WolfeNotes.com

No Longer An Adversarial Role Between DEP Cops and Corporate Crooks

From Polluters to Customers

Radical Business friendly enforcement policy demands legislative oversight 

~~~ A wet nurse is a woman who breast feeds and cares for another’s child.

[Update: 7/21/13 – Morris Daily Record editorial agrees with us: Tip scales back to environment

A state Department of Environmental Protection spokesman said the new strategy often means “picking up the phone, not sitting at the desk and churning out 50 violations.”

That all sounds good. It’s also plain old nonsense, pure political spin. The violations falloff is just another sign that state government these days will bow to business demands over environmental concerns at every opportunity.

Tom Johnson at NJ Spotlight has an important must read story today:  At State DEP, Investigations Climb But Number of Enforcement Actions Falls

I’ve written in detail about how the Christie Administration has gutted enforcement of environmental laws and regulations, so I’ll just make a few quick points:

1. The steep decline in enforcement actions understates the radical policy shift

NJ Spotlight reports on data in a DEP Enforcement Report for fiscal years 2011-2012 –

Connecting critical dots, and avoiding the trap of journalistic he said/she said claims, the story links the enforcement decline with the Christie administration’s efforts to dismantle regulations and states a conclusion that comes down in support of environmentalists: 

In the state’s fiscal year 2012, there were 13,555 enforcement actions taken by the agency, a steep drop-off from the 29,570 violations cited by the agency four years earlier. […]

The report seems to bolster concerns from environmentalists that the Christie administration has taken a less aggressive approach to enforcing the state’s environmental laws, once considered among the most stringent in the nation.

That’s a 54% decline.

[Note: with so called “compliance inspections” allegedly increased by 40%, that 54% enforcement decline is even worse. What those numbers hide is the policy change: traditional compliance and enforcement  inspections, where DEP inspectors looked for violations of regulatory requirements, have been fundamentally changed. DEP inspectors now look in order to provide “compliance assistance” and cooperation. DEP now visits regulated facilities and sites acting as consultants to business, not cops.]

But as bad as that decline is, it reflects a fundamental and radical shift in regulatory and enforcement policy.

DEP enforcement staff have become consultants to regulated industry.

Historically, that has never been DEP’s role.

By definition, enforcement is supposed to be adversarial, to provide both punishment to the individual violator and deterrence for others.

The cop that pulls me over for speeding is not supposed to help me tune up my engine so I can go faster.

The adversarial relationship has been abandoned – DEP now provides customer service to business to enhance their profitability (see: DEP’s New Enforcement Priorities).

The spinmeisters at DEP mask this gutting of enforcement by slogans – like compliance assistance and sustainable business.

2. DEP Commissioner Martin – Mr. Metric – has no performance metrics  to assess the radical new policy

Bob Martin arrived on the scene with guns blazing, attacking DEP bureaucracy, DEP culture, and DEP science.

In addition to treating regulated businesses like ‘customers” and making DEP more “customer friendly, Martin pledged  to develop management and environmental metrics, to prove he could do more with less, while slashing job killing red tape.

Well, it’s been almost 4 years now and Martin has done squat – NADA, NOTHING. No Metrics. All slogans.

But Martin has slashed regulations and enforcement for Gov. Christie’s business cronies, at the expenses of the land, air, water, natural resources and future climate viability of the state.

3. The Christie DEP’s new enforcement policy is not authorized by statute, is  inconsistent with legislative intent, and therefore warrants legislative oversight.

The legislature enacts laws that provide for protective standards and requirements that must be met and  fines and penalties for violations of those laws.

The Legislature delegates enforcement discretion to DEP to assure compliance with those laws.

The legislative intent if for DEP to enforce those law under traditional concepts of punishment and deterrence reflected in the body and provisions of all environmental laws.

Those laws do not authorize DEP to surrender enforcement power and engage in consulting services for “business stewardship”.

The drastic drop off in enforcement performance and the radical new policy warrant legislative oversight, because the Executive Branch is engaging in lawless behavior that is inconsistent with statute and legislative intent.

