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Bill To Promote Logging on State Lands A Stain on Highlands Legislative Legacy

Sham Science, Sham Justifications, Sham Safeguards

“Not my role to cut deals”

Here is yesterday’s testimony of the NJ Farm Bureau. The Bureau had huge influence on the sponsors and the terms of the “Forest Stewardship” bill. Their testimony confirms my criticisms and makes the objectives and effects of the so called “Forest Stewardship” bill very, very clear:

“In the early 1980’s, the state stopped participating in timber sales. So the state lands that were managed in timber, up to that point in time, were an important part of attracting the timber industry to the State. The State owns half or more of the wooded lands, so its been on the back of smaller producers to attract competition to the state. And what they’ve ended up with is the one guy who wants to come and cut in NJ, kind of setting the market price. And so we’ve had a depressed value of our wood products.

We see, by the State re-entering into a managed timbering process, that more vendors will be attracted  to come into the state and then they’ll pick up those smaller [private] parcels … and we’ll see an economic benefit to our state, for the private forest lands as well as the public lands, because landowners will have more options in how they do those managed cuts.

The other part of it is that pretty much since the State stopped timbering, there has been a decline of the overall forest health. It not a matter of what people envision when they see, like down south in Georgia timbering where they do paper cutting and take everything out. This is selective cutting. It’s choosing the best woods at the appropriate time. Removing older trees to let younger trees grow… creating appropriate breaks in the forest canopy to encourage diversity of wildlife . All of that is what goes into the stewardship plan.

And then its the ability of the State to recoup those costs through the sale of the timber. … 

With the increased participation by the state we will see increased competition amongst those that harvest these products and better prices  which them improves the overall wood and timber industry in the state.

So, lets repeat the salient points, just to be clear:

1) NJ effectively had a moratorium on logging state forests for over 30 years. The bill is designed to end that and promote logging, thus advancing a radical change in policy.

2) The bill is designed to attract the timber industry to NJ and to stimulate and expand the existing wood and timber industry in NJ.

3) The [false] scientific premise of the bill is that it was the termination of state timbering has led to a decline in forest health.

4) The [false] scientific premise of the bill is that the health of NJ forests requires fragmentation and opening of the forest canopy to sunlight. [more sunlight and forest edge, more invasives and deer browse. Why do this? Especially when miles of ROW provide lots of edge/early successional habitat and golden wing warbler is still in decline? ]

5) The bill provides [perverse] incentives to DEP by reliance on timber sales revenues to fund the forestry program.

I think that pretty well sums it up, no?

So, lets examine those claims.

As the Farm Bureau states, is the decline in forest health a result of or even related to the State’s termination of logging in the 1980’s?

It is no secret that the health of NJ’s forests face severe threats from a myriad of activities: like fragmentation due to sprawl development; destruction by construction of miles of new gas pipelines and electric transmission right of way; invasive species; acid rain; air pollution; pests; and over-abundant deer browse.

Those threats are greatly compounded by climate change, which alters basic ecological dynamics such as precipitation, temperature, timing of seasons, and destructive extreme weather events. Trees can’t adapt to this rate of change, so our forests are facing existential threats.

The health of NJ’s forests are not declining because we are not cutting enough of them down.

In fact, the Highlands Act was passed a decade ago, largely in response to and based on reports by US Forest Service, which looked at threats to NJ forests and found:

Large contiguous forest tracts (greater than 500 acres) provide critical habitat resources for many species. These large forest tracts cover approximately 350,000 acres (25 percent) of the Highlands. There are only 11 tracts of forest that are greater than 5,000 acres. These largest tracts comprise approximately 60 percent of the New York – New Jersey Highlands core forest interior habitat. The survival of large mammals, such as black bear, and furbearers, such as bobcat and river otter, depends on maintaining contiguous habitat throughout the Highlands. Contiguous habitat provides migration corridors, and extends the feeding and breeding range of these populations.

• The Highlands serve as a major migratory flyway for many neotropical bird species, many of which populations are in decline. Of particular concern to ornithologists are the 70 to 75 species of interior nesting neotropical migrants such as the red-eyed vireo, American redstart, Kentucky warbler, and eastern pewee. These species require large undisturbed forest patches.

• Fragmentation and alteration of habitat continue to pose the greatest threat to the biological communities in the Highlands. The rapid expansion of urbanization encroaches on and fragments habitat, destroys individuals as well as populations, and potentially threatens the continued existence of many biological communities. Degradation of habitat by direct destruction or indirectly through pollution, erosion, introduction of invasive species, or fragmentation threatens the existence of species, diminishes natural communities, and reduces genetic variability.

• Two-thirds of the migrant birds that use the eastern migratory flyways are believed to be in serious decline. Several species including the wood thrush, Kentucky warbler, black-throated blue warbler, and cerulean warbler are on the Audubon Watch List for species in rapid decline (National Audubon Society 2001). Population declines have been primarily attributed to the loss of habitat through forest fragmentation and development pressure. Additional causes of bird population declines in the Highlands include exposure to human-derived contaminants, increased competition with nonnative bird species, increased predation from domesticated animals, and collision with structures.

