department shall find that the failure is excusable in whole or in part for good cause shown, in which case the department shall determine what amount of said bond or security, if any, is a reasonable forfeiture under the circumstances. Any amount so forfeited shall be utilized by the department for the correction of the violation or violations, or for any other action required to insure compliance with the order;

v.Encourage and aid in coordinating State, regional and local plans, efforts and programs concerning the remediation and reuse of former industrial or commercial properties that are currently underutilized or abandoned and at which there has been, or is perceived to have been, a discharge, or threat of a discharge, of a contaminant. For the purposes of this subsection, “underutilized property” shall not include properties undergoing a reasonably timely remediation or redevelopment process; and

w.Conduct research and implement plans and programs to promote ecosystem-based management.
L.1970, c.33, s.12; amended 1975, c.33; 1981, c.446, s.1; 1983, c.38, s.1; 1984, c.5, s.1; 1997, c.278, s.26; 2007, c.246, s.2; 2007, c.288, s.6.

Here is Martin’s bio and statement to DEP employees, as posted on Feb. 24 on DEP website:

Demonstrating his commitment to building a strong, experienced team, Governor Chris Christie nominated Bob Martin to serve as Commissioner of the Department of Environmental Protection.

An accomplished business and industry leader with recognized expertise in energy and utilities, he served as a key policy adviser throughout Governor Christie’s gubernatorial campaign. He assisted in shaping and drafting then-candidate Christie’s Energy Policy and Environmental Policy, and provided policy guidance on other major issues. In recent years, he also has served as a respected and trusted adviser, primarily in energy policy, to several other candidates for U.S. Senate, congressional and gubernatorial seats.

In 2008, he retired as a partner with Accenture LLP after more than 25 years. Accenture is the world’s largest business and technology consulting firm with more than 140,000 employees around the globe.

Highly experienced in consulting, he has achieved impressive results working with a variety of businesses and industries“ particularly energy and utility companies“ to improve efficiency and enhance performance in an increasingly competitive marketplace. He has expertise in all aspects of business and management consulting, including business strategy and planning, business transformation and re-engineering, IT strategy, systems implementation, and change management. He also has considerable experience in project management of large systems integration and in business re-engineering projects.

Acting Commissioner Martin also has extensive international experience. While living in England from 1991 to 1995, he worked with several large U.K. water and electric utilities as the companies privatized and the markets deregulated. He also spent significant time working with utility and energy companies throughout Europe and Canada.

Actively involved in the community, he was a candidate for State Senate in New Jersey’s 15th District in 2007. He formerly served as the Chairman of the Finance Committee for the Mercer County Republican Committee. He served on the Salvation Army Advisory Board of Greater New York from 2001 until January 2010, and as its Chairman from 2007 until January 2010. He served on the Princeton Healthcare System Foundation Board in 2008 and 2009. He also served on the Board of Trustees at the Chapin School in Princeton from 1996 to 2008, and on the Finance Advisory Committee for Hopewell Township from 2005 to 2007. He has been active in coaching youth soccer and lacrosse in Hopewell Valley for more than13 years.

Born and raised in Massachusetts, Acting Commissioner Martin earned a bachelor of arts in Economics and Sociology from Boston College in 1979 and an MBA from The George Washington University in 1982.

He and his wife, Brenda, have lived in Hopewell Township for more than 14 years. They have three children: Andrew, 24; Sara, 21; and Caroline, 12. Mrs. Martin is a teacher at the Cambridge School in Pennington.

Acting Commissioner Bob Martin’s January 27, 2010 message to DEP Employees

Dear DEP Team:

I want to send a quick note to all of you to introduce myself and to thank you all for a very warm welcome.

I am very honored to be your new Commissioner and to lead this wonderful organization. While I’ve only been here 6 days, I see many good things happening here, and a very talented group of professionals. At the same time, I do see things we can do better and must do better to fulfill Governor Christie’s agenda for action.

