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Archive for April, 2014

Fenimore Fools Have Become Frauds

April 11th, 2014 4 comments

Local Site Plan Approval Required for Landfill Closure Plans at Legacy Landfills

DEP Surface and Groundwater Standards Must Be Met

DEP’s Closure Plan Must Be Consistent with the Highlands Master Plan

Strict Highlands Act Water Quality Standards Apply

A New 30 ppb Hydrogen Sulfide Air Quality Standard is Enforceable by Injunction

An Injunction Can Be Sought To Block All Work At the Site

New Law Expands Persons, Basis & Powers to Seek Injunctive Relief

Lots of stuff breaking in the Fenimore landfill battle recently, but I want to make a few points based on today’s news story.

You can read the bullets above and get the gist of this post.

I continue to be amazed by the lack of competent legal representation for the residents on Roxbury.

I’ll stick to just one glaring example raised in today’s news.

Here is section 3 of a law that was passed and signed by Gov. Christie on June 26, 2013. The law was passed in response to the Fenimore landfill fiasco.

Note that the law expressly states that landfill closure “shall apply for and obtain site plan approval”:

C.13:1E-125.3 Site plan approval required.

3. Notwithstanding the provisions of any other law to the contrary, any person who undertakes the closure of a legacy landfill, or the owner or operator of a closed sanitary landfill facility, who accepts for any reason, solid waste, recyclable material, contaminated soil, cover material, wastewater treatment residual material, dredge material, construction debris, or any other waste or material shall apply for and obtain site plan approval pursuant to the provisions of the “Municipal Land Use Law,” P.L.1975, c.291 (C.40:55D-1 et seq.).

So why is Roxbury Township Attorney and State Assemblyman Anthony Bucco saying exactly the opposite?

The Roxbury Register reports:

Bucco said that even if the Superior Court judge had sided with the township, it would not have ceased operations at the site.

“We have no authority to stop the DEP from remediating as they see fit. They need site plan approvals from the township eventually, but that is just for things like landscaping,” he said.

“There is nothing in the state law that says the township has the right to stop them. They still have primary jurisdiction. The state has pre-empted any town from having jurisdiction over landfill closures,” he said.

“However, the DEP must go before the Morris Soil Conservation District  because the state will not allow streams and water to be polluted by runoff,” he said.

Hard to know where to begin to correct the errors, omissions, and misleading statements here.

First, state law no longer preempts landfill closure for legacy landfills. Fenimore is a legacy landfill. Read the law above.

Second, State law says site plan review is required – it does not limit that review to to “things like landscaping”, so Bucco is just making shit up.

Towns have broad powers under the MLUL on issues that are not preempted by State jurisdiction. Landfill closure is no longer preempted by DEP. That means towns have the fill scope of MLUL powers, which are far broader than “things like landscaping”.

Third, the Morris County Soil Conservation District does NOT regulate surface water quality – or water pollution – or landfill closure.

That is DEP’s job and the Highlands Council’s job.

Under the state Water Pollution Control Act and federal Clean Water Act, DEP classifies all surface waters, including streams, in what as known as an “anti degradation designation”. DEP assigns designated uses for the streams, sets numeric and narrative criteria known as “water quality standards” to protect those designated uses, and issues pollution discharge permits to assure that water quality standards are met. DEP conducts monitoring and enforcement to assure that water quality standards are met. DEP mandates cleanup plans for waters that don’t meet standards

The Highlands Act built on clean water laws and created specific anti-degradation policy and designations, stricter water quality standards, larger 300 foot buffers, and stricter regulatory review procedures for activities that might degrade water quality – it’s too much to discuss in detail here.

DEP and the Highlands Council have parallel responsibilities for  groundwater protection.

Last, DEP has a very detailed set of regulations regarding landfill closure requirements. [Update note: See this post for a discussion of DEP landfill closure requirements, including links to regulations.]

How could licensed attorney – and State Assemblyman – Bucco not know all this?

Is he incompetent?

Or is he stupid?

Or is he covering for the Fenimore Fools and Gov. Chrisite’s DEP?

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Roxbury Redoubt: Christie’s DEP Has Become A Haven For Incompetent Hacks

April 10th, 2014 No comments

DEP Now Trying to Scare Neighboring Towns of Roxbury’s Fenimore Landfill

DEP Engaged In Unprecedented Fear Mongering and Political Lobbying

I must say that I was amazed and disgusted by how DEP dictated the so called closure plan for Roxbury’s Fenimore landfill.

After having created a huge odor problem at the Fenimore Landfill, DEP recently announced their landfill closure plan as a fait accompli, with absolutely no opportunity for the community to comment on the plan.

That DEP unilateral edict was preceded by months of intransigent refusal by DEP to even publicly talk to the people of Roxbury or their local government regarding the community’s many legitimate issues at the Fenimore landfill.

Frankly, in my almost 30 year experience, I have never seen anything even close to this level of incompetence and arrogant intransigence at DEP.