LAND STEWARDSHIP OPPORTUNITIES

To address the US Forest Service Reports, here’s what the Legislature found in enacting the 2003 Highlands Act:

The Legislature finds and declares that the national Highlands Region is an area that extends from northwestern Connecticut across the lower Hudson River Valley and northern New Jersey into east central Pennsylvania; that the national Highlands Region has been recognized as a landscape of special significance by the United States Forest Service;  …

… that the New Jersey Highlands contains other exceptional natural resources such as clean air, contiguous forest lands, wetlands, pristine watersheds, and habitat for fauna and flora, includes many sites of historic significance, and provides abundant recreational opportunities for the citizens of the State. …

The Legislature further finds and declares that, since 1984, 65,000 acres, or over 100 square miles, of the New Jersey Highlands have been lost to development; that sprawl and the pace of development in the region has dramatically increased, with the rate of loss of forested lands and wetlands more than doubling since 1995; that the New Jersey Highlands, because of its proximity to rapidly expanding suburban areas, is at serious risk of being fragmented and consumed by unplanned development; and that the existing land use and environmental regulation system cannot protect the water and natural resources of the New Jersey Highlands against the environmental impacts of sprawl development.

Is there anything in the Forest Service Reports or the legislative findings there about the need to restore logging and attract the logging industry to NJ, as suggested by the Farm Bureau?

So why on earth would the Legislature now want to ignore all that science and magnify all those threats by ending what amounts to a longstanding 30+ year moratorium on logging of state forests and public lands?

To create a handful of jobs and more profits to the logging industry?

Why would NJ Audubon Society – who developed the science and advocated forest metrics designed to protect large blocks of contiguous forests and maximize tree canopy during the 2005 DEP Highlands rule process – suddenly do a U-Turn and support a bill to promote logging and more forest fragmentation and opening of the canopy?

The “environmental” or “conservation” case for the bill is made by Mike Catania, former DEP lawyer and head of Conservation Resources, Inc..

Basically, Mike thinks the bill’s opponents are misguided and are waging a battle based on ugly personal attacks.

According to Mike, we can’t see the forest for the trees (that title an echo of my December 2011 post “Legislators can’t see the forest for the fees”) and need to “come to terms” with the bill and give the sponsors a break.

Mike’a a lawyer, so perhaps he can explain how the provisions of Section 3 of the bill that the State forester “ensure” that the forest management plans are implemented can be enforced.

As Mike knows, as a result of recent legislation, guidance documents (like the Forest Stewardship Council’s) can not be enforced. As Mike also knows, the goals and objectives in Section 2 are aspirational and lack enforceable implementation provisions in Section 3. As Mike knows, the provisions of Section 3 that direct the State Forester to “ensure” various environmental objectives and forest management plan implementation lack standards in the bill, and also lack provisions that would mandate that Forest Management Plans comply with existing environmental standards and requirements established pursuant to the Highlands Act, DEP Highlands regulations, the Highlands RMP, Category one stream 300 ft. buffers, the Freshwater Wetlands Act, Soil Erosion and Sediment Control Act requirements, or linkage to the carbon sequestration objectives of the Global Warming Response Act.

Forestry is exempt from all that – and more – under the bill. And Mike, as a lawyer, surely knows all that.

And by my by noting all those flaws, I’m the one with the problem and I can’t see the forest for the trees and am engaged in ugly personal attacks, right?

And maybe Eric Stiles, who heads NJ Audubon and personally developed those forest metrics I just mentioned, can explain the sudden U-turn on the Forest Service science and the basis for the Highlands Act.

Could it have anything to do with Audubon’s (undisclosed) interests in management or consulting fees or other economic benefits resulting from the bill?

Maybe Elito Ruga of the Highlands Coalition can explain why he would support a bill that exempts commercial logging from the Highlands Act, the DEP Highlands regulations, and the standards of the Highlands Regional Master Plan – the basic tools his organization is supposed to advocate for.

So, lets take a closer look at what went down in Trenton yesterday – first read Tom Johnson’s NJ Spotlight story:  Is Logging the Pinelands Just a Vote and Signature Away? – Bill to allow harvesting of state-owned public lands clears legislative committee with bipartisan backing

A bill to promote, expand, and accelerate commercial logging in State forests and state lands was approved by the Assembly Natural Resources Committee today, despite harsh testimony against the bill by NJ’s two largest environmental groups, NJ Sierra Club and NJ Environmental Federation, backed by the NJ Environmental Lobby, Delaware Riverkeeper and NJ PEER.

Jeff Tittel of Sierra had particularly compelling testimony – You can listen to the testimony at this link.

The bill was already approved by the Senate and if passed by the full Assembly will go to the Gov. for his likely signature.

The bill represents a stain on the legislative legacy of two Highlands champions, who co-sponsored the 2003 Highlands Act specifically to preserve intact Highlands forests, and now co-sponsor a logging bill to fragment those same forests.

