Start of 28th annual Philadelphia Bike Race (6/3/12)
Went down to Philly yesterday for the bike race – great day. Some scenes:
here come the women
Lemon Hill - Prospect Park
Prospect Park
Prospect Park picnic
Lemon Hill
start of sprint to finish (about 400 meters out)
Selenus and the infant Bacchus
women's team
a young cyclist in the park
[Updates below]
The above photo was taken by photojournalist Katie Falkenberg, who gave it this caption:
Erica and Rully Urias must bathe their daughter, Makayla, age 5, in contaminated water that is the color of tea. Their water has been tested and contains high levels of arsenic. The family attributes this water problem primarily to the blasting which they believe has disrupted the water table and cracked the casing in their well, allowing seepage of heavy metals into their water, and also to the runoff from the mountaintop removal sites surrounding their home. The coal company that mines the land around their home has never admitted to causing this problem, but they do supply the family with bottled water for drinking and cooking. Contaminated and colored water in has occurred in other coalfield communities as well where mountaintop mining is practiced.
The extraordinary and outrageous story behind that photo can be read here: Obscenity: I Know it When I See It:
Now, that photo of Makayla Urias is a photograph of a naked child, a child exactly as naked as nine-year-old Kim Phuc was when, forty years ago, an Associated Press photographer snapped a picture of her, while she was running and crying from American napalm. You’ve probably seen that photo.It’s iconic. The photographer got a Pulitzer prize for taking it.
Yesterday, on the other hand, Maria was told that she would not be allowed to show that photo. It was not appropriate. She had the blessing of the child’s parents, but Republicans on the subcommittee alerted the capitol police (according to Spencer Pederson, a spokesman for GOP panel members), and after the hearing, the capitol police took Maria aside for questioning about “child pornography.”
I have an eerily similar experience to share.
In March 2008, I went to Passaic City, NJ to take some shots of contaminated toxic sites near schools.
I was investigating the NJ Schools Development Authority (SDA) and documenting how they spent hundreds of millions of taxpayer dollars buying contaminated land, so they could put poor urban kids in schools on toxic sites.
I used the photos in this post: How the Other Half Schools
I spoke to the Principal of Public School #9, told her what I was doing and why I was doing it, and got her permission to take photographs.
She suggested that when I was done with PS #9, that I go and take shots of a nearby preschool that was adjacent to a contaminated site, a former hospital.
Not only had the community lost a hospital for their residents, but now their children were being exposed to radioactive waste found during demolition of the hospital site – take a look at the kids’ school – in trailers, being exposed to radioactive dust:
Pre-school trailers can be seen in background. This brownfield site is a SDA construction site known as the “Dr. Robert Holster Education Complex”. A school was supposed to have been built there over 4 years ago but the site still sits vacant. A community hospital was torn down by SDA to build the school.
Now comes the part that I was reminded of by the West Virginia coal mining story and photo above.
Shortly after I got home from Passaic City and was eating dinner, a local West Amwell police officer knocked on my door.
He told me he had got a call from Passaic, complaining that I was taking photographs of young children and might be a pedophile!
Same bullshit – West Virginia to NJ. These scumbags know no shame.
[Update 2 – I just looked into the issues involved in that House hearing, titled: “Subcommittee on Energy and Mineral Resources Oversight Hearing on the “Obama Administration’s Actions Against the Spruce Coal Mine: Canceled Permits, Lawsuits and Lost Jobs” ( you can listen here).
I strongly urge anyone interested in the politics of environmental regulation and the economy to check it out. Republicans, the Chamber of Commerce, and the National Association of Manufacturers pulled out all the myths and spin about regulatory uncertainty.
I also read the US District Court’s opinion which found that EPA’s withdrawal of a previously approved disposal area specified in a USACE dredge permit was not authorized by the Clean Water Act. The mining corporation lawyers challenged EPA under 14 counts – after the oral hearing, in an unusual move (a Minute Order), the judge herself raised the issue and requested briefs on whether the EPA had the authority under the CWA, and issue not even raised by the mining company lawyers! Talk about activist judges! And this was an Obama nominee! I put up a $10 bet that she gets reversed!
Update 1- the photographer who took the above bathtub photo, Ms. Falkenberg, sent me the following note to take exception to my posting of her work:
Dear Mr. Wolfe,
I was pointed to your website today about your post, “They Know no Shame.” I am the photographer who took the photo of the child in the bathtub that you posted. Respectfully, I ask that you please take down the photograph from your site. You are more than welcome, of course, to link to the photo on my site, but those photographs are copyrighted and may not be published without prior permission.
Thank you for your understanding.
Most sincerely,
Katie Falkenberg
Unfortunately, as a matter of principle, I was forced to refuse that request with the following reply, which notes fair use and attribution:,
Hi Katie:
First of all, I am a photographer too, so understand the artistic impulse. But I welcome any posting of my work, with attribution (and a link).
I learned of your work via a link in a post about political issues – e.g testimony before Congress.
I used your work -WITH express attribution and link – in a public interest post regarding broader but related issues.
As such, I think I respected your work, credited your work, and posted it under fair use doctrine.