Perhaps the annual summer joint hearings down the shore would be an opportune time to conduct that oversight.

4 . The staff declines also underestimate the institutional devastation due to loss of veteran staffers to retirements.

In addition to losing positions, DEP has suffered massive retirement of senior staff.

Loss of experienced staff is a major problem, especially because positions lost via attrition through retirements can not be replaced.

That personnel and budget policy must change.

Assistant Commissioner for Enforcement Wolf Skacel was a true professional – he just retired after a long and stellar DEP career. He will be missed.

The NJ DEP – The “D” Stands for “Deception”, “Denial” & “Delay”

With a few issues I worked on for a long time back in the news, I thought I’d provide a few quick updates:

I) Delaware Drownings and “The Hot Dog Man”

It seems like deception and denial and delay is DEP’s MO here.

There have been a series of recent drownings in the Delaware river (see today’s Hunterdon County Democrat story:  State Park Police investigating death following July 7 Delaware River tube trip

DEP just got caught red handed in and was called out for a “D”, for deception.

DEP spokesman Larry Ragonese initially said State Police were leading the investigation, but confirmed today that State Park Police are taking the lead.

DEP initially falsely denied a role in the investigation, but that’s nothing compared to the fact that DEP  has been in denial on this issue for a long time.

Most recently, the DEP denial is related to their failure to address these serious growing risks in a sweetheart controversial lease to “The Hot Dog Man”.

For background on “The Hot Dog” man dispute, see:

• Delaware River “Hot Dog Man” in Hot Water
• Delaware Wild & Scenic River Group Joins Bull’s Island Debate
• Hunterdon County Democrat Editorial Supports “Hot Dog Man” Operation

For the most recent developments in that controversy, see today’s Hunterdon County Democrat story on what that’s all about:  Kingwood to hear from Delaware River Tubing’s environmental expert tonight, July 10

The DEP lease to the “Hot Dog Man” fails to adequately address safety issues.

That is an egregious omission that they do not want to be held accountable for, so they had a reason to mislead the press about the DEP role in the drowning investigation. With DEP taking the lead might come questions about DEP policy on Delaware drowning risk.

The failure of DEP to properly address safety issues in the lease also may put the State of NJ and its taxpayers on the hook for liability.

That liability could arise  in the event of lawsuits from the families of any drowning victims that use the river, the D&R Canal State Park along the river, and/or the tubing services provided by the Hot Dog Man under the State DEP lease.

Potential DEP liability and the DEP lease with the Hot Dog Man also are conflicts of interest and good reasons why the DEP Park Police should not be conducting this most recent drowning investigation.

The DEP should take responsibility for river safety, in the same way that the National Park Service issues river safety warnings and guidance at the Delaware Watergap National Recreation Area.

Safety is an essential government function.

DEP has denied and abdicated that role. even for safety related to use of a State Park and the leasing state park lands to a river tubing operation associated with drowning risk.

Why should river safety  be the role of a local business?

Drowning risks along this stretch of the Delaware are a longstanding problem – as is DEP’s denial about it.

In a October 2012 interview in the Philadelphia Review of Books, I noted the following on Delaware drowning risk:

… a teenager from Trenton drowned in the Delaware River recently while picnicking with his family at Bull’s Island. The river there has a dangerous “rip current” created by the chute in an old wing dam. There were no crocodile tears cried for that tragedy and the DEP didn’t even take steps to post signs at access points along the river warning about the hazard.

That current in the river along the park is a real and high risk they totally ignore while chasing absurdly low probability ghosts from trees. Why? Two reasons: 1) kids from Trenton just don’t matter to this administration; and 2) the Commissioner has a warped view of nature (he had a similar over-reaction when he shut down oyster restoration research in a polluted waters project because theoretically someone could poach the oysters and might get sick). He sees risks from nature, while he deregulates real risks from chemical plants and industry. The DEP press office routinely blames “nature” for environmental problems: sunlight for air pollution; wind for ocean algae blooms.