I testified that the bill lacked of safeguards to assure protection of sensitive natural resources and landscape features, or adequate public involvement and review.

I noted that the bill’s goals were aspirational goals and that they do not establish a policy or ensure the highest level of protection for public lands, backed by clear legislative or regulatory standards.

I noted that the effect of the bill would be to promote, expand and accelerate logging on state lands – trading forests as a market commodity, not a public resource.

I noted that the private 3rd party certification model was problematic – largely designed to deceive – and lacks a scientific basis – a view share by, of all entities, the Federal Trade Commission, who warned recently:

WASHINGTON — The legal watchdogs at the Federal Trade Commission have been trying to police the proliferating — and often false — claims in recent years that products are “green” or “environmentally friendly.” …

The F.T.C. warns manufacturers or marketers not to use broad claims that a product is “environmentally friendly” or “eco-friendly,” because these statements frequently have no scientific basis and mislead consumers.

I warned that the forestry program established under the bill provides perverse economic incentives to DEP, which will result in logging to generate revenues to fund the bureaucracy.

The bill would allocate net revenues to the Hunters & Anglers Fund and biodiversity projects. But there will be no “net proceeds” so the bill will not fund the Hunters & Anglers Fund or biodiversity projects – these were cynical inducements to garner the political support of powerful hunting and conservation groups.

That is just one reason why the DEP and OLS failed to conduct any economic or fiscal analysis.

I concluded that – in contrast to Mike and NJ Audubon -while I had offered recommendations, it’s “not my role to cut deals”.

So, there it is.

[PS – the debate on this bill is not taking place in a vacuum. In subsequent posts, I will outline specific projects and specific abuses that illustrate my criticisms. Finally, I feel like a fool, because the sponsors, in drafting the Senate Committee substitute, made all the rhetorical and the cosmetic changes I recommended, but none of the larger policy or  regulatory protections, or forest safeguards, and substantive amendments.

[Update – here is Assemblyman McKeon’s spin – hard to understand, because the safeguards that are mentioned are not in the version of the bill that passed the Senate or was released from committee yesterday (with amendments not available?). I hope these are not the amendments that bought off opponents.]

 Koch Brothers, AFP, ALEC and Tea Party Black Helicopter Crowd In Christie’s Garden Party

[Updates below]

In all the news coverage of the announcement of the US Senate candidacy of right wing activist Steven Lonegan, I was surprised by the deafening silence of the links between Lonegan’s outfit, Americans for Prosperity (AFP) and the billionaire Koch Brothers.

Even by so called progressive media outlets, like NJ Spotlight.

That’s like writing about Jeff Tittel running for office without mentioning the Sierra Club. WTF!

The Koch Brothers are notorious and well documented billionaire backers of climate change denial (AKA “kingpin of climate science denial”) and the creators of the right wing front group, AFP (see Jane Mayer’s New Yorker expose on how the Koch’s created AFP and the Tea Party right wing “grass roots movement” to advance their own greedy corporate interests: Covert Operations).

Most recently, the Kochtopus was back in the news, when Mayer wrote another amazing expose of how they censored and killed an independent documentary film aptly titled “Citizen Koch”, by pressuring PBS New York affiliate WNYC , see: “A Word From Our Sponsors”).

[Oops, forgot to mention that Koch’s are buying up newspapers too]

And now, the Kochtopus is ramping up right here in New Jersey – and doing huge damage politically.

(there is also evidence that the corporate front group known as the American Legislative Exchange Council (ALEC) has made deep inroads in NJ political and legislative circles, for example, see this: Meet ALEC’s NJ State Chairman – Senator Oroho).

To borrow from Hillary Clinton – there actually is a vast right wing conspiracy and it is shocking that so little is being written about it by NJ media outlets, especially when no conspiracy theory stuff is necessary, when facts like this are right in the open, in plain sight: (as reported by John Mooney of NJ Spotlight)

Picking Their Fights, Lobbyists See Spending Soar

 

In a surprise result, Americans for Prosperity, a conservative group funded by the billionaire Koch brothers, came in third among special interest groups in communications spending at $564,218, behind only the NJEA and the AFL-CIO.

The conservative group spearheaded efforts to convince the Christie administration to pull New Jersey out of the regional greenhouse gas initiative, a 10-state cooperative to reduce emissions that contribute to global climate change.

In a move that drew criticism from clean energy advocates and Democratic lawmakers, Christie pulled New Jersey out of RGGI last spring, although the move did not take effect until the end of the year.

The group has been active in New Jersey in the past, but never to the extent that it was in the past year. Previously, the group had lobbied against bond issues to preserve open space and farmland. All but $7,240 — which went to travel and expenses — of the total $571,458 spent by Americans for Prosperity was allocated to communications.

Besides opposing RGGI, Americans for Prosperity also lobbied against proposals aimed at developing an offshore wind industry off the coast of New Jersey, a priority of the administration and lawmakers. The lobbyists contend the wind farms will spike electric bills for ratepayers.