In response to your concerns, I will provide a link to your website.
But I wil keep that photo as I posted it.
Sorry, if that is not satisfactory.
So please visit Ms. Falkenberg’s website and show her some love.
(I wonder if she had the same problem with Zunguzungu, who’s linked to her website? Or Digby, who linked to both.)
Trap Rock Presses Trespassing Charges for Kids Posting Photos
Trap Rock Hopewell mine, Rt. 29
In the Chutzpah of the century award, I just read that Trap Rock Industries, Inc. – the mining operation – had 3 kids charged with trespassing.
Trap Rock and police did not actually catch these kids on their property – in an ugly new form of police monitoring and social control, they discovered photos posted on the internet.
I guess they missed this: We wrote about and posted photos of Trap Rock way back on March 9, 2008 in our Star Ledger “NJ Voices” column – take a look at the photos. (The photos were taken in a public interest journalistic capacity with the reasonable expectation that Trap Rock would not oppose the publicity. But if Trap Rock is thinking about coming after me for posting these photos, well, make my day: the applicable criminal trespass law has a 1 year statute of limitations.)
So check out the Trenton Times story:
Hopewell police say quarry trespassers posted incriminating social network photos
HOPEWELL TOWNSHIP – Two men and one woman have been charged with trespassing after a Trap Rock employee found pictures of the three on the company’s quarry posted on a social media website, police said.
Trap Rock Industries operates a rock quarry along Route 29 where the three allegedly trespassed on March 26. Police said Andromeda Scott, a 19-year-old Lambertville woman, 20-year-old Lawrence resident David Goldberg, and 20-year-old township resident Eric Major bypassed a security fence and ignored posted signs.
While on the property the three allegedly took photos, which wound up online. A Trap Rock employee saw them and contacted police, who began an investigation.
Officer Gerard Infantino charged Scott and Goldberg with criminal trespassing on May 21, and Major was charged with criminal trespassing May 27. They were processed at police headquarters and released pending an upcoming court date.
I can understand why Trap Rock doesn’t want people on their property taking photos and posting them on-line. And why Trap Rock is abusing laws to intimidate others from taking photos of their operations.
People might see all the massive destruction Trap Rock does to the earth (see above and below photos).
By seeing all that damage to the earth, people might get very angry and urge their legislators, local officials, and regulators like DEP and the County Soil Conservation District to pass tough laws and enforce existing laws and permits.
Who knows, Trap Rock could face enforcement fines and have permits and approvals denied.
If law enforcement officials are so willing to enforce trespass laws, surely they must know that Trap Rock regularly trespasses on public property with noise, vibration, visual ugliness, and air and water pollution.
Trap Rock mines consume huge amounts of water and destroy wildlife and habitat – publicly owned resources.
Trucks going to Trap Rock mines pollute the public air, pose safety hazards, and destroy public roads, costing the public millions of dollars in road maintenance.
I often see trucks going to and from the Trap Rock Rt. 29 Hopewell mine speed right through red lights at Washington Crossing.
Trap Rock is a hazard to the community –
Having local people charged for trespassing is not exactly good community relations (pressing charges in required for trespass).
So, the next time any government approval for Trap Rock emerges, the laws should be strictly enforced, just like Trap Rock sought strict enforcement for trespass. Permits denied.
Trap Rock might have future permit applications denied too, like maybe this one:
D & R CANAL PARK REPORT
Ms. Kallesser noted that she met with representatives from Trap Rock Industries regarding their planning of a solar project near Rockingham. She noted that one field of the arrays will be visible from the Rockingham museum. It was noted that the issue of the application of the DRCC rules to Rockingham is still being reviewed.
Trap Rock Hopewell mine, Rt. 31
Will ENGO’s pursue a CWEA II Campaign?
[Update: 6/22/12 – File this under “We told you so”: Toll Brothers violate Clean Water Act on 43 N.J. sites – end].
In Part Three of our Clean Water Series, I wrote yesterday about how and why the 1990 NJ Clean Water Enforcement Act (CWEA) eliminated DEP’s enforcement discretion and imposed mandatory facility inspection and permit effluent limit violation penalty requirements for certain “point source” dischargers.
The Legislature stripped DEP discretion as a result of a systemic failure to enforce clean water pollution control permit requirements.
In Part IV, today we look briefly at DEP’s implementation of the Clean Water Act’s Municipal Stormwater Permit Program.
In our view, the DEP storm water permit program illustrates the very same systemic DEP failure to enforce that convinced the Legislature in 1990 to extinguish DEP’s enforcement discretion in the CWEA.
Ironically, instead of being embarrassed by their failure, the Christie DEP actually touts their performance and accomplishments. In a 2010 Status Report, DEP stated:
This Summary Report shows an exceptional level of compliance that could only be reached by dedication and commitment at the local level. Municipal engineers, public works, and maintenance staff should be recognized for the hours spent reviewing plans, sweeping streets, cleaning storm drains, and educating the public.
