Clean Air Council Holds Annual Public Hearing Tomorrow at DEP

Too many communities bear a disproportionate share of the pollution burden, as they do to many others. (sic) Too often state decisions are made without keeping that in mind. I will require my administration to develop standards and guidelines and implement them so that cumulative and disproportionate impacts will carry much greater weight in our decisions. ~~~ Governor Chris Christie, quoted in testimony by Dave Pringle, NJEF

Last year’s Clean Air Council annual public hearing focused on environmental justice, cumulative impacts, and air toxics.

Hit this link to read the testimony and Council’s Report and recommendations to DEP Commissioner Martin (and see this for how DEP addressed similar health risks and EJ issues in Paterson)

But you can’t talk about any of that now – this year’s agenda is limited to transportation and small sources.

If you show up to the public hearing at 9:30 am, and sit and listen to 5 hours of technocrats banter, you can stand up (after the DEP Commissioner and half the Council are long gone) and maybe you can speak for up to 10 minutes!

But don’t be intimidated by the experts on the Council and giving presentations – for example of the rigorous testimony that is given, here’s last year’s testimony of Dave Pringle, NJEF (@p.235)

Based on the Governor’s commitments and Dave’s testimony (key excerpt below), some intrepid journalist or policy wonk just might want to ask Dave – or DEP Commissioner Martin – just exactly what “standards and guidelines” DEP has adopted and is “now implementing ” “so that cumulative and disproportionate impacts will carry much greater weight in our [DEP] decisions.”

I do know that the Governor Christie HAS “lifted a finger” – too many times (the middle one, on his right hand)

In his first hour in office, Christie issued Executive Orders that explicitly dictate “regulatory relief” and direct DEP to issue “waivers” for polluters (those are policy terms used in Executive Order #2) and to cut “job killing Red Tape“.

DEP complied with EO#2 and adopted the waiver rule. The Governor also later signed legislation that prohibits DEP from issuing guidance documents (see final version enacted as P.L 2012, c. 215)

I also know that and that DEP has NOT adopted ANY new “regulations or guidelines” or even “methodologies” regarding cumulative impact assessment, disproportionate burden, or environmental justice.

But, without confusing matters with facts, here’s Dave:

“You know old trees just grow stronger, and old rivers grow wilder every day”

If you lie like a rug,

and you don’t give a damn.

You’re never gonna be,

as happy as a clam.  ~~~ John Prine (listen)

Songs and meaning from the man who did Sam Stone and

In Spite of Ourselves and

Angel From Montgomery and

Hello In There and

The Great Compromise and

Illegal Smile and

My Old Man.

Hey kids, I don’t think there are any more meaningful  Easter messages to be had.

View from Pa. of Bulls Island riverfront bulldozing and fill. Note contrast between fill area and natural vegetation (4/4/12).

Another update, in what is becoming quite a saga, provided in 4 parts: 1) Field progress/photos; 2) Regulatory front; 3) assessment and removal of “dangerous trees”; and 4) correspondence.

1. Small field progress – photos

Photos shot yesterday (4/4/12) from the Pennsylvania side show that a silt fence has been installed along the full length of the 450 foot long bulldozed and filled area. Could not see installation, but did see a few hay bales as well.

Last week, only a 100 foot segment had been installed shoddily, prompting reader comments calling it “a joke”.

We will continue to urge removal of all fill and debris and restoration and revegetation. I would guess that there is about at least 1,000 cubic yards of fill/debris, landfilled in an area of about 3/4 of an acre to an average depth of 2-3 feet.

Take a look at and compare the natural riverside floodplain conditions just south of the bulldozed and filled portion:

note difference between shoreline vegetation

And we were pleased to note that the bulldozer and other construction and dredging equipment is no longer stored at the tip of the Island:

Tip of Bulls Island at river inlet to D&R Canal

2. Regulatory Front

We are getting stymied by the regulators and attacked and spun by the DEP Press Office.

They still are sticking with their original half true but fraudulent cover story that this was just “maintenance dredging” permitted by USACE and NJDEP.

That is almost verbatim exactly what the NJ Water Supply Authority (NJWSA) told me, what the Hunterdon County Soil Conservation District told me, and what DRBC told me. So, the agencies are talking to each other.

Sadly, that same spin (and additional false and misleading assertions) was echoed in an email to area environmentalists by a representative from a so called conservation group Delaware River  Greenway Partnership. So DEP has even deployed their funded minions to downplay the problem and mislead activists.