So, it was no accident that Gov. Christie killed RGGI and is engaging in climate change denial.

And now all that billionaire Koch money – in addition to putting political wind in Governor Christie’s sails – has just bought them a US Senate Candidate.

Even though Lonegan has very little chance to win, his Senate campaign provides a platform for more right wing money to fuel organizing and message  (for how this all works, Google “Overton Window”).

And, of course, our fair and balanced media will lend legitimacy to Lonegan’s warped ideas – all without exposing the puppet master Billionaire Kochtopus.

Not bad work, if you can get it.

[update #1: 6/10/13 – In an otherwise piece of conventional wisdom, Mike Symons of the APP wrote this today (which I was not aware of):

Christie met with AFP activists in January in the governor’s office when they were in Trenton for a grass-roots training event.

Update #2 – 6/12/13 – Star Ledger profile of Lonegan notes Koch billionaire’s backing of AFP, but you’ve got to dig to find it.

Curious to compare Lonegan’s treatment with Buono’s. Buono is repeated described as having gotten the nomination by default because no other Dems were willing to take on the “inevitable” Christie.

But while mainstream republicans abandoned the US Senate seat race in an apparent concession to Dems, Lonegan – a fringe candidate with no real governing experience – is not tagged as a “default candidate” and gets treated as a legitimate candidate not the radical right wing lunatic his is.

What explains that double standard? I think reporters and editors are afraid of right wingers.

Or could the respectful treatment be because Koch’s are buying up newspapers and some outlets are looking for that kind of sugar daddy?

[Update 3 – 6/13/13 – As predicted, more mindless favorable Lonegan coverage that ignores Koch’s manipulation:  Atlantic County backs Lonegan – disgusting]

[Update 4 – 6/17/13 – More brain dead favorable coverage of Lonegan from Star Ledger  – remarkable. Again, note the difference in how Buono campaign is treated.]

Bill Would Strip DEP Commissioner of Final Decision When Polluters Challenge DEP Actions

Will Democrats Provide Cover For More Christie Rollbacks?

[Update: 12/9/13 – Glad to see this, exactly what we asked for:

N.J. Senate panel slashes bill empowering administrative law judges

[Important Correction and Update on today’s Committee hearing below]

Flying under the radar, under the guise of minor streamlining reforms to arcane administrative practices, a bill up in Trenton today would make a major public policy change that would weaken the enforcement of all State environmental laws, and raises potential conflicts with federal law as well.

The bill, a recommendation of Gov. Christie’s “Red Tape” Commission to rollback regulatory protections, would significantly shift the balance of power in favor of polluters by stripping the DEP Commissioner of the power to make final decisions in administrative challenges to DEP permit and enforcement actions.

[Correction: I went back and re-read the 2 Red Tape Commission Reports. While they made numerous bad policy recommendations, technically, the did NOT recommend the AJL final decision provision of this bill. The April 19, 2010 initial Red Tape Review Group Report found this:

… the Red Tape Review Group is sensitive to the fact that the suggestion raised by these witnesses to remove final agency determination on the preliminary decisions of Administrative Law Judges proposes a substantial departure from the existing  principles of governmental authority.   … such a reorganization of authority implicates a substantial shift of regulatory authority away from the Executive Branch. As such, the Red Tape Review Group believes that this issue must be examined further.  (@p.21-22)

and therefore recommended:

Amending current law to mandate that the decisions of Administrative Law Judges be considered “final agency action” in contested cases is not being recommended at this time; however, a series of immediate reforms to the system of administrative adjudications should be implemented.

The subsequent Feb. 8, 2012 Report did not address the issue.

My apologies for mis-stating the Administration’s position. The statement on the Assembly version is misleading on this issue, by stating that “some” of the provisions of the bill were based on the Red Tape Report.  – end correction.]

The public was shut out of these administrative challenges by a law that restricts what is known as “third party standing” – so the bill deals with an administrative forum that exclusively deals with attacks on DEP permit and enforcement actions by regulated entities, i.e. polluters and developers.

[For example, lets say DEP issues a permit for a development or pollution source next door to your home. You could submit comments on the draft permit, but could not legally participate in the administrative challenge to this permit by the developer or polluter. The Administrative Law Judge in such a case would only get legal briefs and testimony only from the polluter/developer and DEP. Your facts and opinion are irrelevant. This makes your comments on the draft virtually meaningless. In contrast, in a real court of law, you and environmental groups could intervene in the case as an “amicus”.]

By weakening DEP’s power in that arena, the bill would systematically weaken all DEP permit programs, because DEP would be  reluctant to impose tough permit or enforcement actions that they would lose in administrative challenges. The bill would invite even more friendly forum legal challenges by polluters to DEP permits and enforcement actions, further weakening protections across the board.

The bill is a subtle and sophisticated stealth attack on DEP as an institution and on the enforcement of environmental laws. There are highly complex, controversial, and unpopular rollbacks in administrative procedures that would never see the light of day if drafted as bills that made direct attacks on the environmental laws themselves.

