WolfeNotes.com

Plan Developed By Private Consultant Behind Closed Doors 

Public Comments Will Be Ignored

With this increase in frequency of precipitation, New Jersey may experience more flooding events. More intense, frequent flooding could lead to significant habitat loss for wildlife. Salt marshes and estuaries that serve as critical feeding grounds for birds and waterfowl, and as nursery habitats for commercial fish, could be lost (State of New Jersey 2010). Future climate change may also lead to sea level rise which could lead to more frequent and extensive flooding. See Section 5.2 (Coastal Erosion) for detailed information regarding sea level rise (NJDEP 2013c).

[Update: 3/22/14 – National media coverage, but none so far in NJ:

• Mother Jones:  Watchdog: Chris Christie’s Post-Sandy Proposal for Federal Funds Is “a Contradictory Mess”

• Huffington Post:  Chris Christie’s State Agencies Are Worried About Climate Change, Even If He Isn’t – end update].

The Christie Administration quietly posted its first post-Sandy Hazard Mitigation Plan (HMP) on the Office of Emergency Management website last week – there were no press releases, Town Hall topics, or ribbon cutting ceremonies touting the Plan.

[The Plan was developed with no public outreach or participation (see “Plan Development” section), and the version submitted to FEMA will not consider public comment, according to an official OEM spokesperson.]

The HMP is federally mandated as a condition of receiving federal disaster assistance funding.

Despite the extent of Sandy devastation and scientific consensus on climate change and sea level rise, the Plan plays lip service to real hazard mitigation efforts to reduce vulnerabilities and risks of sea level rise and climate change driven extreme weather events.

Consider the figure above on heavy precipitation events (they lead to floods) as a perfect example of how the HMP plays lip service to the risks of climate change. Existing data shows a trend of more frequent and heavy rainfall events. Climate change is predicted to increase the frequency and severity of heavy precipitation even more, leading to more and worse flooding.

Yet despite existing data and climate change projections, the Plan proposes no measures to mitigate flood risks in response to this science – like updating inland river flood maps, or increasing flood elevations, or increasing building design requirements (2-3 feet of freeboard instead of just 1), or limiting development, or using the more conservative 500 year flood event instead of the 100 year event.

[NJ’s inland river flood maps are 30+ years old and Christie DEP has opposed legislation that would mandate that DEP update them. The HMP does nothing to “mitigate” that set of problems!]

The Plan also is full of contradictions and flaws – here’s a map of my favorite.

This map shows the the portion of the barrier island in Mantoloking as a “low”susceptibility – or  risk – for erosion from sea level rise and storm surge – the exact location where storm surge cut the barrier island and wiped out Rt 35 and the bridge across Barnegat Bay! LOOK!

Source: NJ Hazard Mitigation Plan - Section 5.2

Here is what that “low” susceptibility location looked like after Sandy:

Source: Baltimore Sun

Read the complete story and get links to the documents below, from out friends at PEER:

Press Release

For Immediate Release:  Thursday, March 20, 2014

Contact:  Bill Wolfe (609) 397-4861; Kirsten Stade (202) 265-7337

Christie Sandy Hazard Reduction Plan a Contradictory Mess

No Public Input or Legislative Review of Belated Plan to Qualify for Federal Funds

Trenton — The Christie administration has posted a sprawling post-Sandy Hazard Mitigation Plan which conflicts with its own announced projects, ignores known threats, and contains numerous flaws, according to Public Employees for Environmental Responsibility (PEER), which is calling for legislative oversight hearings.  Required as a prerequisite for significant federal infrastructure aid, the plan was prepared by a private consultant with no outside review.

All states must have a Federal Emergency Management Agency (FEMA)-approved hazard mitigation plan to be eligible for disaster recovery assistance and mitigation funding.  Although it is due by the end of March, New Jersey did not release its Hazard Mitigation Plan (HMP) until last week.  Even a cursory review suggests a number of fundamental flaws, including:

• The plan condemns the hard anchoring of seawalls, jetties and groins as exacerbating coastal erosion, but New Jersey is already building those “hardening” projects on eroding coastal stretches, such as the $40 million steel seawall to “protect” the $265 million reconstruction of highly vulnerable Rt. 35 which was washed out by Sandy storm surge;

• While finally acknowledging the reality of climate induced sea-level rise, it offers no plan to address flooding that will inundate some of the most populous Jersey Shore stretches, including severe back bay flooding along Barnegat and Raritan Bays, the areas hardest hit by Sandy. A Rutgers professor has called back bay flooding “New Jersey’s Achilles heel”; and

• The plan is studded with obligatory references to scientific findings on the effects of climate change but does not integrate that science into state planning or changes in building codes, project designs, regulations or plans to spend billions of federal aid dollars.

