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Corzine Clean Air Proposal Survives Christie Red Tape Review and Cost Benefit Tests

[Update: I’d like to clarify an important point I left implicit in the initial post. In a March 8, 2010 post, I posed the question:

So what’s it going to be?

Will DEP be allowed to adopt the science based rule they proposed mandating reductions to 500 ppm by 2014 and 15 ppm by 2016?

Or will oil industry lobbying of the Regulatory Czar Guadagno block all or part of the DEP proposal?

Dena Mottolla of Environment NJ and I attended and spoke forcefully at the “Stakeholders meeting” on these rules. By attending the meeting, offering up policy and political arguments in support of the rule, and writing about the oil industry lobbying threat (which no mainstream media outlets did), we like to think we helped get the word out, galvanize public opposition, and stiffen the spine of DEP Commissioner Martin. This is what sound advocacy backed by accountability can accomplish. Kudos also to Environment NJ for their organizing effort].

DEP Commissioner Bob Martin announced today that DEP adopted last year’s Corzine administration proposal to lower the sulfur content of fuel oil.

The rules are an important component of NJ’s clean air strategy. They were supported by US EPA and environmental groups, and were strongly opposed by the oil industry.

The proposal was frozen by Governor Christie’s Executive Order #1 90 day regulatory moratorium, reviewed by the Red Tape Review Group, and subject to a “Stakeholder review”, new cost benefit analysis, and other so called “common sense regulatory principles” mandated under Executive Order #2.

The move bolsters Martin’s independence from Lt. Governor Guadagno, who could have blocked the proposal.

Adoption of the rule as proposed also validates DEP’s professionals, who proposed a science based rule whose public health benefits far exceeded industry compliance costs.

The adoption extinguishes a threat to the rule, which I wrote about on March 8 during the moratorium, in:”Oil Industry Seeks Clean Air Rollback Under Christie Moratorium:

Today, DEP held a stakeholders meeting to discuss another important clean air rule blocked by the moratorium. Keeping with the war metaphor, let’s call this one subject to extraordinary rendition to a black site somewhere in the Lt. Gov.’s Office.

This particular clean air rule applies to fuel oil and has been under development for over 5 years. It is part of a regional air pollution control strategy endorsed by 11 northeastern and mid-Atlantic states. DEP amended its EPA approved State Implementation Plan (SIP) required under the federal Clean Air Act to incorporate this strategy and set of rules back on June 16, 2008. After much delay, on November 16, 2009, DEP finally proposed new rules that would mandate steep reductions in the concentration of sulfur in fuel oil sold in NJ.

So the oil industry has known this is coming for a long time.

Those fuel oil content reductions are required to reduce air pollution emissions to meet health based standards set under the federal Clean Air Act (see: 40 CFR 51.1002(c)(1).) Those national air quality standards were required to be met by NJ in 2010. There is no debate that the DEP proposal is technologically feasible to meet. In fact, there is pending legislation (A1054 (McKeon)/S1414 (Smith) that would mandate steeper and quicker reductions than those sought by DEP, by imposing the 15 ppm standard by 2011. The DEP rule proposal would mandate a 67% reduction in allowable sulfur, to 500 parts per million by the year 2014, and a sharper 99% reduction to 15 ppm by 2016. The proposal would have dramatic public health benefits, including reducing mortality (i.e. death).

But, not so fast. Huge Oil industry profits are at stake.

To the applause of lobbyists for oil giants Exxon-Mobil, Hess, Conoco Phillips, and backed by cheer-leading of lobbyists for the American Petroleum Institute and the NJ Petroleum Council, the Christie moratorium has thrown a monkey-wrench into the process, disrupting years of work across the mid-Atlantic and New England region.

Despite multi-billion record profits in the oil industry, these giant corporate polluters don’t want to spend money to reduce the death rate their products cause in NJ.

The public health stakes are huge – thus the inflammatory but accurate headline. But there really are lives at stake. Here’s why DEP is requiring that sulfur be reduced: (see page 18-20 of the DEP proposal)

The health effects associated with exposure to fine particles are significant, mainly due to the fact that particles of this size can easily reach into the deepest regions of the lungs.

Significant health effects associated with fine particles exposure include:

• Premature mortality;
• Aggravation of respiratory and cardiovascular disease;
• Decreased lung function and difficulty breathing;
• Asthma attacks; and
• Serious cardiovascular problems, such as heart attacks and cardiac arrhythmia.