It was both a public relations and environmental nightmare – and it was completely created by the DEP.

But, as a former DEP career professional with some respect for the institution, I now have to say that I am embarrassed by even more shocking DEP behavior.

DEP has made a crude attempt to scare neighboring Towns into supporting their ill advised landfill closure plan, in a transparent attempt to undermine Roxbury residents’ demand to “truck it out”.

Specifically, I refer to an email by a DEP representative by the name of Cindy Randazzo, Director of Local Government Assistance, who wrote to neighboring Towns in a heavy handed attempt to scare them into supporting the DEP closure plan.

Randazzo is an embarrassment and a fixture in DEP Commissioner Bob Martin’s incompetent management team of hacks.

She has absolutely no training or experience in environmental management, not even a college degree. She is just barely qualified to work in the DEP cafeteria.

Randazzo does’t know an air model from a model airplane.

Today, Randazzo wrote this outrageous political screed to Roxbury’s neighboring towns:

From: Randazzo, Cindy <Cindy.Randazzo@dep.state.nj.us>
Date: Thu, Apr 10, 2014 at 2:45 PM
Subject: NJDEP – Fenimore Landfill Status Update
To: “Randazzo, Cindy” <Cindy.Randazzo@dep.state.nj.us>
Cc: “Rogers, Joseph” <Joseph.Rogers@dep.state.nj.us>

Dear Municipal Official: We are contacting you to make you aware of NJDEP’s plan for the long-term remedy of the hydrogen sulfide (H2S) gas issue at the nearby Fenimore Landfill in Roxbury Township. NJDEP has already begun to implement the long-term remedy of impermeable capping with vegetative cover and a gas control and treatment system.

There has been much discussion about the viability of excavating the landfill and trucking the material from the site versus capping the landfill.

Based on an extensive assessment of the site conducted by DEP’s technical experts and State-hired outside experts, we have concluded that excavating the landfill would result in the uncontrolled release of very high concentrations of H2S. This would be extremely unsafe for nearby Roxbury residents and businesses, but also would impact the surrounding region—including your town—over the next two or more years.

Based on NJDEP’s air model (see attached), it is very possible that plumes of gas ranging in concentration from 30 parts per billion (ppb) to more than 500 ppb could be generated during excavation. This would cause widespread, unacceptable public health concerns and general disruption to quality of life in your community. NJDEP will not allow the public to be exposed to these dangerous concentrations. Further, excavated material trucked off the landfill would be expected to continue to emit concentrations of H2S during transport, further exposing the public along those routes to H2S emissions. Therefore, NJDEP will not excavate the Fenimore landfill.

We are providing a web link that contains reports, fact sheets and the presentations given to Roxbury Township about NJDEP’s plans (http://nj.gov/dep/fenimore/). Included is the air model that shows the potential dispersal of H2S gas if the landfill were excavated.

Should you have any questions or if you are interested in meeting with our technical team, please let me know.  I would be happy to arrange such a meeting.

Sincerely,

Cindy W. Randazzo
Director
Office of Local Government Assistance
New Jersey Department of Environmental Protection
401 E. State Street
P.O. Box 402
Trenton, NJ 08625-0402
Office:  609-633-7700
Cell – 609-575-3806
email:  cindy.randazzo@dep.state.nj.us

The DEP should have thought about all of these problems BEFORE allowing the reopening of the landfill and new disposal of 400,000 cubic yards of construction and demolition waste, including wallboard which is known to generate H2S odors.

It is completely inappropriate and intolerable for a government agency to be engaged in this kind of political lobbying and fear mongering.

Randazzo should be fired and Commissioner Martin should be called before Legislative oversight committees to explain just what the hell Randazzo was trying to do.

Martin and his fellow hack Ms. Randazzo are engaged in political games – pitting Towns against their neighbors –  that have no place in DEP.

None.

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EPA Enforcement Strategy Targets “Large, Complex Cases” To Set National Precedent For Large Facilities

April 10th, 2014 No comments

Dupont Pompton Lakes Is National Poster Child For RCRA Corrective Action Program

Today,  US EPA released a new “Strategic Plan” to guide the agency over the next 4 years.

The EPA Plan sets forth a series of strategic programmatic goals and management performance metrics.

Having just gotten off the phone with my friends in Pompton Lakes who have been battling Dupont to cleanup their site for over 25 years, this one caught my eye:

  • Cleaning Up Communities and Advancing Sustainable Development: EPA protects communities by requiring responsible parties to conduct cleanups, saving federal dollars for sites where there are no other alternatives. Aggressively pursuing these parties to clean up sites ultimately reduces direct human exposures to hazardous pollutants and contaminants, provides for long-term human health protection, and makes contaminated properties available for reuse.

And this one:

EPA will continue to focus federal enforcement resources on the most important environmental problems where noncompliance is a significant contributing factor, and where federal enforcement attention can have a significant impact. This strategy means EPA’s top enforcement priority will be pursuing large, complex cases that require significant investment and a long-term commitment. We anticipate this strategy will result in a higher level of public health protection because of the significant impacts associated with the large cases, and the precedent they set for performance of large facilities across the country.