Like the Governor, I am personally committed to ensuring that the DEP protects New Jersey’s water, air, land and precious natural resources, and that we rapidly and predictably issue permits, clean up contaminated sites and ensure we protect our treasured open space for future generations. Additionally, our regulations and decisions need to be based on sound science, facts and a robust cost/benefit analysis. We will also continue to vigorously enforce the environmental laws of this state to protect the health and safety of all our citizens. 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.

My style is to be open and honest and to work with all of you as a team. 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.

I plan on walking through most of our locations over the next few weeks to meet as many of you as possible (I think I’m up to about 3 floors completed at 401 E. State) and will continue walking around our Trenton campus for an hour or so most days. A little later in my tenure I also plan to visit as many of our offices, parks and historic sites as possible located outside of Trenton.

There are a lot of very talented people here and I want you all to be part of the solution in improving our operations, efficiency and service to the public.

My commitment to all of you is that I will work as hard as I possibly can to make DEP a great place to work while we continue to protect the environment of this beautiful State. Most importantly, I will always listen and my door is always open.

Thanks!

Bob Martin
Acting Commissioner

[Update: EPA reply below]

The Bergen Record reports today that EPA is using twitter and facebook to interact with residents of Pompton Lakes on the Dupont site. (and see this).

I don’t want EPA tweets. I want EPA enforcement actions, financial resources, and strict oversight of NJ DEP.

So, I thought I’d test that EPA commitment to social networking and go directly to EPA with this baker’s dozen of easy questions. We will keep you posted on EPA’s reply:

Dave – a few questions:

1. have PL residents filed NJ Spill Fund claims to receive compensation for property value reductions associated with DuPont contamination?

2. Are residents aware that they are eligible to do so? DEP not likely to provide that advice, because they are seeking to minimize claims against that fund. Outrageously, DEP complained in December 14, 2009 legislative testimony about how new notification requirements to residents near toxic sites were increasing Spill Fund claims. Spill Fund revenues come from a very small surcharge on major corporate polluters, primarily the oil and chemical industry. If DEP cared about protecting people, they would publicize this information and inform residents. But instead, DEP protects polluters by keeping the Spill Fund a secret to avoid public pressure on raising the surcharge when it becomes obvious that claims greatly exceed funds. DEP Guidance to the public on how to file a Spill Fund claim is limited. (See the above link to Spill Fund regulations and below end note for Spill Fund eligible reimbursements for “damages“.)

3. Is EPA willing to help residents with real estate appraisals to document these reductions? (see Bergen Record’s “Pompton Lakes Plume Hurts Property Values”

4. At the Jan. 25 public hearing, there were many questions about why it took so long (until May of 2008) for DEP to “discover” the vapor intrusion problem and notify residents. Do residents understand that the “phased approach” under the NJDEP Vapor Intrusion Guidance (and RCRA guidance) is what caused the delays?

5. Are residents aware that DEP knew of the vapor problem and that then existing groundwater standards and remedial approaches (i.e. passive remedy) were not protective of public health risks – on a statewide basis and at the Commissioner’s level – way back in February 2002 (I worked for the Commissioner at the time on this and still have the warning memo to Commissioner Campbell. Glad to share it if you are interested – or view the 2002 DEP Vulnerability Assessment – see page 5, final paragraph “Indoor air from contaminated groundwater“).

6. Are residents and EPA aware that NJ DEP adopted changes to the VI Guidance to accelerate indoor air sampling at “sensitive receptor” sites (i.e homes, schools, daycare center) in August 2009, but reversed those changes in November 2009?

7. So, is EPA willing to modify the RCRA VI Guidance’s “phased approach” (also known as “outside/in”) and accelerate indoor air sampling in Pompton and elsewhere in NJ for sites that may impact “sensitive receptors”, at least to the degree that DEP did in August 2009 Guidance revisions? Or pressure DEP to revise NJ VI Guidance and restore the August improvements?