The USEPA estimated that attainment of the 1997 annual and daily fine particles standards nationally would prolong tens of thousands of lives each year and prevent hundreds of thousands of hospital admissions, doctor visits, absences from work and school, and respiratory illnesses in children. Individuals particularly sensitive to fine particles exposure include older adults, people with heart and lung disease, and children. The elderly have been shown to be particularly at risk for premature death from the effects of particulate matter. Health studies have shown that there is no clear threshold below which adverse effects are not experienced by at least certain segments of the population. Some individuals who are particularly sensitive to fine particles exposure may even be adversely affected by concentrations of fine particles below the revised 2006 annual and daily standards. (72 Fed. Reg. 20586-20587 (April 25, 2007), Clean Air Fine Particle Implementation Rule) The USEPA is currently reconsidering those standards based on recommendations of its Clean Air Scientific Advisory Committee (CASAC).

According to the most recent Federal and State estimates, 765,125 New Jersey residents have asthma. In 2004, asthma sufferers in New Jersey accounted for 15,679 hospitalizations, which represents approximately one out of every 50 hospitalizations. Of these asthma hospitalizations, 5,175, or about one-third, were children. There were 1,838 deaths due to asthma between 1989 and 2003 in New Jersey. The risk of death from asthma increases considerably with age, with the over-65 population having the highest rates. (see: Asthma in New Jersey Annual Update 2006. New Jersey Department of Health and Senior Services, August 2006 (click on this for document)

SO2 causes a wide variety of health and environmental impacts because of the way it reacts with other substances in the air. SO2 reacts with other chemicals in the air to form fine sulfate particles. When these are breathed, they gather in the lungs and are associated with increased respiratory symptoms and disease, difficulty in breathing, and premature death. Peak levels of SO2 in the air can cause temporary breathing difficulty for people with asthma who are active outdoors. Longer-term exposures to high levels of SO2 gas and particles cause respiratory illness and aggravate existing heart disease. (Sulfur Dioxide: Health and Environmental Impacts of SO2/Six Common Pollutants/Air & Radiation/USEPA. (click on this for document).

Increased ozone concentrations severely affect the quality of life for susceptible populations: children, the elderly, and asthmatics and present health risks for everyone. Exposure to ozone for several hours at relatively low concentrations significantly reduces lung function and induces respiratory inflammation in normal, healthy people during exercise. This decrease in lung function is generally accompanied by symptoms such as chest pain, coughing, sneezing, and pulmonary congestion. (The Green Book Nonattainment Areas for Criteria Pollutants, United States Environmental Protection Agency, as updated August 17, 2007. Click on this for document)

NOx, as a precursor for both fine particles and ozone, will contribute to the health impacts associated with both fine particles and ozone. Ozone exposure can cause several health effects, including irritation of lungs. This can make the lungs more vulnerable to diseases such as pneumonia and bronchitis, increase incidents of asthma and susceptibility to respiratory infections, reduce lung function, reduce an individual’s ability to exercise and aggravate chronic lung diseases.

In addition to these incredible public health benefits, even the cost benefit analysis on the rule documented HUGE net economic benefits, due mainly to all the avoided costs of health care.

So what’s it going to be?

Will DEP be allowed to adopt the science based rule they proposed mandating reductions to 500 ppm by 2014 and 15 ppm by 2016?

Or will oil industry lobbying of the Regulatory Czar Guadagno block all or part of the DEP proposal?

The ball is in Regulatory Czar Guadagno and ultimately Governor Christie’s court

To paraphrase DEP air quality experts: If this rule proposal doesn’t pass muster under the Governor’s Executive Order review process, none will

Commissioner Martin reverses direction: rejects cost arguments and follows science

Reversing the direction of several prior decisions to forego drinking water protections based on: 1) cost ; 2) attacks on DEP science;  and 3) promotion of economic development, DEP Commissioner Bob Martin listened to DEP professionals and environmental groups. Yesterday Martin announced that he denied a petition by local sewer authorities to relax current surface water quality standards designed to protect drinking water supplies. (see also: “Drinking Water Risks Rise – While DEP Ignores Science“)

We broke this story On Aug. 9 with “Sewer Plants Put Drinking Water At Risk – Yet Local Authorities Pressure DEP To Gut Rules“. The sub-headline to that post was this:

DEP: “The nitrate criterion is intended to protect infants from a potentially fatal blood disorder called methemoglobinemia or “blue baby syndrome.”

In these Red Tape regulatory rollback days, victory is just holding the line on current protections. So we’ll declare victory, and thank Abbie Fair at ANJEC and Susan Kraham from Columbia Law School  for an excellent job in catching and responding to this petition.