Instead, the Governor and his polluter backers use  back door stealth measures to dismantle the regulatory apparatus needed to administer and enforce environmental laws.

The bill is part of a systematic dismantling of the environmental regulatory arena, as set forth under a series of sweeping Executive Orders signed by Governor Christie. One day after his November 2010 election, the NY Times reported Christie promised rollbacks – and did so in the first hour of his first day in Office – masked by the use of slogans, like “job killing red tape” and “common sense regulation”.

Christie’s first hour moves included a regulatory moratorium (EO#1); radical new policy of “regulatory relief” (EO#2); formation of the Red Tape Rollback Commission (EO#3); and restrictions on “unfunded state mandates” (EO#4).

Since then, Gov. Christie has used executive power to advance a devastating across the  board attack on DEP and environmental laws, including: 1) installing a business executive with no training or experience as DEP Commissioner; 2) budget cuts; 3) diversion of $1 billion environmental funds; 4) privatization, outsourcing, and delegation of core DEP responsibilities to private entities and local governments; 5) deregulation; 6) enforcement policy shift to voluntary compliance and technical assistance ; 7) rollbacks to key policy plans, like the Energy Master Plan, Water Quality Management Plan, and State land use plan, and inaction in updating and strengthening  others, like the Water Supply plan; 7) appointments of cronies to policymaking positions; and 8 ) even pension and benefit rollbacks to force senior DEP professionals into retirement, without replacement, a brain drain that has virtually hollowed out DEP as an institution.

We testified in opposition and previously wrote about the bill here and here.

The proposed Senate version (S2555) is slightly different than the Assembly version, which quietly passed the Assembly in April (A1521[1R]) with no debate – both versions of the bill are up before the Senate State Government Committee today.

Gubenatorial candidate Senator Buono is on that Committee – she was a member of the Christie Red Tape Commission but resigned in protest when their rollback agenda became apparent.

I have worked with Buono to do damage control on other Red Tape bills, so it will be interesting to see how she handles the issue today and whether her fellow Democrats on that Committee and in Senate leadership back her up (e.g. Sweeney, Weinberg, and Environment Committee Chair Bob Smith and member Whelan, who also sits on State Government).

Politically, the Democrats can use this as a good issue to contrast Buono’s pro-environment leadership with Governor Christie’s systematic attacks and rollbacks of environmental protections.

Recently, Buono has used Christie’s climate change denial as a campaign issue – will her Democratic colleagues support that effort, or blow an opportunity,  throw her under the bus and provide cover for the Governor?

Below is a letter I fired off to urge Buono and Senate Democrats to block this bill:

Senator  Buono – The Senate version of Assemblyman Burzichelli’s Red Tape bill, S2555(Van Drew), is up tomorrow in Senate State Government Cmte.

The bill purports to make minor procedural administrative reforms – but one provision of the bill is a significant policy change that would undermine protections of public health and the environment.

Section 2.g. of the bill  provides that the decision of an ALJ will be the final decision in all contested cases. Current law vest the Agency head with final decision authority in contested cases before OAL.

The bill would significantly change current practice, whereby the DEP Commissioner makes the final decision in affirming , modifying, or rejecting an ALJ’s decision in a contested case.

The bill is bad policy, as many contested DEP cases are decided based on facts and regulatory policy, not law. The DEP Commissioner, backed by DEP expertise, is a more appropriate person to find facts and make a final decision in an administrative setting, as compared to an ALJ’s decision, e.g.  see: Conective – B.L. England Generating Station v. NJDEP  OAL Docket NO EEQ 6086-06)

http://lawlibrary.rutgers.edu/collections/oal/final/eeq6086-06_1.pdf

In that case, NJ DEP Commissioner Lisa Jackson found:

“The Initial Decision found that the issue presented here concerns the interpretation of 42 U.S.C. 7661 et seq., which establishes the Title V permit program, as well as the DEP ‘s regulatory requirements controlling operating permits and conditions of their approval. The ALJ concluded that the inclusion of a heat input limitation as an express condition of B.L. England’s Title V permit was improper because it constitutes a new substantive condition that was not authorized by Title V; it would be unfair because the imposition of this requirement could not be predicted based on the Department’s rules; it is in conflict with the emissions limits of the permit because it “nullifies B.L. England’s ability to meet the upper limits of the emissions limit of its permit[;]” DEP ‘s failure to include an express heat input requirement in its regulations requires the conclusion that heat input was not intended to be included in permits as an operating parameter; and the use of heat input as a “tool” to control emissions represents a new agency strategy that replaces old operational limits and, as such, requires formal rulemaking.        

These conclusions appear to rely in large part on the ALJ’s acceptance of B.L. England’s claims that heat inputs are informational only, have never been regulated and can be increased while maintaining emissions “well below its permitted. limits.” 4 Thus, the Initial Decision in effect concludes that hourly heat input limits are not properly imposed by the permit or the regulations and are irrelevant to the establishment and enforcement of B.L. England’s longstanding emission permit limits.