So, looks like DEP press office is at it again

II) Stench From Johanna Farms Flemington Plant

Johanna Farms stench is back in the news, see today”s aptly titled  Hunterdon County Democrat story:  Johanna Foods to return July 10 with revised plan for preventing wastewater stenches

We broke and have been involved in that case for years, see:

• Johanna Farms Flemington Plant Upset Causing …
• Stop the Stink in Flemington – Johanna Farms …
• Johanna Farms‘ Industrial Odors Hiding Behind …
•  Johanna Farms Expanding Odor Update – The …
•  Johanna Farms Flemington Stench Spreads to … 
• Flemington Stinks Again – DEP Still Does Nothing
• DEP calls on Johanna Foods to reduce sludge odors after residents …
• Right-to-farm vs. smelly sludge: West Amwell officials refuse 

Johanna still has not installed the new treatment systems to control odors the DEP should have mandated several years ago.

DEP gets the “D” for delay in this case.

Case closed.

Pipeline Route and Drilling Hit Known Vulnerable Limestone Geology

How Many Other Places Along Pipeline Are Prone to Collapse?

Same Project Plans to Put Gas Pipeline Under Monksville Reservoir

sinkhole collapse on River Road, Montague, NJ (7/9/13) – apologies for the blur, it was raining and my lens got wet

On Monday, drilling for the Tennessee Gas Pipeline created a sinkhole that caused the collapse of a portion of River Road in Montague, NJ (for local news coverage, see:  River Road closed following roadway collapse).

Luckily, especially for nearby homeowners, the collapse occurred BEFORE the pipeline was installed and carrying gas. A collapse of an operating gas pipeline likely would cause a major explosion and fire.

The accident is not the first major fuckup by Tennessee.

And it’s not the first evidence of lax government oversight.

The sinkhole collapse is part of a pattern of seriously negligent, reckless, and illegal pipeline construction practices that have caused tremendous environmental damage in NJ (for warnings and photos of pipeline violations we’ve previously published, see this and this and this).

The latest sinkhole collapse raises important questions of how this could have been allowed to happen and whether there are other places along the pipeline route where sinkholes could cause the catastrophic collapse and rupture of the gas pipeline – there could be numerous literally ticking time bombs.

The collapse also raises questions about the adequacy of the environmental review,  permitting, and construction compliance monitoring of the project by federal and state regulators, and whether the proposal to route the pipeline under the *Monksville Reservoir should be abandoned.

The limestone and karst geology in the northwestern portion of NJ and the risks of sinkholes have long been known to federal, state and local officials – and in exactly the location site where the sinkhole emerged.

How did Tennessee engineers and government regulators apparently miss that?

We urge the following immediate actions:

• We urge federal and state officials to issue an immediate stop work order and conduct an investigation along the entire pipeline route where there are risks from sinkhole collapse.

• We urge federal and state regulators to take aggressive enforcement action against Tennessee Gas Pipeline for this negligence and major violation of drilling permits, including penalties to assure that all damage is restored.

• In light of these kind of risks – created by known and unknown geological conditions – to reconsider and reject pipeline routing under the *Monksville Reservoir.

• We urge state and federal regulations to beef up inspection and enforcement oversight of this pipeline construction to prevent any more accidents and damage.

From the NJ State Geologist:

KARST IN THE DELAWARE WATER GAP NATIONAL RECREATION AREA

INTRODUCTION

Recent mapping in northwestern New Jersey detected a large number of karst features found along Wallpack Ridge in the Delaware Water Gap National Recreation Area (fig. 1). Dozens of small sinkholes, sinking streams, springs and small caves were identified. 

Karst areas are also susceptible to the impact of human activity and can be used to monitor environmental health. In addition to its value as a natural resource, karst areas are prone to ground subsidence due to the formation of sinkholes. 

(source NJGS)

From the US Geological Survey:

Structural and lithologic control of karst features in northwestern New Jersey 

Abstract

Development is rapidly replacing farmland in western New Jersey with new housing tracts. Much of this new suburbia is underlain by carbonate bedrock so the understanding of karst formation and control is important in pre-development planning. We have initiated an ongoing study of karst, including sinkholes, caves and springs in an attempt to characterize the karst potential for these carbonate rocks.