Jim O’Neill of the Bergen Record wrote a good story about that today (see: DEP denies request to ease water treatment rules). Here’s the money quote from that story, literally echoing our sub-headline:

[DEP Commisioner Martin] noted that infants who drink water containing nitrate above the maximum level allowed under federal and state drinking water rules — 10 milligrams per liter — “could be come seriously ill and, if untreated, may die.” [My Note To Bob: new science suggests adverse health effects, including cancer, far below the current 10 mg/L standard, see this  EPA Federal Register notice discussed below.] 

But from the outset, the sewer authority petition was a non-starter.

Aside from putting drinking water at risk from additional pollution, it blatantly violated both state and federal Clean Water Acts. It would have been blocked by US EPA even if DEP did approve it.

Which leads to the question: what possibly could have motivated the sewer authorities to even file it?

Did someone at a political level in the Christie Administration give a green light to this idea?

Or did AEA try to jump on the Red Tape Rollback Wagon and get a piece of the Christie Executive Order #2 cost/benefit regulatory relief?

I would love to know the inside story on that. Would any AEA whistelblowers like to annonymously step forward?

Politics aside, the issues of nitrates and unregulated chemicals – such as pharmaceuticals - entering our water supply are very serious public health and ecological concerns.

Ironically, the AEA petition came just as the drought emerged. That was amazing timing, because the media and people think of drought only in terms of water quantity. But, the AEA petition has shown a bright light on the water quality aspects of drought, because river water has become too polluted to use to refill reservoirs.

Perhaps the realization will sink in the NJ drinking water systems take partially treated wastewater from sewage treatment plants and industrial discharges to the river and use that same water for drinking water supply.

So, now that the press, the public, and DEP Commissioner Martin have become aware of the problem, will there be renewed efforts to enforce and strengthen current surface water quality standards, develop new drinking water standards or treatment requirements for scores of unregulated chemicals that poison water supplies and pollute ecosystems, and ratchet down on pollution discharges?

If so, we have a long list of serious problems and needed reforms to strengthen protections, enforce existing standards, and close loopholes. (see this for some)

Will Commissioner Martin seize this moment to move forward on a clean water agenda, instead of continuing the current rollback policy?

We’ll keep you posted.

[Update: I didn’t want to fail to note this little bit of revisionism by the polluters.

The AEA petition was not based on the anticipated ratchet down on the current 10 mg/L nitrate standard. New scientific  evidence suggests that the current standard is not protective of public health or ecological concerns. AEA has been resisting that science for years and dragging their feet in upgrading pollution controls.

In fact, just the opposite: The AEA move was designed to preempt that ratchet down and dodge new pollution control treatment requirements. It was not designed to open any dialog about them.

In fact, I recently wrote about both new science on human health risks and EPA drinking water MCL’s and ecological concerns. I discussed these issues at length with reporters. So I found this ending quote from the Bergen Record story extremely ironic:

Given recent studies cited by the federal Environmental Protection Agency that indicate nitrate is probably carcinogenic to humans, sewerage authorities are expecting nitrate cleanup standards to become tighter down the road and were hoping to start a dialogue with the DEP about easing restrictions in cases where the agency discharges into a stream not used for drinking water, Gulbinsky said.

If Gulbinsky said that, she is lying - the AEA petition was specifically targeted at streams and rivers that are currently used for water supply. It targeted the water supply intakes as an alternative point of compliance!

You Unlock This Door With the Key of Imagination – Beyond It Is Another Dimension – You’ve Just Crossed Over Into The Legislative Zone!

The Assembly Environment and Solid Waste Committee heard testimony today regarding State mandates imposed upon local entities.

It was a 4 hour marathon (you can listen to testimony here, although having endured it all and been given the distinct high privilege and honor of being chosen as the last person to testify, I wouldn’t recommend doing so.)

Let me summarize by saying I heard more absurd and flat out jaw dropping stupid statements in one day, than virtually my entire 25 year Trenton career.

I leave you with my own indecision about what was worse: the NJ Health Officer’s Association opposition to new lower child blood lead rules; or Assemblyman Rudder’s quote:

We need a moratorium on great ideas.

I’ll sign off for the nigth and write this thing up tomorrow after I have a chance to reflect and chill.

Getting Warm. Source: Rutgers, State Climatologist Robinson. Presented at DEP drought hearing (8/25/10)

[Update: 9/2/10 – today’s Star Ledger story by Maryann Spoto is another example of deep denial. It manages to report on 3 global warming driven phenomena (record heat wave, drought, and hurricane Earl) without ever even mentioning global warming. Now that is hard to do! (but of course, La Nina has gotten attention)]

Update: 8/29/10 – more evidence: “Numbers confirm it: Summer was a scorcher” ]

DEP held a public hearing yesterday on whether to expand the current drought watch for 5 northeastern counties to a drought warning or emergency.