“This plan reads like it was put together at the last minute by a sleep-deprived college student furiously cutting and pasting regardless of whether it is coherent,” stated New Jersey PEER Director Bill Wolfe, noting, for example, that the report touts the role of the Office of Coastal Management in the DEP Commissioner’s Office which no longer exists after Gov. Christie abolished it.

“In order to qualify for federal funds, the Christie administration is forced to give lavish lip service to climate change but its rhetoric is disconnected from its actual plans.”

Similar deficiencies have prompted the U.S. Department of Housing & Urban Development (HUD) Office of Inspector General to expand its audit and enforcement efforts on New Jersey’s plan for spending nearly $1.5 billion in federal reconstruction aid, partly in response to a PEER complaint.  In addition, the state’s muddled criteria for distributing energy infrastructure grants to municipalities, where certain cities like Hoboken, were mysteriously shortchanged, has a separate legislative investigation.

The last-minute nature of this latest state plan has also precluded legislative or other outside scrutiny:

• The state is soliciting public comments by April 11, nearly two weeks after the plan will have been submitted to FEMA;
• Nor was any public hearings or outreach to solicit public input in developing the plan; and
• The planning was outsourced to a private consultant who conducted invitation-only meetings.

“What is the point of soliciting public comment that will be utterly ignored?” Wolfe asked, pointing out that the same small band of officials and consultants who dragged out these previous plans that are now under question are at work here.  “The process employed here typifies governing style that is hyper-politicized, fiercely insular and ultimately utterly ineffective.”

###

See the New Jersey Hazard Mitigation Plan

View sampling of errors on the HMP 

Look at HUD expanded oversight of New Jersey plans

Examine problems with state’s allocations of emergency energy grants

Revisit Christie inability to admit climate change effects

#

New Jersey PEER is a state chapter of a national alliance of state and federal agency resource professionals working to ensure environmental ethics and government accountability

DEP Evades Drinking Water Standard MCL Regulatory Process

DEP Gives Chemical Industry A Big Heads Up and Opportunity To Kill

DEP Abandons Historic Precautionary & Protective Approach to Scientific Uncertainty on Health Effects

[Update: 3/23/14 – In light of new information, I need to clarify claim that DEP is evading MCL regulatory procedure, see: When The Spell is Broken. – end update]

In a deviation from historic policy and practice, last Friday, DEP quietly posted on its website a request for public comment on what is sure to be a controversial new “Interim Specific Groundwater Quality Criterion” (ISGWQC) for the toxic chemical perfluorononanoic acid (PFNA), see:

REQUEST FOR PUBLIC INPUT  ON THE DRAFT INTERIM SPECIFIC GROUND WATER QUALITY CRITERION AND PRACTICAL QUANTITATION LEVEL FOR PERFLUORONONANOIC ACID (PFNA) – MARCH 14, 2014

Oh boy, that’s a mouthful – What the hell is PFNA and an ISGWQS you ask?

And therein lies the rub. Work with me on this, it’s complicated.

But before I can get to why I think DEP may be “faking it”, I need to lay out a little background.

• What are the environmental & health issues with PFNA?

PFNA recently has been discovered in the groundwater and drinking water of several south jersey towns, most visibly in media coverage is the situation in Paulsboro. I wrote about the implications of that situation in this post: Paulsboro NJ Suffers Another Toxic Assault.

The suspected source of the chemical is the Solvay Solexis chemical plant just north of town in Thorofare. The plant has failed to cleanup groundwater contamination and EPA and DEP regulators have not enforced federal and state laws to mandate a complete and protective cleanup.

So, the case also highlights major regulatory failures as well, particularly in the RCRA Corrective Action program, a toxic site cleanup program enacted by Congress in 1984, which, 30 years later, NJ still has not been delegated authority from EPA to implement.

Attorney and former DEP Commissioner Bradley Campbell is representing Paulsboro in a lawsuit against Solvay-Solexis, alleging an “imminent and substantial risk to human health and the environment”. That lawsuit raises a host of significant controversial issues. For details, see this.