These rocks experienced two strong deformation events in the Taconic and Alleghanian Orogenies and form a classic fold and thrust belt. Middle Paleozoic carbonates lie along the northwest boundary of New Jersey within parts of the Delaware River National Recreation Area.

Data for Map 12: Potential Locations of Limestone Forest in Sussex County, is sourced from NJGS’s geologic data and the NJDEP’s 1995/97 Landuse/Landcover data. It represents all forested lands that overlie limestone bedrock and thin glacial till. This map has not been field verified and provides an indication of potential areas where limestone forest is located.

According to Map 12, limestone forests occur in three distinct regions in Sussex County. The first is located adjacent to the Delaware River, on the western slope of the Kittatinny Ridge. This area extends from the Walpack Bend north into Montague.

pipeline construction in Montague, just above sinkhole collapse

note steep slopes and erosion controls along right – modest rainfall likely to wash out

pipeline bored under road – another potential sinkhole collapse? (homes and church about 200 feet away)

note steep slopes and inadequate erosion controls on right

Methodology for Calculating Costs & Benefits Is Key

Too Many “Free Riders” on the Storm – Huge Social Costs

this is what a natural dune looks like - Long Beach Island State Park, NJ

I hope that when they do a real economic analysis to determine the value of “just compensation”, that ALL of the “free rider” benefits and social costs are calculated and the net result is negative – resulting in a BIG stiff fee to those selfish folks who brought this lawsuit, and their reckless fellow fools who live in similar locations. ~~~ Bill Wolfe

Yesterday’s NJ Supreme Court decision on the issue of whether oceanfront property owners should be compensated for their loss of views caused by building a protective dune on their property is getting lots of media play, e.g. see Tom Johnson, NJ Spotlight:  High Court Finds in Favor of Dunes, Not Beach-Front Views

I haven’t read the  opinion yet, but from what I can tell, the Court agreed that “just compensation” was required for the taking, but that the amount of compensation must consider the benefits provided to the property owner by the dune.

So, I thought I’d make a few points on all that.

First of all, the coverage fails to distinguish natural dunes from engineered dunes. As I’ve written, there’s a big difference, see:  Orwell: On Dunes and “Seaside Recreation Platforms”

More importantly, in emphasizing the

widespread consensus emerged that communities with established dune systems fared far better than towns without such established natural barriers

the coverage also is reinforcing the false notion that dunes are a panacea.

Like beach replenishment projects, dunes create a false sense of security and invite inappropriate development in hazardous locations.

Before DEP was taken over by the Christie amateurs, DEP used to consider this false perception an “impediment” to coastal management goals and DEP used to warn the public about this:

All of the impediments to meeting this 309 programmatic objective that appeared in the last New Jersey Coastal Zone Section 309 Assessment and Strategy remain. These include lobbying efforts of special interest groups, legal challenges to DEP permit decisions, provision of flood insurance through the National Flood Insurance Program, and public perception that large-scale beach nourishment projects eliminate vulnerability to coastal hazards.

But, in rejecting a huge compensation payout, the Court apparently required some form of more sophisticated economic analysis of the calculation of “just compensation”.

It appears that, at a minimum, this calculation must include consideration of the economic benefits provided by the protective dunes.

The scope and methodology of this analysis are key – both with respect to the economic benefits provided by dunes, but also to the costs of coastal development in hazardous locations.

From what I suspect – without having read the opinion – I assume that the  new compensation calculation the court directed is narrowly limited in scope to the economic benefits provided by the dunes to the individual property property owner – as opposed to, for example, properties that lay behind the dune or further away along the back bay.

But, the full costs and benefits are much broader than the individual property owner.

Similarly, development in a hazardous location imposes significant “external costs” to neighbors, the community, and all taxpayers – federal, state, and local.

People who build in hazardous locations should not be compensated one thin dime.

Just the opposite, they should pay premiums, taxes, and fees for all the costs they impose on their neighbors, community, and taxpayers and for all the benefits they receive as “free riders”.

Here are just some of those costs:

1. Houses is hazardous locations do not pay the true costs of insurance – all federal taxpayers subsidize those federal flood insurance program below market rates. Make those people pay higher premiums. Give the rest of us a tax break.