Those steps would trigger mandatory water conservation requirements and other stronger supervisory measures by DEP to reduce demand and better control the management of public water supplies by private water companies and local utility authorities.

Last week’s heavy rainfall – 3-5 inches in some northeast portions of the state where the reservoirs are –  temporarily helped moderate DEP’s drought indicators. DEP bases drought status on those indicators, and professional judgement.

The indicators are incomplete and misleading. They need to be revised to address underlying drought causes and be better suited to design and evaluate management measures.

Steve Doughty (L), NJDEP stays on script – State Climatologist Robinson (R) ducks tough issues.

The “million dollar rainfall”  (per quote by State Climatologist Robinson) did absolutely nothing to change the underlying systemic, or structural, drought conditions that have result in repeated cycles of droughts and floods.

Those conditions primarily relate to:1) hydrology (e.g. rainfall, temperature, land use/land cover, stream flows, aquifer levels, etc), 2) infrastructure (reservoir storage, distribution infrastructure) and 3) increasing demand.

Each factor in the drought equation is bad and getting worse. I described those conditions in this recent post.

DEP’s official position is “we’re not out of the woods yet”, so let’s wait and see before either rescinding the drought watch or ramping up to a drought warning.

But DEP will sit on the sidelines and do nothing as private water company United Water meets with political officials in Bergen County to discuss lifting the mandatory water conservation measures imposed in Bergen County  – a perfect illustration of exactly who is in control of NJ’s public water supplies.

Neither DEP, State Climatologist Robinson, or water purveyors were willing to talk about the underlying causes of structural drought or the need to adapt to global warming or the need to improve pollution controls and water quality.

In fact, they intentionally avoided those topics – Steve Doughty of DEP, by his own words,  drifted “off script” only once, and it related to Passaic/Pompton/Ramapo water quality and pumping to Wanaque reservoir. Doughty  quickly caught himself, and got back “on script”. So, the hearing was totally useless as far as I’m concerned.

Given that DEP is a regulatory agency, I testified and added the following issues to the list of issues DEP refuses to discuss in public:

1. DEP needs to publish data on water demand. As they say in business, “what gets measured gets done”.

The public has a right to know how water is used, who is using it, what they are using it for, and where the uses occur (e.g. in what economic sector and geography urban, suburban, rural) . DEP needs this data to manage water supply. It also would be a good benchmark to compare how various water companies were performing.

2. DEP needs to exert more regulatory control over private sector and local water purveyors. Right now, first come first serve anarchy prevails.

3. Infrastructure needs assessment must be part of the discussion. I highlighted this week’s hearing in  Washington Township (Morris Co.) where the local system loses 40% of water to leaks. Since then, major water lines have broken, leading to boil water alerts and other problems.  NJ’s infrastructure is old and getting older. How will we pay for upgrades?

4. Infrastructure investment needs to be explored – water user rates are regulated by BPU tariffs and DEP regulations. Surcharges need to be considered as a means of generating much needed revenue for investment in maintenance and upgrades.

5. Agricultural uses need to be part of the discussion and must be regulated just like all other water users.

6. The current 100,000 gallon per day use threshold for triggering DEP water allocation permitting needs to be reduced. DEP policy and allocation environmental reviews must be done in consideration of cumulative water withdrawals. DEP must develop and impose water budgets and specify whether this needs legislative or regulatory change.

7. What ever happened to the Eco-Flow Goals initiative? That project was supposed to set flow limits for NJ’s streams and rivers to protect aquatic life uses, and things like wetlands and trees and other vegetation.

8. DEP needs to establish a policy to set restrictions on inter-basin transfers by water companies. United Water mentioned ratepayer fairness, but there are significant environmental components to these transfers.

9.  DEP needs to make allocation policy between competing water uses a major part of the public for discussion. This is critical and currently done behind closed doors at DEP, with the water companies and no public interest representation. DEP needs to comply with the Water Supply Planning process

10. DEP needs to revise drought indicators – things to consider include global warming driven changes (temperature, rainfall, vegetation) and landscape change (huge change in land use/land cover has altered fundamental underlying hydrology).

And will someone tell DEP staff not to bring bottled water to Public Hearings?

Steve Domber, geologist,  NJ Geological Survey

[Update #2 1/12/11 – – here what it all means – from Dupont Pompton lake mercury sediment cleanup plan:

NJDEP has promulgated soil remediation standards for residential and nonresidential exposure. However, no promulgated soil standards are available for ecological receptors.