I reject the ALJ’s conclusions because I find that the hourly heat input limitations in dispute here are regulatory requirements which were properly established as conditions of B.L. England’s pre- construction permits and operating certificates, and that these limits were properly carried forward to the Title V permit.

Parties to an OAL contested case are almost always regulated entities, who rarely – if ever – represent the public interest.

Accordingly, an ALJ is almost always reviewing challenges to DEP permit and enforcement actions by regulated entities. The public lacks standing to intervene in these cases, as a result of a law enacted during the Whitman administration.

We need to retain the DEP Commissioner’s final decision to protect the public interest.

Otherwise, the OAL process will be tilted further toward private special interests.

The bill’s supporters have not provided factual justification for the bill to support such radical change. Most ALJ decisions are affirmed by the DEP Commissioner. Importantly however, there have been important cases where ALJ’s have made serious errors that were corrected by the DEP Commissioner’s final decision.

We ask you to oppose this bill or support amendments that would strip DEP from Section 2.g. 

I am available to clarify.

Bill Wolfe

[Update – small victory!

After over-reach by polluters is exposed, bipartisan concerns suddenly emerge!

The bill was held by the Committee. The Chairman indicated that Committee members had concerns and amendments  were being considered to Section 2.g! You can listen to the hearing here – scroll down to Senate State Gov. Cmte.

I assume that the Republican members of the Committee could not support the bill, because they cited Gov. Counsel’s constitutional concerns about separation of powers.

I assume that Senator Buono also could not support the bill, but she ducked out of the hearing when the  bill was called to respond to the Gov.’s announcement of Senator Lautenberg’s replacement. While that is a far bigger political fish to fry, I see this as a missed opportunity for Buono to defend the environment and provide contrast with the Gov. on environmental issues and regulatory policy. The fact that the bill is sponsored by Dems and that the Red Tape Reports do not specifically call for ALJ final authority makes that a more risky stretch, however.

Jeff Tittel testified in opposition. He made good points about separation of powers issues by vesting power in an unaccountable ALJ, as opposed to Executive Branch Cabinet members, who are politically accountable to the voters and legislative oversight. Tittel also spoke about conflict with federally delegated and/or funded programs and the NJ DEP/US EPA MOA. He threaten to seek federal revocation of delegated programs if the bill were to pass.

Surprisingly, Tittel did not mention or criticize the Gov.’s record or the sponsors of the bill. He instead claimed that the bill originated not in the Red Tape process, but was a recommendation by the American Legislative Exchange Council (ALEC). That is not implausible, because as I previously wrote, the bill’s original sponsor in the Senate was Oroho, who was appointed by Christie and served on the Red Tape Commission and he also is NJ ALEC Chair. Oroho has taken his name off the bill and the current Senate sponsor is Van Drew, a  Democrat and in Assembly, Burzichelli, also a Dem.

The Association of Counties also opposed the bill because it would conflict with federal regulations and jeopardize federal funding for various welfare programs.T

As expected, the bill was supported by the NJ Chemistry Council, NJ Builders Association, NJ Business and Industry Association, and Chamber of Commerce.

I was pleased that Hal Bozarth attacked my testimony as “rhetoric” – always fun to get under Hal’s skin.  – end update]

How many old, defective, poorly maintained railroad bridges are there in NJ?

How many more toxic train derailments are waiting to happen?

Railroad Safety Left in hands of Railroad Under Federal law

State Railroad Planning Reflects a Narrow Set of Priorities

This post began as a brief note on the NJ Department of Transportation (DOT) update of the State Rail Plan with respect to the “Rail Freight Assistance Program”, in the context of the recent Paulsboro Toxic Train derailment.

Because I am no transportation or railroad expert, I had to do a little basic research as background. In doing that, I uncovered some stunning information on railroad safety, which greatly expanded the scope of the idea for my original post.

So, read on, but bear with me as I bounce around this can of worms from federal safety regulation to state transportation planning and capital budgeting – keeping in mind the distinction between roadway bridges and railroad bridges.

Last month, I was disappointed but not surprised to read a NJ Spotlight story, based on US DOT National Bridge Inventory data, that reported that more than 200, or 25%, of NJ’s roadway bridges are obsolete or structurally deficient.

I say not surprised, because prior Reports by the American Society of Civil Engineers suggest the problem is far larger in magnitude. According to the ASCE 2013 assessment, NJ’s roadway bridges are far worse off:

BRIDGES

• 651 of the 6,554 bridges in New Jersey (9.9%) are considered structurally deficient.
• 1,717 of the 6,554 bridges in New Jersey (26.2%) are considered functionally obsolete.

But these reports focus on roadway bridges – what’s the state of our railroad bridges? Where could I find that data on railroads?

According to the ASCE report,“New Jersey has 18 freight railroads covering 983 miles across the state, ranking it 40th by mileage.“, but there was nothing reported about the number of or condition of railroad bridges.