And it is more than ironic that while the Partnership defends the destruction of soil, vegetation, and habitat on the Island,  the Partnership has a DEP funded restoration project on the Island designed to:

Volunteers put in more than 300 native plants. Some, like persimmons and big bluestem grass, stabilize the soil to help prevent future erosion. Others provide habitat and food for the island’s wildlife.

Thankfully, that spin is NOT what the USACE project manager;  the DEP Land Use Enforcement; and D&R Canal Commission staff told me.

So, we still have some integrity remaining in the system.

As we have repeatedly noted – and documented by ground level photos, aerial photos, and site visits – that misleading spin ignores the facts that:

• the D&R Canal dredging violated numerous conditions of the USACE and NJDEP permits (see my letter to USACE and NJDEP enforcement email below); and
• the riverfront bulldozing and fill operation was not permitted and it is unrelated to the permitted dredging project.

Examples of blatant permit violations:

USACE permit condition:

In order to protect anadromous fish species, no dredging shall occur between March 15 and June 30, inclusive, of any year.

In order to protect federally listed bald eagle, no dredging shall occur between December 15 and July 31, inclusive of any year, unless additional consultation between the Corps of Engineers and the US Fish and Wildlife Service takes place for the specific proposed dreading location, and such consultation results in a determination that such work is not likely to adversely affect the species.

All dredged material shall be disposed of at the Rt. 202 site.

FACTS:

I witnessed and photographed dredging on March 10 and March 21. I spoke with and FOIA’d the USACE project manager for all documents and no USACE, NJWSA, USFWS consultations occurred. Dredge material and debris was disposed of along the riverfront. On my March 10 and 21 visits, there were no soil erosion or sediment controls or BMPs installed.

DEP permit conditions that have been violated:

In order to protect State threatened Wood turtle the following conditions are required;

[a-b]

c. No in stream or in canal excavation or dreading is permitted between November 1 to April 1

d. The applicant shall use best management practices incuding, but not limited to the stabilization of all disturbed areas in accordance with the Standards for Soil Eroision and Sediment Control

In order to protect State threatened invertebrate species yellow lamp mussel the following conditions are required;

a.  … canal work shall be avoided from April 1 – June 30 (glochida release) and August 1 thru October 15 (spawning activity)…

c. the applicant shall use Best Management Practices for sediment generation. […]

If the applicant proposes disturbances to any tributaries or their riparian zones beyond what is authorized by this permit, the applicant must obtain either a Flood Hazard Area (FHA) applicability determination or a FHA permit. ]

The Delaware River is a tributary to the D&R Canal. There was fill and disturbance in the FHA. See above facts which document violations of these DEP permit conditions.

In response to filing FOIA request to the USACE; an OPRA to NJ DEP and a phone call to the NJ Water Supply Authority,  I received the USACE and DEP permits.

I filed comments to the USACE on numerous permit violations (see below) and will soon submit a similar another complaint letter to NJ DEP regarding violations of their wetlands GP and failure to secure stream encroachment permits.

DEP, D&R Canal and Hunterdon County SCD have not yet responded to my requests for field inspection reports and enforcement documents.

The Huntco SCS inspector made the same mistake DEP Land Use Enforcement originally did by inspecting only the D&R Canal dredge, ignoring the riverfront debacle. I advised the SCS about this and he indicated he would re-inspect, as DEP agreed to as well (see below, where DEP admits this error).

So, we will keep you posted on all that.

3. Assessment and Removal of “Dangerous trees”

We filed an OPRA on that. DEP requested an extension until today, but has denied my request to review the documents today. More foot dragging.

Here’s a photo of the grove of “dangerous trees” on the northern part of the Island, from the wing dam to the tip. This can give you a sense of the number of majestic trees that are at risk of being cut down:

4. Correspondence

Here is DEP Land USe Enforcement email from 3/26/12 – I’ve highlighted the critical stuff. Note how the DEP enforcement supervisor basically tells me that DEP management and Press office will not allow him to share documents:

Dear Mr. Wolfe:

Tanya Hatten inspected the site on March 13 at which time a violation could not be documented. However the activities depicted in the pictures we received from you and from other sources were not observed during that site inspection. I have concerns not only with what I’m seeing in the pictures, but also compliance with the Department’s wood turtle timing restriction.