Campbell capably nails the scientific, regulatory, and political issues as the obvious source for this Inside EPA national story:

Simultaneously, the mayor of Paulsboro is appealing to New Jersey Gov. Chris Christie (R) to intervene and task the state with undertaking blood studies of residents, using the state spill law and other laws to force Solvay to provide alternative drinking water in the interim, hold public meetings on the risks at the site, and reconvene the NJDEP Drinking Water Quality Institute, in order for it to develop standards for PFCs in drinking water. 

We’ve been a longtime critic of the fact that the Drinking Water Quality Institute has not met since September 2010, while DEP regulatory standards programs are in disarray, and there is  a huge backlog of scientific recommendations to tighten drinking water standards that are being ignored by the Christie DEP.

So, the Campbell lawsuit and the DEP’s draft ISGWQC for PFNA shine a huge spotlight on some major league problems at the DEP.

According to DEP, exposure to PFNA is associated with adverse health effects:

• What are the regulatory issues?

Here is DEP’s explanation of an ISGWQC:

Regulatory Background: The Interim Specific Ground Water Quality Standard process is initiated when the Site Remediation program, or other regulatory program within the Department, identifies the need for a Ground Water Quality Standard (GWQS) for a contaminant that is not included in the Ground Water Quality Standards (N.J.A.C. 7:9 Appendix Table 1). Calculation of an ISGWQC combined with the PQL is used to develop the Interim Specific Ground Water Quality Standard. The Site Remediation Program deems the Interim Specific Ground Water Quality Standards to be ground water remediation standards pursuant to the Remediation Standards at N.J.A.C. 7:26D-2.2(a)1. See: http://www.nj.gov/dep/wms/bwqsa/gwqs.htm for additional information on GWQS.

It is important to note exactly what an ISGWQC is, where and when and how it applies, and what it is not:

1) t is NOT a drinking water standard (i.e MCL). So, water companies will not be required to test for it; disclose results to consumers; treat to remove it to the level that DEP proposes in the IGWQS (20 nano grams/L)

2) it is NOT promulgated as a regulation based on a recommendation from the NJ Drinking Water Quality Institute. So, DEP dodges the reality that the DWQI is dormant or dead.

3) it is Limited to the site remediation program, where groundwater quality standards are implemented in the cleanup process. So, the DEP’s draft ISGWQS, if adopted as final – which is a big “if” at this point – wil only apply in a very limited number of sites where PFNA contamination os suspected.

4) it is NOT adopted a a formal regulation in accordance with formal rule making procedures. This procedural defect raises issues of whether the ISGWQS can be enforced and it invites litigation by the chemical companies that DEP may try to apply it to.

•  So what is the problem?

DEP is posting the draft ISGWQC on the DEP website and inviting public comment. DEP announced that a more detailed technical document will be posted next Friday (3/21/14). What’s wrong with that?

Historically, DEP merely posted a notice on the website regarding their adoption of an IGWQC. DEP provided no public comment opportunity. That process is allowed under DEP rules, which have nothing about a public comment process.

The DEP’s new approach to providing more public participation, at best, is done in deference to industry criticism.

But, at worst, more significantly and more likely, DEP’s provision of additional opportunity for public comment while revising the basis for action mirrors sophisticated chemical industry tactics used in two recent legislative rollback efforts:

1) the attempt to stack the Drining Water Quality Institute with industry representatives, alter the procedures for setting regulatory standards, and alter the scientific factors that may be considered by DEP in setting those standards, see:  Should the Chemical Industry Have a Role in Writing Your Drinking Water Standards?

2) the bid to revise the process for recommending sites for consideration for listing as Superfund sites, see: NJ Legislators Propose To Change State Role In Superfund Site Listing Process

In a sophisticated attempt to game the regulatory system, both those industry strategies create the appearance of improving the process and providing more transparency, while actually biasing the process in favor of industry interests.The DEP’s ISGWQC shares exactly those misleading appearances, while failing to pull the real regulatory trigger.

1. The process helps industry lobbyists more than public interest advocates.

DEP’s basis and background document acknowledges that there is scientific uncertainty regarding health effects. What’s wrong with that?

Plenty. And this takes me to my concern that DEP is faking it.

If DEP seriously wanted to address drinking water risks of PFNA, then the appropriate procedure to do so if via a referral to the Drinking Water Quality Institute to develop a recommended drinking water MCL.

DEP would then adopt the DWQI recommended MCL as an enforceable regulatory standard. Water companies would be required to monitor, treat and inform consumers about PFNA, just like all other regulated drinking water contaminants.

The chemical industry would be provided ample opportunity to challenge the DWQI science, risk assessment, and the DEP regulation in the formal and transparent rule-making process.