2. Development in hazardous locations increases the entire community’s risk ratings, and thus insurance costs. Make those in the most hazardous locations – like beach and bay fronts and along rivers and streams – pay a fee for this cost they impose on the community.

3. Homes in hazardous locations require more emergency services, and put first responders at risk. They also require additional public services and maintenance. Make them pay special assessments to pay for those services.

4. Development in flood hazard areas displaces natural flood storage and makes flooding worse for nearby properties (think of putting a cinder block in a full bath tub). They should pay a fee for the volume of water they displace, which makes flooding worse in other locations.

5. Houses hit by flooding can become projectiles and damage nearby homes and public infrastructure. We all pay for this damage caused by floating unmoored homes sand debris.

6. And then when the catastrophic storm hits, we all pay billions to pay for the damages – emergency response, cleanup, and rebuilding. This bailout amounts to a HUGE subsidy and welfare to those who choose to live in hazardous locations.

And of course, irrespective of storms, private property owners reap huge benefits from public investments like roads, sewer, water, sidewalks, parks and schools, not just protective dunes.

All the benefits of public investment to private property owners should be recouped.

All the costs imposed on society by private development should be captured and compensated for.

So, I hope when they do a real economic analysis to determine “just compensation”, that ALL of these private benefits and social costs are calculated and the net result is negative – resulting in a BIG stiff fee to those selfish folks who brought this lawsuit, and their reckless fellow fools who live in similar locations.

Riders on the storm, riders on the storm

Into this house were’ born, into this world we’re thrown.  ~~~~ Riders on the Storm – The Doors

Normandy Beach, NJ - dunes eroded, homes vulnerable (before Sandy)

Stream “Restoration” Project Facilitates Controversial New Development

Mitigation Deal Masks Lack of DEP Enforcement & Flaws with Concept

The headline in today’s Bergen Record story sounded like some good news: Cleaning a stream in Emerson Woods will help Oradell Reservoir.

I mean, who would have a problem with a clean stream and protecting a reservoir, right?

Well, as I read the story, and learned how the so called “stream cleaning” project originated and was designed and funded, I now do.

The regulatory policy behind this deal is based on the idea that its OK to destroy one place, and then off set that damage by partially fixing up some other place.

Or the notion that restoring existing damaged natural resources or pollution problems can only be funded by creating more new development or pollution sources – the causes of the problem to begin with. Kind of like funding cancer research with cigarette taxes.

DEP regulators call this “mitigation” or “net environmental improvement”.

The whole idea is an expression of hubris and a fool’s errand.

So, let me use an analogy to illustrate what’s really going on here.

Suppose an arsonist burned down your neighborhood.

After an intense manhunt, the police catch the felon. But, after reviewing the case,  a prosecutor decides that everything is OK, just as long as the arsonist mitigated the destruction of your home and neighborhood by building a few new temporary shelters somewhere else nearby.

How crazy would that be?

But that’s what the policy is and what DEP routinely does in the process of allowing destruction of wetlands, streams, forests and toxic soil and groundwater pollution. They act like the prosecutor letting the arsonist off the hook.

Adding insult to injury, after the fact, to facilitate the prosecutor’s deal, some out of town “green” group comes along and makes a few bucks covering the prosecutor’s ass from media criticism and flack from the burned out neighbors – all while working as the go between the arsonist and the prosecutor – and providing favorable PR and generating positive news stories.

So, let’s take these issues one at a time, and pierce this Green Ponzi scheme.

A full analysis of this situation really requires site specific field work and DEP file review, but I will work off only the news stories. So, due to those sources, bear with me as I may get a few things a little wrong, but in the main my policy arguments hold up to scrutiny and are supported by science.

I) “Mitigation” often substitutes and provides cover for lack of enforcement

Based on reading the story, it sounds like the longstanding stream erosion and water quality problem the restoration project was designed to “fix” was caused by storm water discharge from a DEP regulated point source:

During major storms, a large storm-water pipe coming out of the main stream would pour out water into a gully created by natural erosion and development of the surrounding area, Catania said. The debris in this overflow would then get carried to the reservoir.