8. Has EPA examined potential vapor migration along subsurface infrastructure? Why would vapor only follow plume and not infrastructure? If vapors are close to surface, don’t they seek path of least resistance, like all fluids? If so, vapor is omni-directional.

9. Do you have the side by side comparison of RCRA Corrective Action program versus Superfund cleanup I requested at the public hearing? BTW, has NJ received full EPA delegation for the RCRA Corrective Action program?

10. Do you have information on the details of any EPA and DEP enforcement act against Dupont that I requested at the hearing? (e.g. fines, penalties collected) Have any RCRA or Clean Water Act enforcement actions been taken by EPA? Has DEP issued ANY NJ Spill Act or Water Pollution Control Act violations against RP Dupont?

11. Has NJ DHSS agreed to do a comprehensive epidemiological study, as I requested at the hearing?

12. Has NJ DHSS agreed to provide health screening medical physicals and sampling of blood, urine, hair, fingernails, and tissue to assess historic exposures?

13. Has EPA made a final decision on RCRA versus Superfund? If not, When will that decision be made?

Appreciate your favorable consideration and timely written replies.

Here is what damages are eligible for compensation under Spill Fund:

“Damages” means all cleanup and removal costs and all direct and indirect damages actually incurred, no matter by whom sustained, arising in connection with a discharge of a hazardous substance, or in connection with a threatened discharge, which costs and damages include, but are not limited to, the following:

1. The cost of restoring, repairing or replacing any real or personal property damaged or destroyed by a discharge, any income lost from the time such property is damaged to the time such property is restored, repaired or replaced, and any reduction in value of such property caused by such discharge in comparison with its value absent the discharge;

2. The cost of restoration and replacement, where possible, of any natural resource damaged or destroyed by a discharge;

3. Loss of income or impairment of earning capacity due to damage to real or personal property, including natural resources destroyed or damaged by a discharge, provided that such loss or impairment exceeds 10 percent of the amount which the claimant derives, based upon income or business records, exclusive of other sources of income, from activities related to the particular real or personal property or natural resources damaged or destroyed by such discharge during the week, month or year for which the claim is filed;

4. Loss of tax revenue by a state or local government for a period not to exceed one year, due to damage to real or personal property proximately resulting from a discharge (which one-year period, in the case of lost real property tax revenue, commences on the effective date of the first reduction in the assessed value of real property for damage proximately resulting from the discharge);

5. Interest on loans obtained or other obligations incurred by a claimant for the purpose of ameliorating the adverse effects of a discharge pending the payment or settlement of a claim;

6. Such sums as may be necessary to reimburse a local unit for costs incurred in an emergency response action taken to prevent, contain, mitigate, cleanup or remove a discharge or threatened discharge of a hazardous substance; and

7. Costs for legal services necessary for remediating contamination, including attorney’s fees for contracting or obtaining permits, drawing of ordinances, acquisition of land and rights of way, drawing and administering construction contracts, and for legal work connected with necessary financing for the construction by a municipal utility authority of a new water system. Damages do not include costs normally associated with the listing, sale and transfer of property which is the subject of a claim.

[Update: to his credit, Dave Kluesner from EPA replied immediately, although he dodged all the substance and by failing to commit to a timetable to provide responses, he attempted to shift the onus on me to monitor EPA’s followup. I asked several of these questions at the public hearing weeks ago. Yes they are relatively technical questions, but Dave works for EPA, a technical regulatory agency. These are not good signs:

Bill – Hi.  All very technical questions that I will send to EPA and NJ DEP technical team working on Pompton/Dupont.  It may take a bit of time to respond due to the nature of the questions and the current work load that the project team is managing.  Please nudge me if you don’t hear back in your desired timeframe.
_______________________________________________________
David Kluesner  –  Public Affairs
U.S. EPA  –  Manhattan Office
290 Broadway, 26th Floor  /  NY, NY 10007
212.637.3653  /  http://www.epa.gov/region2