But, DEP didn’t do any of this. And that’s what troubles me.

DEP even deviated from their historical practice of simply announcing a ISGWQI as a fait accompli. Instead, DEP is allowing for a 30 day comment period and going beyond even that to provide an additional week heads up.

So, what’s wrong with giving more time for public comment?

Plenty – more time gives industry scientists and lobbyists more opportunity to intervene behind the scenes without the accountability that the formal regulatory process provides.

Similarly, more time and opportunity to comment gives industry an advantage, as no NJ environmental group has adequate scientific or legal expertise  to credibly and effectively intervene. We must simply admit that industry has the public badly outgunned on maters of scientific and legal expertise required to participate effectively in complex regulatory proceedings like this.

The longer DEP allows this proposal to twist in the wind, the more likely it is to be killed.

2. The proposed ISGWQC abandons DEP’s historial precautionary approach to scientific uncertainty regarding health effects.

Traditionally, the DEP’s approach to addressing legitimate scientific uncertainty in evaluating the health effects and regulating toxic chemicals is to err on the side of caution and build in conservative factors, based upon the most sensitive population exposed. That is a legally and scientifically valid and appropriate “precautionary” policy approach to science.

At the same time, a longtime tactic of industry to derail, delay, and weaken costly environmental and public health regulations is to exploit uncertainty and “manufacture doubt” about the science.

We recently wrote about how the tactics exposed by Professor David Michaels’ classic book “Doubt is their product: How industry’s assault on science threatens your health” were deployed in NJ by Dupont corporation with respect to their toxic chemical PFOA, see:

• Dupont: Doubt (And Intimidation) Are Their Product

So, depending on who is making the argument, uncertainty can work both ways – as a rationale to err on the side of caution or to provide an excuse to do nothing.

In this case, the DEP seems to be using scientific uncertainty in exactly the wrong way. Instead of a precautionary approach, DEP is pursuing an industry friendly approach that errs on the side on resolving the uncertainty in a manner that is certain to poison the public and the most sensitive population.

That change in scientific approach to uncertainty in found in this paragraph, which explicitly states that in the summary:

We urge competent public interest toxicologists to look closely at this particular issue of how legitimate uncertainty was resolved numerically.

The bottom line is that this DEP ISGWQC is an unusual deviation – both procedurally and substantively – from past practice.

Both the process and the substance appears to benefit industry at the expense of public health.

In fact, DEP may have made errors in not promulgating this IGWQC as a MCL regulatory standard, thus inviting industry legal and political challenge – thereby sabotaging their own work instead of doing the right thing (which would shine a spotlight on DEP’s failures regarding the DWQI).

Thus, the “faking it” concern.

Sea Level Rise and More Severe Coastal Storm Surge Wipe Out Both

I am working on something else today, so will keep this note brief.

I just read another Scott Gurian NJ Spotlight story on Sandy recovery, this one emphasizing the relative allocation of Sandy recovery funds between housing versus infrastructure, see:

•  NJ’S PLAN FOR NEXT BATCH OF SANDY AID KEEPS FOCUS ON HOMEOWNERS, RENTERS

The story’s focus is misplaced (again) and it manufactures a false conflict between planning, environmental, and housing advocates.

The fundamental flaw that unites the housing and infrastructure programs is the Christie Administration’s failure to plan.

There is no plan – and no vision – for the coast as a whole, especially in light of rising sea levels and more intense coastal storms as a result of climate change.

Shockingly, the NGO’s are not providing that criticism or that vision.

The failure by the Christie Administration to plan and seriously engage climate change risks are far more significant than the relative allocation issue between housing and infrastructure.

Housing and roads and water and sewer and energy infrastructure are equally vulnerable to climate change impacts. And they all must be integrated in a land use plan that works – otherwise we simply rebuild the failed status quo and highly vulnerable development pattern.

Buying vulnerable properties without an overall land use and development plan is a fool’s errand.

In fact, President Obama issued an Executive Order on exactly this issue: adaptation to climate change – and HUD revised their CDBG funding rules along similar lines.

No time to rehash all this right now – readers may be interested in this analysis:

• CHRISTIE CLIMATE DENIAL IMPERILS SANDY RECOVERY FUNDS

• NEW CHRISTIE SANDY SPENDING PLAN HAS GAPING HOLES

Business Community Joins Governor Christie In Turning Back the Clock on Toxics

Drinking Water At Risk Due To Lack of Treatment Technology To Remove Toxics

Toxic Race to the Bottom

Michael Egenton, lobbyist for NJ Chamber of Commerce

For decades, NJ was a major importer of solid and hazardous waste and a huge generator of hazardous waste.