The Christie DEP puts on the same rose colored glasses and spin in showcasing the Stormwater Permit Program as a model for the Governor’s Barnegat Bay plan. In a similar cookie cutter boilerplate 2010 Report, using identical language, DEP stated:
The Department has summarized the data received from 2004 through December 31, 2009 for the above permittees in the Barnegat Bay Watershed in this Summary Report which shows an exceptional level of compliance. This level of compliance demonstrates the dedication and commitment by the local municipal engineers, public works, and maintenance staff.
Wow!
So, let’s contrast DEP’s self congratulatory findings with those of the Delaware Riverkeeper.
In a May 2010 Report that evaluated DEP’s stormwater permit program, Riverkeeper found:
The Delaware Riverkeeper Network has produced this Report to expose the inadequacy of the current municipal stormwater review system. The Report brings to light numerous shortcomings of the Municipal Stormwater General Permit in its capacity of assuring proper implementation of the program as it is currently implemented and demonstrates that the program is ineffectual in its mission to protect our water resources and the communities they serve. Given the current sensitivity to environmental justice issues, these failings and the effects they have on urban and downstream communities are all the more disquieting. The intent of this Report is to identify and engender the necessary changes, and to secure the necessary enforcement of the Municipal Stormwater Regulations Program and Stormwater Management Rules in the municipal review process by the New Jersey Department of Environmental Protection (NJDEP).
The Delaware Riverkeeper Network engaged with a number of stormwater experts to review a variety of projects approved in the Township of Hamilton, Mercer County, New Jersey. Each project was examined for completeness, accuracy and whether the stormwater system honored the intent of New Jersey’s Stormwater Management Rules. The results of this review are sobering. The twelve projects presented in this report were reviewed for compliance using a standard 100-point scale grading system to measure compliance with the Rules. Grades ranged from 25 to 79 percent, with an average compliance grade of 42 percent. With regard to the use of nonstructural stormwater management strategies — a primary goal of the program — the average compliance grade was a dismal 13 percent.
While this report focused on inadequate reviews conducted by Hamilton Township land use boards, the Delaware Riverkeeper Network believes, based on similar reviews and experience, that non-compliance is not at all limited to this single municipality. There is ample evidence throughout the State, in other counties and other towns, that the Municipal Stormwater Regulations Program review process is not working and implementation of the Stormwater Rules is lax, at best.
On the basis of those findings, Riverkeeper appealed to the US EPA to intervene.
Under the Clean Water Act, EPA delegates day to day implementation of EPA approved programs to the States, but EPA maintains oversight on NJ’s state program. If there is “widespread” failure and non-compliance, EPA can revoke the State’s program and directly assume implementation.
The Obama EPA refused to intervene.
So, in December 2010, in an attempt to force EPA to act, Riverkeeper sued EPA under the Citizen suit provisions of the Clean Water Act.
In an April 30, 2012 decision, the US District Court rejected Riverkeeper lawsuit on the basis that EPA had enforcement discretion:
It is not merely the results of these decisions that guide the Court, but the reasoning. One of the most important legal principles relied upon is that courts must presume that the enforcement duties of the executive branch are discretionary. This presumption exists because enforcement duties implicate important, and often technical, resource allocation and policy choices. Heckler v. Chaney, 470 U.S. 821, 831-32 (1985); Harmon Cove Condominium Assoc. v. Marsh, 815 F.2d 949, 951-952 (3d Cir. N.J. 1987). The Supreme Court held in Heckler v. Chaney that the presumption “may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” 470 U.S. at 833. The Third Circuit held that it was not rebutted in the case interpreting § 1344(s)(1), regarding enforcement of Army Corps permits under the Clean Water Act. “The statute imposes no duty on the Secretary to make a finding of violation, because it contains no guidelines for the Secretary to follow in choosing to initiate enforcement activity.” Harmon Cove, 815 F.2d at 953. The very similar language, i.e., lack of guidance, in the provision before this Court compels the same result. Plaintiffs claim that the language about “widespread” violations in § 1319(a)(2) constitutes sufficient guidance to distinguish it from § 1319(a)(3), and rebuts the presumption of enforcement discretion. However, this language merely identifies the type of violations targeted by the provision, it does not actually guide the agency “in exercising its enforcement powers.” Heckler, 470 U.S. at 833.
But importantly, the Court did not reject Riverkeeper’s factual findings about DEP’s failures:
The Court does not doubt the gravity of Plaintiffs’ allegation that New Jersey’s failure to enforce NPDES permits “undermines the entire structure of the CWA”; it is simply unable to find that the magnitude of the alleged violation supports the Plaintiffs’ legal conclusion.
So, here we are, over 20 years later, right back to the fundamental issue of abuse of enforcement discretion that prompted the 1990 CWEA.
DEP has failed to act.
EPA has failed to act.
The federal courts have failed to compel EPA to act.
As a result, water quality continues to decline.
It looks like the only remedy is a Clean Water Enforcement Act II – for stormwater, CSO and non-point source pollution.
The ball is in the Legislature’s court.
Will ENGO’s pursue a CWEA II campaign?
There seems to be some positive movement in that direction.
NY/NJ Baykeeper is working on proposed legislation (S 831 [1R] – Smith/Beck) that would address Combined Sewer Overflows (CSO’s)- a long ignored issue we next discuss in Part V of the series.