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Sewer Authority in DEP Commissioner’s Home Town Balks at Cost of Pollution Controls for Toxic Arsenic

[Update: 9/2/11 – Jim Waltman reports that last night in Hopewell Borough, he was able to convince Council to edit out all the bad stuff, similar to Hopewell Township Resolution.

The ball is now in DEP’s court – let’s hope they agree to hold a public hearing and stand by their draft NJPDES permits for the Hopewell plant and the Pennington plant. – end update]

Last Monday night (8/22/11), a stealth move by the Stony Brook Regional Sewerage Authority (SBRSA) to convince the Hopewell Township Committee to back their attack on a draft DEP clean water permit failed.

Fortunately, the SBRSA’s move was detected by Stony Brook Millstone Watershed Association Director Jim Waltman.

Waltman forwarded a proposed Township Committee Resolution to me late Monday, just prior to the Committee’s hearing.

I was able to attend the hearing and – after extended debate – ultimately convinced the Township Committee, with the help of Committee-woman Vanessa Sandom, to significantly revise the proposed Resolution that had been placed on the agenda at the request of the SBRSA.

(water wonks out there can watch debate. I introduced the issue during the general public comment period from time 55:55 – 59:10. Later, there was an extraordinary more detailed 50 minute debate on the resolution from time 2:37: 40 until 3: 25:00).

Before we get to the specifics of the DEP NJPDES permit dispute, some history and context is in order.

Ironically, Hopewell Township – locus of the infamous mid 1990’s Merrill Lynch, State Plan, ELSA Sewer Line land use water resource battle – has long been a leader in water resource protection.

The Hopewell local Master Plan and zoning code are based on protection of water quality and quantity.

In fact, the Hopewell zoning scheme serves as a statewide model, having survived legal challenge and been upheld in a precedent setting decision by well respected Mercer County Superior Court judge Linda Feinberg.

Hopewell also has a reputation for open and deliberative decision making, based on respect for public input, science, and facts.

So, I was somewhat surprised by what was going down. Here’s the story.

In the course of routine 5 year renewal of their water pollution permits, the DEP had proposed a revision to the NJPDES permit effluent limits for the SBRSA’s Pennington and Hopewell plants.

The permit renewals noted that important previous water quality restrictions of phosphorus discharges had been “stayed” by a DEP March 2007 letter.

The DEP permit also postponed important needed treatment upgrades until the long delayed “Raritan TMDL” was completed. That TMDL study is almost a decade old, and many years behind schedule (the Raritan was a priority on the DEP’s 2004 2 year TMDL scheule).

So in my view, the SBRSA was inappropriately rewarded for a strategy of foot dragging, using a series of delaying legal and technical challenges to all DEP efforts to upgrade the SBRSA antiquated 30 year old treatment plants.

On top of this “flexibility” by DEP, SBRSA was being rewarded by an almost 50% expansion in pollution discharge. The DEP was allowing the SBRSA Pennington plant to increase its flow from 300,000 gallons per day, to 440,000 GPD, thereby greatly magnifying pollution impacts on the already impaired Stony Brook and spurring new development that would provide additional non-point source pollution.

But, the SBRSA didn’t see it this way.

In response to DEP’s permit renewal, the SBRSA attempted to make a frontal assault on numerous DEP clean water policies, surface water quality standards, and permit regulations.

SBRSA strongly objected to the DEP’s proposed arsenic limit, and in doing so challenged the way statewide water quality standards are set and implemented in the permit program.

This challenge was based solely on the costs of compliance, which SBRSA claimed would cost $15 million for construction of a reverse osmosis treatment system.

Given the current debate on Christie’s policies to relax environmental regulations to reduce compliance costs, the SBRSA move was a significant threat not only to the local streams that receive discharges from the SBRSA plants, but also to DEP’s statewide water quality standards and permit regulations and policies.

Those historically stringent DEP standards and policies are under attack right now on similar cost grounds.

Because the SBRSA serves the home town of DEP Commissioner Bob Martin, local threat was magnified greatly.

It was obvious that the Committee was unaware of the issues at play in the complex DEP permit and SBRSA drafted Resolution .