Who designed and built this storm-water pipe? All storm water outfalls are regulated under the Clean Water Act and must be issued DEP permits. Who held the  DEP issued NJPDES permit for this outfall? Obviously, there were permit violations here.

DEP enforcement of that storm water permit violation should have occurred long ago, and that enforcement action should have funded the restoration work for the damage caused by the permit violation.

We didn’t need any additional new development to fix the storm water problem – traditional enforcement would have worked just fine. And we might have been spared the ERA development project (see below), had DEP denied permits to that project that could not avoid or mitigate damage on site.

Lack of DEP enforcement is a statewide pervasive problem.

But Mr. Catania – who was invited to participate in this case by DEP and would never bite the hand that feeds him – does not mention any of that and instead his spin (“This problem didn’t get created overnight”) and omission implies that there is no DEP responsibility for the original underlying field erosion and water quality problems.

In fact, just the opposite impression is created: DEP is made to look good because they required the stream restoration as a permit condition for another development. Which takes us to my other concerns with these kind of “mitigation” “restoration” projects.

II) “Mitigation” and “restoration” rarely works

First, the whole idea of “restoration” is flawed.

“Restoration” rarely if ever restores the site to original condition.

And destruction of natural resources and/or water quality at one location can never be offset for partial improvements in another location.

DEP’s controversial “waiver rule” is built on this flawed concept of “net environmental improvement” – a regulatory policy that lacks any scientific basis or valid methodology.

A while ago, before the current Christie amateur regime, DEP scientists issued a Report on systemic failures in wetlands mitigation program:

The evaluation of 90 select freshwater wetland mitigation sites around the State of New Jersey indicates that between 1988 and 1999 wetland mitigation practices have not been effective in meeting NJDEP’s NEPPS goals for increasing wetland quantity and quality in New Jersey. Less than one out of every two acres of proposed mitigation resulted in achieving a freshwater wetland. These findings are generally consistent with a study conducted by the National Research Council (NRC 2001).

Things have not improvement much since that Report was issued in 2003.

Natural ecological systems are far too complex for engineers and regulators to “fix”.

Even well planned, designed and constructed restoration projects frequently fail – and in fairly short order – due to lack of proper maintenance.

III) Mitigation facilitates inappropriate new developments

Mitigation is used as a mechanism to allow approval of destructive projects that should never have been approved in the first place, under the misguided thought illustrated in my arson analogy and DEP “mitigation” policy and “waiver rule”.

In this case, the source of the requirement for mitigation was a development project called “ERA South”. According to a prior Record story, that is a controversial and complex project recently involved in a  $8.5 million deal in Englewood.

But, we hear nothing about any of that controversy  in today’s “good news” story.

Instead, we are told this partial and favorable account, which puts a happy green face on the whole dirty deal:

Conservation Resources received the project’s funds from a developer, ERA South, which had completed a redevelopment project in Englewood.

ERA South needed to complete 600 feet of watershed mitigation to fulfill a permit requirement, Catania said.

ERA South tried to do this on-site, but when it turned out not to be feasible, the Department of Environmental Protection approached Conservation Resources to see if there were stream restorations projects in the same watershed. This led to Conservation Resources funding the Emerson Woods restoration project and a similar project in Englewood, Catania said.

Which takes me to my final concern about “mitigation” projects.

IV) Mitigation financing is ethically challenged

Take a look at the above schematic.

There are multiple relationships and multiple potential conflicts of interest.

The public is rarely told about the structure of these complex deals.

Groups like Conservation Resources play a quasi-regulatory role and a public relations role, with little accountability to the public.

The net effect from a PR standpoint is to provide cover for both the bad guy (developer, polluter, etc) and the lax DEP regulator.

Today’s Record story is a perfect example of that – it all sounds so good, until you scratch the surface and start looking into it.

And that’s why it’s a Green Ponzi scheme.

(and for those interested in another huge example of this kind of abuse, you’ll never hear these criticisms expressed by Mr. Catania, who does many NRD deals with DEP).