I’ve asked Tanya to immediately reach out to the park’s manager and NJ Water Supply, advise them of the timing restriction, and schedule a site meeting as soon as possible.

While you are indeed a member of the environmental community you also constitute a member of the press, as such I think that it’s appropriate that I involve the DEP’s press office. You will be updated on our findings in accordance with the press office and management’s directives.

Armand Perez, Region Supervisor
Bureau of Coastal and Land Use
Compliance and Enforcement, NJDEP

Here is my letter to USACE regarding numerous violations of the conditions of the USACE permit:

Mr. Boyer:

Encap case a “vivid how-to lesson, a playbook for getting money and other favors from the government.“

Jeff Pillets of the Bergen Record is the best investigative reporter in New Jersey.

In Sunday’s Record, Pillets wrapped up the Encap case he broke and has worked on for about 8 years now. I am proud to have contributed to his investigation.

To wrap things up, Pillets summarized the testimony in the corruption trial of NJ Senator Wayne Bryant (D-Camden). Nowhere else in NJ will you read stuff like this (other than Wolfenotes of course!):

Corruption in high places seems so commonplace in New Jersey that few members of the public or media even took notice that a legendary lawmaker was on trial: For four weeks, testimony about secret payoffs echoed in a mostly empty courtroom.

But the mountain of evidence presented in Bryant’s criminal trial reveals more than the alleged misdeeds of a politician on the make. It tells a story about how easily Trenton can succumb to the influence of private interests who understand what levers to pull.

In many respects, the testimony from a parade of lobbyists and old State House veterans amounted to a vivid how-to lesson, a playbook for getting money and other favors from the government.

I agree that corruption in NJ is widespread – but corruption is discouraged, and there are systems in place to prevent, monitor, detect, and prosecute it.

As a result, doing corrupt deals requires stealth and violations of laws, regulations, and abuse of discretion and other ethical strictures.

But not any more –

The DEP waiver rule institutionalizes and legalizes EXACTLY the corruption Pillets disclosed in the Encap case.

The waiver rule invites and institutionalizes exactly the same abuse and will lead to widespread expansion of what is now a limited practice at DEP, literally making that kind of abuse the rule instead of the exception to the rule .

(This corruption is especially likely to occur when the waiver rule is implemented by a Governor who attacks regulations via Executive Order, who considers essential public protections as “job killing Red Tape”, and under a DEP Commisisoner who has no environmental training and views DEP’s mission as “promoting economic development” and treating the regulated community like “customers”).

To illustrate this, consider what I found most interesting in Pillets’ reporting: the role of the DEP.

Pillets’ disclosures show how easily private interests can corrupt DEP, if one knows what regulatory and political levers to pull.

I write about this all the time. But very few people understand how much discretion DEP has and how easy it is to influence those discretionary decisions.

Pillets also reveals how public relations and media are used to divert the media and public’s attention, and how lobbyists spin the underlying corrupt reality.

In just 4 succinct paragraphs, Pillets lays out the inside DEP and PR games:

… They paid one of New Jersey’s most influential public-relations firms to plant favorable letters in local newspapers, to supply ghost-written op-eds for elected officials and to divert the public from focusing on the possible environment hazards of building on contaminated sites. …

Handwritten notes from Wisler’s daily calendar from 2003 through 2006 show dozens of meetings with officials including former DEP head Bradley Campbell and his successor, Lisa Jackson; former Office of Smart Growth director Adam Zellner; former Meadowlands Commission director Bob Ceberio; and Patti McGuire, who served as ex-Gov. Jon Corzine’s deputy chief of staff. …

Campbell, as DEP commissioner under former Govs. James E. McGreevey and Richard J. Codey routinely met with the developers’ lead lawyer as department regulators reviewed the EnCap/Cherokee plan to clean up polluted sites and safeguard them for future homeowners.

At one meeting, Campbell advised the developers that they would not always have to resort to “legislative solutions” to advance their plans. They could simply work with his office administratively, Campbell said.

Which brings us to the point of this post.

Encap corrupted DEP managers, who bent and broke rules to serve corrupt purposes.

The waiver rule will produce the same results, but there won’t be any investigative expose’s or corruption trials – not anymore (and especially with a depleted press corps and – let’s not forget that Encap involved landfills and site remediation –NJ’s privatized toxic site cleanup program).

Earth Day Protest, 2005. DEP Commissioner Brad Campbell (L) and Wolfe (R) debate