The originally proposed SBRSA drafted Resolution openly attacked DEP standards:

Whereas, the NJDEP has issued draft permits which include discharge parameters that will obligate the SBRSA to significant plant upgrades which could cost between $10 nd $20 million and which costs will be born, in part, by Hopewell rate payers; and

Whereas, the SBRSA has represented to Hopewell Township that some of the discharge criteria are more restrictive than NJDEP drinking water standards, that no consideration has been given by the NJDEP to dilution in the waterways receiving treated effluent discharges that is prior to any potable water intake and that these factors contribute greatly to the cost of upgrades.…

Now Therefore be it Resolved by the Township Committee as follows:

1. That the Hopewell Township supports the SBRSA’s request and comments that the NJDEP consider establishing a more reasonable discharge criteria in its draft NJPDES permits for the SBRSA Hopewell and Pennington treatment facilities..

The SBRSA and Hopewell Township engineer Paul Pogorzelski quietly drafted a Resolution opposing a new pollution discharge permit for the Pennington sewage treatment plant.

Although the wording of the proposed Resolution was extremely broad and could have applied to numerous pollutants discharged by SBRSA, the main controversy involved the effluent limit DEP set for arsenic, a known human carcinogen.

Arsenic is naturally occurring in the geology under Hopewell Township, and I’ve been told that the natural background concentrations found in all local drinking water is 2 parts per billion (ppb).

The NJ surface water quality standard for arsenic in 0.017 parts per billion. The SWQS standard is based on lifetime individual cancer risk of 1 in a million, using scientific risk assessment methodologies that assume long term consumption of contaminated drinking water.

The NJ drinking water standard for arsenic is 5 ppb.

DEP proposed a SBRSA effluent limitation of 0.07 parts per billion for arsenic.

That is almost 100 times lower than the 5 ppb drinking water standard, but 4 times higher than the DEP surface water quality standard for arsenic.

The conflict between DEP surface water quality standards and drinking water standards has long been a matter of dispute.

That dispute is now being driven by Governor Christie’s “regulatory relief” policies.

SWQS are set by DEP scientists based exclusively on science – they do not consider compliance costs, analytical detection limits, or the availability of treatment technology to meet the standard.

In contrast, NJ drinking water quality standards explicitly consider treatment technology and analytical detection limits. Because drinking water standards are developed by the NJ Drinking Water Quality Institute, an external policy group that includes representatives of the water companies, they indirectly consider costs.

DEP recently proposed a “waiver rule” to allow the Commissioner to waive certain regulatory requirements. Confirming our fears, the SBRSA representative stated that they had met with DEP upper management and been promised a waiver from these requirements.

Just as troubling, DEP Commissioner Bob Martin has ordered complete review and reconsideration of all DEP standards, and questioned their scientific basis.

Commissioner Martin has tasked at least 2 work groups within DEP to consider the economic costs of compliance with standards.

Governor Christie issued Executive Order #2 which adopts a policy of “regulatory relief” and mandates that all regulatory standards be based on cost benefit analysis.

So this SBRSA permit dispute could be used by industry lobbyists as a “horror story” to influence ongoing and very controversial policy deliberations.

At the same time, at the local level, the SBRSA had long delayed and dragged their feet in upgrading pollution control treatment technology required to restore the polluted Stony Brook, and meeting a TMDL schedule.

I reminded the Township Committee of all this history, context, and regulatory complexity.

I urged the Committee to stay out of this complex regulatory dispute, which was exclusively DEP’s job, not the Township’s.

That approach was rejected.

So I urged the Township to revises the Resolution to be more balanced in the public interest, and to ask DEP to hold a public hearing so that facts could be developed and residents have an opportunity to participate.

Thankfully, Committee woman Sandom agreed, and the Resolution was revised in a way that eliminated the SBRSA criticism of DEP and merely requested a public hearing .

The public comment period on the DEP SBRSA NJPDES permit apparently closes September 6.

I have not had a chance to review the NJPDES permit yet, so we hope to bring you more detail in future posts.

We dodged a bullet here, but the larger policy problem will not go away.

Lets hope that DEP grants the public hearing request and supporters of clean water turn out.

Give Me that Paintbrush – Sign Says No Paintbrushes Allowed Here

True story – no paintbrushes – and no cameras allowed either! See:

Citizens’ Cameras Taken During Rep. Chabot (R-OH) Town Hall

Please don’t think these outrageous police state tactics just happen out in Red State Ohio.