State laws and DEP permits did not restrict the disposal or discharge of toxic pollutants to sewage treatment plants, NJ waterways, or landfills.

As a result, NJ led the nation in Superfund sites and our groundwater, rivers, wildlife, and river sediments were loaded with toxic chemicals.

It took decades of strong environmental laws and regulations, backed by billions of dollars of investment by the government and the business community to begin to reverse this outrageous situation.

One example of these laws is the NJ industrial pretreatment program, which mandates that industries that generate wastewater that contains toxic organic chemicals and heavy metals treat that wastewater prior to discharging it to sewage treatment plants.

The pretreatment program has been hugely successful and significantly reduced toxic chemicals that end up in sludge residuals and the wastewater discharge from those sewage treatment plants to our rivers and streams.

DEP experts have expressed serious concerns about toxics in fracking wastewater. DEP warned NJ sewage treatment plants in a July 20, 2011 letter:

As noted in the EPA letter, POTWs may accept this wastewater provided it complies with all Federal, State, and local requirements. However, the NJDEP has concerns regarding this wastewater because it may have elevated concentrations of contaminants that POTWs are not designed to treat, and therefore may pass through or interfere with the operations of the treatment works .

So, why would Governor Christie and the NJ business community want to turn back the clock on all this progress and return NJ to a major importer of toxic waste?

Just like NJ imported millions of tons of garbage from New York and Philadelphia, Gov. CHristie and corporate lobbyists now want to repeat that horrible history by importing billions of gallons of toxic fracking wastewater generated next door in Pennsylvania.

Have the Chamber of Commerce and BIA polled their members, who have invested these billions of dollars in pollution controls to reduce the environmental loading of toxic chemicals?

Why should the fracking industry be subject to weaker environmental requirements and be allowed to undermine those industry investments?

Today, the Chamber of Commerce, Business & Industry Association, Chemistry Council, and NJ Petroleum Council all opposed a bill that would ban the treatment in NJ of wastewater and residuals from fracking. (see S1041)

NJ depends on our rivers as sources of drinking water. Those rivers receive billions of gallons of treated industrial and residential wastewater from hundreds of sewage and industrial treatment plants.

Those plants are not designed to treat and dispose of the toxic chemicals and radiological contaminants known to be present in fracking wastewater.

The legislation is designed to protect NJ’s drinking water from disposal of treated fracking residuals in NJ waterways, which serve as sources of drinking water.

The bill passed both houses of the legislature last year  by huge majorities, but was vetoed by Governor Christie allegedly on the basis that it would violate the Commerce Clause of the US Constitution.

The intent of the bill is not to restrict inter-state commerce or provide an impermissible benefit to NJ’s economy.

The objective of the bill is to protect NJ drinking water and ecosystems from the impacts of treatment, disposal, and discharge of toxic waste to NJ waterways.

Fracking residuals are laced with radioactive and chemical contaminants that are not completely removed or destroyed by current treatment and disposal technology.

It is insane and contrary to 30 years of environmental law and policy to allow the treatment and disposal of chemical and radiological hazardous waste in NJ waterways.

Highlands Council Chairman Jim Rilee

Highlands Council Provided Sham Exemption to Fenimore landfill

Highlands Council could find DEP landfill plan inconsistent with Regional Master Plan

[Update below]

Full disclosure at the outset: I do not respect Highlands Council Chairman and Roxbury Mayor Jim Rilee

In fact, I opposed his NJ Senate confirmation as Highlands Council Chairman and questioned his veracity and integrity in testimony before the Senate Judiciary Committee – and I stand by that today.

So, tonight – between the second and third period of the Cornell – Clarkson ECAC quarterfinal hockey playoff game – I just read of Rilee’s strong words in his opposition to DEP’s plan to close the Fenimore landfill, reported in Rilee’s hometown Morris Daily Record:

Roxbury mayor, Bucco blast DEP

“We were extremely disappointed with the presentation made by DEP officials at our council meeting on Tuesday,” wrote Rilee, who also serves as the chairman of the New Jersey Highlands Council. “The health and safety of Roxbury residents must be the most important consideration in determining how to repair the significant damage done to our community because of the reopening of the landfill. Clearly, the DEP was not adequately prepared to respond to questions from residents.” …

“We are outraged that the DEP failed to provide adequate supporting data showing their remediation plan is the most effective way to protect the health and safety of Roxbury residents,” Rilee wrote. “The council demands that the state provide factual evidence that they are working on a solution that will ensure clean air and clean water for Roxbury’s residents. Anything less is completely unacceptable.”