A quick Google revealed that – holy shit! –  according to the Federal Railroad Administration (FRA), railroad bridge safety is left up to the railroads! FRA said:

The Railroad Safety Improvement Act of 2008 mandates that all track owners inspect their railroad bridges at least once per calendar year. Prior to the passage of this legislation, railroad bridge inspections were highly encouraged, but not mandatory. The new statute requires track owners to conduct and then submit risk management reports to the Federal Railroad Administration (FRA). In addition, track owners are required to document their yearly inspections and are also subject to random audits. Owners of structurally deficient railroad bridges can be levied fines of up to $100,000 and information on deficient railroad bridges will be published in the federal registry.

Citizens concerned about the state of railroad bridges in their communities are encouraged to contact the owner of the bridge first. However, the FRA is always available to concerned citizens and can be contacted via email at: RRSWebInquiries@dot.gov 

Imagine that – citizens can contact the railroads with safety concerns, or shoot the FRA an email!

And I thought environmental oversight and safety were lax!

[Note: I will write in the future about a recent NJ DOT Report on railroad infrastructure vulnerability to climate change, but that is beyond the scope of this post).

So, getting back to the original topic of this post – after reading that NJ Spotlight story, in the wake of last year’s Paulsboro Toxic Train derailment, I was curious about how many NJ railroad bridges were similarly obsolete or structurally deficient, and what the funding deficit was to repair or replace those bridges.

So, in light of the fact that the feds leave rail safety up to the private railroads, I was curious about how NJ State programs address this set of issues.

Recall that the Paulsboro toxic train derailment raised not only serious public health, environmental, and safety concerns.

Because the rail line was shut down for so long, there were huge negative economic dislocations, including a strategic threat to the continued existence of the chemcial industry in NJ, a major NJ employer and economic player.

According to the Philadelphia Inquirer, the chemical industry was unable to ship product and threatened to relocate several hundred jobs and shift production to other states if the railroad line were not reopened (see also:  Chemical Blackmail In Toxic Train Wreck).

So, I read with interest a recent relevant NJ DOT Report: STATE FISCAL YEAR 2013 UPDATE REPORT OF THE NEW JERSEY STATE RAIL PLAN:

The Rail Plan includes consideration of “safety” and the “environment” – so, does that Plan include consideration of risks resulting from hazardous chemical cargo shipments across ancient and deficient bridges?

Short answer – no.

The July 2013 Update shows that over the last 6 years, NJ DOT’s “Rail Freight Assitance Program” identified $159 million in “candidate projects”, averaging about $25 million per year, including PRIVATE railroad assistance.

How much of this need was met? How much money went to repair or replace dangerous railroad bridges?  Was there eligible candidate funding identified for the notorious Paulsboro swing bridge, built back in 1873?

The actual FY’14 DOT Capital budget, funded just $10 million of this identified need and THIS NEED DID NOT SPECIFICALLY ADDRESS CHEMICAL RAIL SAFETY.

I word searched the DOT Plan Update and Capital Budget for “Paulsboro” and was shocked by what I found.

Funding need was identified for almost $1 million for Paulsboro refinery improvements. And there was $1 million actually budgeted in FY’13 for the “Rt. 295 – Paulsboro Brownfields Access” project

But, I noticed that there was but no funding provided to repair or replace the notorious Paulsboro swing bridge over the Mantua Creek, which caused the “Toxic Train” derailment last November that forced evacuation of the community and hospitalized almost 100 people.

That bridge is privately owned by a profitable railroad, so it makes sense not to provide public funding. But, the safety of that bridge is a major issue that should be addressed in transportation plans. I could not find that analysis.

So it looks like neither federal or state trasportation agencies are looking at railroad bridge safety, a huge risk in a state like NJ, where people live so close to rail and so much chemical cargo is shipped on ancient rail lines over ancient bridges.

Last year’s Paulsboro derailment has been followed by a series of high profile rail accidents, including last months Baltimore train derailment which involved hazardous chemicals and caused a major explosion and fire

According to a lawsuit filed by local police and emergency responders, that bridge is over 140 years old and had failed scores of insepctection reports and received numerous violations:

The bridge in question had a significant history of failure. A similar derailment and collapse occurred in the same place on August 23, 2009. Even after purported repairs to the bridge, nearby residents reported to Defendants that they heard strnge noises coming from the bridge, including a loud “bang” when no train was on it. […]

During the year leading to November 30, 2012, the defendant received at least 23 “trouble tickets” reporting that the Paulboro Gridge had malfunctioned. […]

Since October 27, 2012, approximately one month before this accident, the defendants received at least nine such “trouble tickets” reporting improper operation of malfunction of the bridge in question.

The bridge was allowed to reopen to more hazardous chemical cargo shipments without being repaired or replaced, and before a NTSB accident investigation is completed.

Immediately after the accident, NJ Senator President Sweeney and recently passed US Senator Lautenberg have vowed to have the bridge repaired or replaced.Lautenberg had introduced federal legislation in 2011 to upgrade rail safety, but his bill went nowhere.