Similar things have happened right here in liberal Blue state NJ at recent:

• NJ Senate hearings,
• DEP  retaliatory disciplinary hearing for a nuclear whistle-blower, and
• public meetings at DEP:  DEP Commissioner Martin Uses State Police To Eject Environmentalist From Polluter’s Advisory Group Meeting

[Update #2 – 8/26/11 – Bergen Record coverage puts Christie if a favorable light by a headline that makes it appear that he was initiating positive action, instead of reacting to and opposing a legislative initiative. Story also makes enviro’s look silly for making such a big deal out of nothing: Christie proposes 1-year gas drilling ban.

Writer Scott Fallon buried the most significant news – broken by another devastating NY Times story: Geologists Sharply Cut Estimate of Shale Gas, a followup on recent story that exposed fracking as a “Ponzi scheme” -  in the final paragraphs:

Christie’s action comes as federal scientists have discovered the amount of natural gas in the Marcellus Shale, which stretches from upstate New York to Tennessee, is about 80 percent less than originally estimated.

OOPS! Reserve estimates off by 80%! Economics of a Ponzi scheme!

So this is ANOTHER example of how NJ ENGO’s – via their “ban campaign”” – are diverting from the real issues about fracking.

Instead of NJ press reporting on 80% errors and Ponzi schemes, they cover meaningless symbolic gestures that make Christie look good. Heckofa job! – end]

Update #1: The Governor issued his CV, but initial press reports were inaccurate. The moratorium is 1 year, not 5.

Please read the CV (click here). The CV will frame the media coverage.

Note, how cleverly the Governor points out the fact that there are no fracking drilling proposals in NJ.

Observe how he deflects accountability by pointing the finger at Washington DC by noting the ongoing federal EPA study, knowing full well that Obama supports fracking.

Note that,  just as I feared, how the bill and the ban strategy by enviro’s actually allowed  the Governor to dodge the following points, all of which are the most important. :

1) DRBC vote

2) management of billions of gallons of toxic and radioactive waste-water;

3) intensive use of water – billions of gallons – needed for NJ water supply and ecological and recreational uses of the Delaware River

4) huge amount of land disturbance – which will harm habitat, reduce Delaware River water quality, and increase already unacceptable  downstream NJ flooding risk

5) significant negative economic effects on investments in efficiency and renewables

6) huge disruptions and destruction caused by pipeline construction

7) the CV mentions, but in error, alleged lower greenhouse gas emissions – end update

News reports indicate that today Governor Christie will conditionally veto the bill that would ban fracking in NJ.

Instead of a ban, the Gov. reportedly will issue a Conditional Veto (CV) in support of a 5 year moratorium.

The Democratic legislature would then have 3 options: 1) seek an over-ride of the Gov.’s CV and impose the ban (an over-ride is highly unlikely to prevail; 2) concur with the Gov.’s CV and go with a 5 year moratorium; or 3) do nothing and let the measure die.

So, I thought I’d try to get the real story out ahead of all the spin that is bound to ensue.

We testified on and wrote about that bill as it moved through the legislative process (see: NJ Legislators Look To Block Fracking to Protect Delaware River)

Based on that testimony, we were asked by the Committee Chair to draft amendments that would have put teeth in the bill by banning importation of fracking wastewater (see: Assembly Committee Hears An Unacceptable Fracking Compromise

Wow – a ban. That sounds like a tough pro-environmental measure, right?

Wrong. This is not a half measure “step in the right direction” – this is a no measure, or arguably a setback.

It is a symbolic gesture  that actually has negative consequences – a fracking  political disaster. Here’s why:

1. The bill would have no impact on fracking in NJ.

NJ does not have economically recoverable gas to frack. The bill would ban something that would never happen.

The bill is a symbolic gesture. Both sponsors have admitted that in open legislative hearings.

Even the AP is now reporting that in today’s set up story:

The measure is largely symbolic. Experts say there’s not enough natural gas under New Jersey to drill for.

There is no economically recoverable frack gas in NJ. There are tremendous gas reserves in neighboring NY and PA. There will never be any fracking in NJ.

2. The bill diverts attention from the real fracking issues NJ faces

The real threat to NJ from fracking is from NY and PA drilling in the Delaware Watershed (oh, and did I mention gas pipelines? Or the way artificially cheap gas will kill efficiency and renewables?  Or that the climate benefits of gas are greatly exaggerated and lifecycle carbon emissions may be as high as coal? )

The Delaware River Basin Commission (DRBC) has a moratorium on fracking in the watershed in place right now.