Simply speaking, Rilee is full of shit – and he went a really long way in lying to the people of Roxbury about it all.

Despite the fact that Chairman Rilee properly recused himself from the vote, Rilee relies on a Highlands Council decision.

That decision all boils down to this Highlands Council exemption that Rilee relies upon – which is just flat out wrong. Let me explain.

According to the Highlands Council:

The closure of the [Fenimore] landfill qualifies for Exemption #15 under the Highlands Act (project is located in the Preservation Area and NJDEP is the regulatory authority to issue Exemption #15, which is for the remediation of contaminated sites). Thus, the landfill closure is not addressed by the Highlands Council Consistency Determination and Final Recommendation Report.

But the Fenimore landfill does not qualify for exemption #15.

By the plain language of the Highlands Act, Exemption #15 of the Highlands Act applies ONLY to “Industrial Site Recovery Act“ (AKA “ISRA”, or  cited as P.L 1993, c. 139) regulated facilities.

Here is the language of exemption #15 under the Highlands Act – note that it is specific to sites regulated under just one law:

(15) the remediation of any contaminated site pursuant to P.L.1993, c.139 (C.58:10B-1 et seq.);

The Fenimore landfill is NOT an ISRA facility, the landfill closure and remediation are not conducted pursuant to ISRA,  and is therefore NOT exempt under exemption #15.

It is as simple as that – the Highlands exception was totally bogus. Mr. Rilee is misleading the public about all that.

I know, I was an author of the Highlands Act.

All Chairman Rilee would have to do is have the Highlands Council declare that the DEP plan is inconsistent with the Highlands Act, regulations, and Regional Master Plan and that would kill it.

I  visited and photographed the Fenimore site (scroll down) before the controversy emerged; dabbled in the Fenimore landfill issues and have supported the residents there,  so I was frustrated by just reading the completely misleading and hypocritical bullshit Mr. Rilee spewed in attacking DEP – and readers know I am no fan of the current DEP crew or the Fenimore plan.

Let me explain and make this very simple here right now for tonight, because I’m coming off a huge Cornell win in overtime and I really don’t have adequate time to research and write this issue up properly.

Perhaps Mr. Rilee – as Chairman – should read Section 81 k. of the Highlands Act – I wrote it.

It requires that all DEP remediation – including landfill closure – be  consistent with the Highlands Act, regulations, and Regional Master Plan (with the exception of ISRA sites exempted under #15).

For clarity, here is the text, with a link to the Act:(@ p. 131):

This is not even close.

The Fenimore landfill closure plan is issued by DEP pursuant to the Solid Waste Management Act,(and other remedial laws cited in Section 81), laws which were specifically  included in Section 81.

[Note: The DEP’s consultant’s presentation notes the regulatory basis for the closure plan:

• There are Federal (40CFR258.60) and State (N.J.A.C.7:26‐2A) Regulations that govern landfill closure. 

The State landfill closure regulations are adopted by DEP pursuant to the NJ Solid Waste Management Act. – end note]

Under section 81 of the Highlands Act, that DEP landfill closure plan must be reviewed by the Highlands Council for consistency with the RMP.

The Highlands Act exemption #15 applied by the Highlands Council and cited Mr. Rilee clearly was not valid.

In contrast, the plain language of Section 81 was written to give the Highlands Council review powers over remediating of landfill sites in the Highlands.

How is it possible that this basic first inning issue has been missed for so long? By so many people? Where the hell was the Highlands Coalition?

And thank goodness Cornell won in overtime! It’s off to Lake Placid next weekend!

[Update: 3/17/14 – I need to clarify a few points.

The Highlands Council did not grant exemption 15, DEP did. But the Council did not challenge that exemption and instead recognized it for purposes of their review of the solar installation.

But all that is in the past.

Going forward, based on new information and a citizen’s challenge to their legal interpretation of the Act, the Council could assert jurisdiction over the DEP landfill closure plan pursuant to Section 81 authority I cite above.

The Council would then conduct a consistency review – it would be very difficult for DEP to demonstrate that the proposed closure plan would comply with the surface and groundwater non-degradation policy of the Highlands Act, as well as DEP’s own surface and groundwater quality standards. – end update]