NJDEP does not have any promulgated sediment criteria for evaluating potential human exposure or for ecological receptors. For ecological receptors, NJDEP’s 1998 sediment guidance is available to evaluate sediment quality within Baseline Ecological Evaluations as part of implementing the Technical Requirements (N.J.A.C. 7:26E). However, in accordance with the sediment guidance (NJDEP, 1998), these values are not cleanup standards.

Christie has made sure DEP will never have ecological standards for soil or sediments.

Update #1: Governor Christie signed the bill into law on 11/3/10 as P.L. 2010, c. 87. That means that there will be no ecologically based DEP cleanup standards in DEP’s site remediation program.]

With no debate and under the guise of eliminating red tape” and “inactive and outdated boards and commissions”, Governor Christie is about to give NJ toxic polluters a major gift they have sought since 1993. (see Star Ledger “coverage”)

The bill, A2851, passed yesterday by the Senate and now on the Governor’s desk, contains a stealth provision buried in the details that would eliminate the “Environmental Advisory Task Force” created in 1993. Here is the provision that would be deleted from current law by the bill:

[The department shall not propose or adopt remediation standards protective of the environment pursuant to this section, except standards for groundwater or surface water, until recommendations are made by the Environment Advisory Task Force created pursuant to section 37 of P.L.1993, c.139. Until the Environment Advisory Task Force issues its recommendations and the department adopts remediation standards protective of the environment as required by this section, the department shall continue to determine the need for and the application of remediation standards protective of the environment on a case-by-case basis in accordance with the guidance and regulations of the United States Environmental Protection Agency pursuant to the “Comprehensive Environmental Response, Compensation and Liability Act of 1980,” 42 U.S.C. s.9601 et seq. and other statutory authorities as applicable.]

The Environmental Advisory Task Force was supposed to develop ecological impact and cleanup standards to protect natural resources and wildlife from toxic pollution from spills and toxic waste sites.

The need for ecological standards and huge cleanup liability are illustrated by the Gulf oil spill, where fisheries, wildlife, and wetland systems have been destroyed by the BP oil spill.

NJ’s wetlands, fish, shellfish, birds, and other wildlife also have suffered from toxic and bioaccumulative chemicals, which have led to consumption advisories, restrictions, and closures of fisheries.

Under the 1993 law known as S-1070, that weakened NJ’s cleanup program, DEP was prohibited from developing ecological based cleanup standards until the Task Force had issued scientific recommendations.

The Task Force was strongly opposed by the chemical industry and for years they were able to block appointments and formation of the Task Force.  As a result, the Task Force never met.

And as a result of that paralysis, DEP has never developed ecological standards. Failure to adopt ecological cleanup standards has forced DEP to conduct site specific reviews, or rely on outdated and inappropriate lax EPA standards that are poorly suited to NJ and beyond NJ’s control.

This has let polluters off the hook for billions of dollars of “natural resource injury” cleanup liability.

Assemblyman Burzichelli (D-Valero, South Jersey)

[Update: the bill was sponsored by Assemblyman Burzichelli, who is working with polluters and engineering environmental rollbacks as chair of the Assembly Regulatory Oversight Committee and member of the Christie Red Tape Review Group. End Update.]

Those historical problems are made far worse by NJ’s new “Licensed Site Professionals” law, which privatized cleanup decisions. LSP’s have little or no expertise in ecological impact analysis. In the absence of DEP ecologically based standards, LSP’s will be free to make cleanup decisions, even without DEP oversight.

Of course, NJ’s stressed ecosystems and wildlife will suffer additional damage, while polluters are left off the hook and LSP’s are unaccountable to any effective DEP oversight (with no standards, it is all a judgement call. Do you trust LSP’s, paid by polluters to minimize cleanup costs, to exercise prudent judgement to protect wildlife and ecosystems?).

Click on this for details and call and write to demand that the Governor conditionally veto the bill to remove this provision:

Ecological Standards ignored for 16 years – polluters dodge billions in liability

[Update: In another gift to toxic polluters that undermines public oversight of how the chemical industry and DEP failed to implement the goals and toxics use reduction requirements of the groundbreaking 1991 “Pollution Prevention Act”, the bill also would eliminate the “Pollution Prevention Advisory Board”.

Here is the composition and powers of that Board, which, just like the Environmental Advisory Task Force, was fiercely opposed by the chemical industry and thus was never formed. Note that the PPAB has 3 ENVIRONMENTAL GROUP MEMBERS. What have those groups done to oversee implementation of the PP Act for the last 19 years and why are they not up in arms about this?