That moratorium would end upon adoption of proposed flawed regulations.

Christie’s DEP Commissioner sits on the DRBC and is supporting proposed draft DRBC regulations.

Those DRBC regulations are seriously flawed and their adoption by DRBC would end the current DRBC moratorium on fracking.

Lifting the current DRBC moratorium would open the door to over 18,000 wells in NY and Pennsylvania, according to DRBC. Those wells would use over 100 BILLION gallons of water; generate more than 25 BILLION gallons of toxic hazardous wastewater with unsafe levels of radioactive contaminants; and destroy over 150,000 aces of forests and farms, more than all the land protected by the NJ Highlands Act.

3. The bill provides political cover for Democrats.

Both Senate and Assembly Democratic prime sponsors of the NJ fracking ban bill had introduced other bills that would have prevented DEP from approving DRBC regulations  (see point #2 above).

Both legislators abandoned that far tougher bill after pressure from oil, gas, and chemical industry lobbyists.

The Gov.’s Office threatened to veto that bill as an encroachment on his Executive powers.

The Dems were not willing to fight and abandoned that bill – that was the real protection for NJ drinking water and the Delaware River.

To make matters worse, the Dems killed amendments to the symbolic ban bill that would have put teeth in it by banning importation of fracking wastewater. That is a real possibility, as the gas industry seeks options to dispose of hundreds of millions of gallons of wastewater.

The NJ enviro’s did not criticize those moves by the Dems.

4. The bill would have no legal or political impact on other states or the federal government

The only credible argument in support of this symbolic gesture was that it could be a precedent and have an impact on other states.

But PA is strongly backing fracking and NY Governor Cuomo recently cut a deal to greatly expand fracking in NY.

The Obama administration already came out in support of fracking.

5. The bill ends up politically rewarding Governor Christie

ENGO’s drew a line in the sand, really ramped up this issue with flame throwing rhetoric, and demanded a ban. A ban is publicly perceived as an extreme measure.

A 5 year moratorium sounds far more reasonable.

In the press and court of public opinion, Christie will now look like a pro-environment moderate by seeking a 5 year moratorium.

Net result: Christie gets credit for doing nothing, the public is duped, and real problems go unaddressed.

This is what happens when the advocates play these kind of political games. [Clarification:politically, setting the bar so low and rewarding Dems for doing nothing sends a message that you are weak and willing to be used. At the same time, scathing attacks on the Gov. for a CV of a meaningless bill reinforces his belief that enviro’s are lightweights on policy, dupes of the Dems, and that other legitimate criticisms are non-substantive and partisan.]

Worst of all possible worlds here – we all get fracked.

[Update: 9/15/11: As we predicted, Christie accused enviro’s of being partisan and political in today’s APP story on nutrients:

Christie argued that the criticism was political.“There are some folks in the environmental movement who will never give me credit for anything I do, because they didn’t support me in the election and they’re Democrats, so they’ve got a political agenda,” he said.

“afflicted with hear-nothing, see-nothing, do-nothing Government.”

While I’m on the topic of historical legacies, the recent Obama collapse on the debt limit deal sadly reveals that President Obama and many Congressional corporate Democrats are on the verge of destroying the last vestiges of the Democratic party’s New Deal legacy (Bill Clinton did much dismantling, especially in financial regulation and “ending welfare as we know it”) .

Just after my earlier post today, I coincidentally came across this historical gem over at Crooks and Liars: “Why raising the retirement age is a horrible idea”

That post provides an excerpt from the now-famous FDR Madison Square Garden address of October 31, 1936.

Listen to FDR’s timeless and powerful rhetoric – and then compare it to the anemic response of Obama: (hit link to listen).

For twelve years this Nation was afflicted with hear-nothing, see-nothing, do-nothing Government. The Nation looked to Government but the Government looked away. (huge applause)

Nine mocking years with the golden calf and three long years of the scourge!

Nine crazy years at the ticker and three long years in the breadlines! (huge applause)

Nine mad years of mirage and three long years of despair!

Powerful influences strive today to restore that kind of government with its doctrine that that Government is best which is most indifferent.

For nearly four years you have had an Administration which instead of twirling its thumbs has rolled up its sleeves. We will keep our sleeves rolled up. (huge applause)

We had to struggle with the old enemies of peace—business and financial monopoly, speculation, reckless banking, class antagonism, sectionalism, war profiteering.