In March, I was relieved to read that the south Jersey Courier-Post  reported Damaged Paulsboro bridge will be replaced

The railroad bridge damaged during a train derailment and chemical spill Nov. 30 in Paulsboro will be replaced.

A new swing bridge over Mantua Creek is expected to be operational by September 2014, according to a spokesman for the bridge’s owner, Conrail. In the meantime, the current span will remain in use but the waterway that passes underneath will remain inaccessible to boaters until construction is complete.

But, despite numerous failed inspections and violations, the bridge didn’t seem to be on anyone’s radar screen, including the NJ DOT’s Rail Freight Assistance Program.

How many other old, defective, poorly maintained railroad bridges are there in NJ? How many more toxic train derailments are waiting to happen?

Like I said, I am no transportation expert.

But someone needs to explain the planning justification for identifying the need for private railroad projects as candidates for state funding, while ignoring 125 year old bridges that have caused serious accidents, all while hazardous cargo continues to be shipped through hundreds of NJ communities, putting  the safety of millions of NJ residents at risk.

 

Legislative Oversight Yields Troubling Findings That Confirm Criticism

DEP Flood Maps 40 Years Old – No State Funding – Only 1 DEP Staffer Working on Maps 

Wise men say that the road to recovery begins with an admission of the problem.

But it is absolutely amazing to hear the things that pop out of DEP staffers’ mouths when they are asked direct questions by legislators – legislators should do it more often.

Yesterday, DEP testified on a bill that would require updates to DEP’s flood maps for inland rivers  – PEER issued a press release highlighting this issue on December 19 –

NEW JERSEY YET TO COME TO GRIPS WITH POST-SANDY FLOOD RISKS – Coastal Maps Do Not Account for Climate Change Effects; Inland Maps Decades Old

We also wrote here about that issue back in December when Senator Gordon raised the issue with DEP Commissioner Martin and again in January when Gov. Christie issued emergency coastal flood rules

Simple questions from legislators elicited some astounding replies from DEP – replies that confirmed criticisms we have made for many years (e.g. see our 2005 testimony, which cited DEP staff recommendations from 2003).

But our criticisms have been ignored by DEP management, the media, and legislators. Thankfully, that appears to be changing in some legislative quarters, perhaps part of the wake up call from Superstorm Sandy.

So here’s the issue in a nutshell:

Despite NJ’s severe over-development in both flood plains and sensitive headwaters, and repeated flooding that has caused hundreds of millions of dollars in damages, here’s how DEP has been implementing the 1969 NJ Flood Hazard Control Act:

1) The hydrological and land use data used to generate the DEP flood maps is 40 years old;

2) The most recent “update” of the maps, funded by FEMA, merely reformatted the old data in digital form to produce digitized old maps;

3) Despite the fact that DEP stream encroachment program has issued thousands of permits that include fees to fund the program, the DEP basically has not had a flood map program for decades – the program was staffed by 1 person, and that was recently increased by 3 more staffers, who were funded by FEMA, not NJ State government;

4) Despite decades old maps, repeated severe flood damage, and no staff or budget for the mapping program, DEP managers never publicly acknowledged the problem or made a request that legislators appropriate funds, and Governor Christie did not fund the program in his budget.

Wow.

Legislators could find numerous similar problems if they merely called DEP staffers to testify in legislative oversight hearings – instead of the spin they accept from DEP Commissioners.

Sarah Watson of the Press of Atlantic City did a nice story:  Legislature moves 2 flood-related measures.

The bill in question – S2208 – needs some work –

DEP suggested amendments, one of which made sense (to set priorities based on flood risks). The other DEP amendment was designed to gut the bill by tying flood map updates to the availability of funds. When asked how much the map updates would cost, DEP repeated an inflated cost estimate of $82 million, based on $16,000 per mile and 5,000 river/stream miles.

Recall that in his December 3, 2012 testimony in response to Senator Gordon’s questions, DEP Commissioner Martin backed away from that and denied that this $81 million cost estimate (fiscal note) came from him. Martin now eats those words and doubles down, clearly an effort to derail the bill because he knows that the Gov. and legislators would never cough up that kind of money.

Senator Gordon agreed to the DEP suggestion about risk based priorities, but not the link to available funding.

Chairman Smith suggested an amendment to require an annual DEP Report to the Legislature in anticipation of the budget cycle.

Jeff Tittel of Sierra suggested an amendment to require DEP revisions to the Stream Encroachment regulations to require compliance with updated maps.

There seemed to be consensus on a set of amendments which were agreed to and the bill was amended and released – amendments are still not available.

I assume the bill will be referred to appropriations.

Even if this desperately needed bill is passed by both Houses of the Legislature, I strongly doubt that Gov. Christie would sign it because it imposes more stringent state regulatory requirements, and thus contradicts the Gov. policies in Executive Orders #2 (“regulatory relief”) #3 (“red tape”) and #4 (“unfunded State mandates”).

To invoke Senator Smith: elections do have consequences.