They had begun to consider the Government of the United States as a mere appendage to their own affairs. We know now that Government by organized money is just as dangerous as Government by organized mob.

Never before in all our history have these forces been so united against one candidate as they stand today. They are unanimous in their hate for me—and I welcome their hatred. (wild applause)

Amen, Bro.

Tea Party Backlash Has Roots in Nixon Administration

Alan Steinberg, former Bush Administration EPA Region 2 Administrator, wrote an Op-Ed, urging he fellow Teabagger dominated Republicans to stop bashing EPA. (See: Republicans must stop their senseless EPA bashing

Steingberg laments current Republican politics, expressing nostalgia for what he sees as the good old days of Republican support for protecting the environment, the EPA, and environmental regulation of business and industry:

You would think that my party, the Republican Party, would point to EPA’s establishment and its subsequent environmental triumphs as a proud GOP legacy. Instead, bashing and trashing the EPA has become a major Washington Republican sport.

Invoking the legacy of Teddy Roosevelt and Richard Nixon, Steinberg repeats the conventional political wisdom on bi-partisanism, and in so doing, himself engages in senseless historical revisionism.

First of all, while EPA was formed in 1970 during the Nixon Administration via Nixon’s July 9, 1970 Executive Order, we must recall that it was widespread public outrage over environmental assaults, political organizing, and huge nationwide protests on the first Earth Day in April 1970 that forced Nixon’s hand.

Yes, the formation of the environmental movement was led by 1960’s hippies, activists, and a counter-cultural intellectual tradition, not the old school blue blooded elite conservationists of the Teddy Roosevelt tradition.

(and Mr. Steinberg, in borrowing words from EPA’s website, obviously doesn’t realize that the Google can document plagiarism is milliseconds. Let’s hope he expects more original work and higher ethical standards of his students at Monmouth University).

And even that initial tepid Republican support rapidly vanished – the backlash was organized just one year later, in 1971 by a close Nixon associate.

This backlash has led to our current state of affairs, where Republicans view their role in the history of environmental legislation of the 1970’s similar to civil rights and Lincoln.

Today’s Republican Party is ashamed of those accomplishments and treats them like the insane grandma in the attic.

When Republicans deny and defile this history, how can it be considered a “proud legacy”?

And what Steinberg calls “bashing and trashing” of EPA and environmental regulations are not limited to Washington DC.

Steinberg should open his eyes and start looking in his own backyard (Trenton, NJ), where current Republican Governor Chris Christie has done lots of “bashing and trashing”  of NJ DEP, environmental regulations, and other “job killing red tape”.

Despite these distortions, I thought I’d send Mr. Steinberg a note of thanks and sympathy:

Dear Mr. Steinberg:

I feel your pain – it must be awful being a Republican with a brain and a conscience. Good old TR Republicanism is long dead and forgotten –

Guess you can either lie with your tea-bagging friends now – or leave the Republican party.

But, although I appreciate the support of EPA and regulations, I must disagree with several aspects of your revisionism – protecting the environment has never really been as bi-partisan as you suggest, Republicans being far too pro-business, anti-government, free market ideologues than even the corporate Democrats (since at least FDR and the New Deal).

Just because current politics have shifted so radically to the far right does not support a conclusion that EPA and environmental protection are a “proud GOP legacy”.

Please remember that Richard Nixon VETOED the Clean Water Act – Congress had to over-ride that veto.

The rise of an organized corporate backlash against environmental regulation was first articulated in an extraordinary 1971 strategy memo to the US Chamber of Commerce titled “Attack on American Free Enterprise System“. The memo was written by then corporate lawyer and future Nixon Supreme Court Justice Lewis Powell.

And you lose all intellectual credibility with that load of crap in support of Bachmann. This praise is so over the top it doesn’t even deserve rebuttal:

“I have written very favorably about her campaign, her successful leadership of the Tea Party caucus, her self-discipline while undergoing venomous liberal media attack, and her first-rate policy insight. I have taken note of her academic success and her vast knowledge of economic theory. I continue to believe that she has the political skills, policy insight, and judgment to be an impressive President of the United States.”

“First rate policy insight”? “Academic success and vast knowledge of economic theory”? Is that some kind of sick inside joke?

What were you thinking?

Bill Wolfe