Our commitment to the largest most complex cases that have the biggest impact necessarily means that we will be doing fewer cases overall. This approach best protects public health not only by addressing the most serious pollution problems, but also by directing EPA’s resources to important cases that may not be addressed by states because the environmental and human health risks or the patterns of noncompliance are broad in scope and scale such that EPA is best suited to take action.

If EPA is looking for a large complex site where enforcement can have a significant impact and set national precedent for performance at large facilities, I can think of no better target than Dupont Pompton Lakes for RCRA Corrective Action enforcement.

If EPA took aggressive enforcement action there, there would be major national ramifications across several key EPA program areas, including Superfund, RCRA, “vapor intrusion”, and the Clean Water Act.

The Dupont site is one of the nation’s largest “vapor intrusion” cases, with over 450 homes poisoned by off site releases of toxic chemicals from the Dupont facility. Those vapors have been linked to statistically significant higher cancer rates by ATSDR.

Over 3 years ago, in January 2011, EPA proposed to expand the Superfund program to consider risks from vapor intrusion.  That proposal – strongly opposed by industry – seems to have fallen into a black hole.  The Dupont case could shine a light on that important issue as well.

The Dupont site is part of EPA’s RCRA Corrective Action Program, an important but low profile and neglected program. The RCRA Corrective Action Program  regulates 3,779 major industrial hazardous waste management facilities with contaminated soil/and or groundwater.

EPA has designated RCRA Corrective Action enforcement a national priority. Pulling the enforcement trigger at Dupont would lend some credibility to that designation.

The Dupont site scored over 75 on the Superfund HRS, so if EPA were to take enforcement action that also would illustrate the comparative risks from Superfund versus RCRA sites and would call national attention to lagging cleanups at hundreds of RCRA Corrective Action sites.

The Dupont site has massive off site releases of toxic heavy metal mercury, which have contaminated sediments in Pompton Lake and downriver sediments, fish and wildlife.

Similar to the GE Hudson River PCB Superfund case, the Dupont site raises issues of national concern regarding bioaccumulation of toxics in sediments and Natural Resource Damages, again both national priorities.

And last, but not least, the Dupont Corporation is one of the worlds largest, most profitable, and politically powerful chemical companies.

Dupont has been dragging its feet in cleaning up the site and controlling off site releases since 1988, essentially shielded from federal enforcement by a weak State DEP ACO.

Dupont is currently contesting a final EPA RCRA Corrective Action permit to remediate mercury sediments before the Environmental Appeals Board.

There is no remedial action in place to permanently cleanup groundwater or the shallow aquifer causing the vapor intrusion problem.

Almost 30 years after Congress amended RCRA in the 1984 Hazardous and Solid Waste Amendments, the State of NJ still has not received delegation of the RCRA Corrective Action Program and has failed for over 25 years to mandate a permanent site wide cleanup, including remediation of massive off site releases.

Vapor intrusion is causing direct ongoing human exposures at hundreds of homes. Highly contaminated sediments present a uncontrolled risk to fish and wildlife, and human health as well. Significant portions of the site have not been cleaned up, for over 35 years. The site fits the profile of an “imminent and substantial risk” case.

IF EPA were to take aggressive enforcement action against Dupont, that would send a huge signal that the agency has a stiff spine and is not afraid to follow the science and enforce the law to hold the most powerful corporate polluters accountable.

It would also send a message to State agencies that EPA will no longer tolerate using State Consent Orders as a shield to block federal enforcement.

So, there you are EPA – have at it. Go after Dupont. The case has all the bells and whistles.

I dare you.

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Christie’s Pinelands Veto Reveals Hypocrisy

April 10th, 2014 No comments

[Update: Bergen Record story nails it:

“It is a shame that the protections of the Pinelands and the independence of the Pinelands Commission must be sacrificed for the political ambitions of scandal-plagued Governor Christie,” said environmental blogger Bill Wolfe, a former employee of the state Department of Environmental Protection.  ~~~ end update].

Just a quick followup on yesterday’s post on Gov. Christie’s veto of the minutes of the Pinelands Commission,  killing a proposed 5% raise for staff.

I want to focus today on the points made in the Gov.’s letter to expose his rank hypocrisy.

The Gov. blasted the Commission for “confiscation” of funds dedicated for conservation purposes to pay staff and for “gross abuse of authority”.

Meanwhile, the Gov. has “confiscated” more funds dedicated to environmental programs to pay for his tax cuts and corporate subsides than the last 4 Governors combined – almost $1 billion in Clean Energy Funds alone.

The Gov.’s DEP budgets have “confiscated” hundreds of millions of dollars in revenues from dozens of special environmental funds and Bond accounts to pay for DEP salaries, including depleted Green Acres funds, enforcement settlement agreements, and the constitutionally dedicated Corporate Business Tax.

How does he possibly have the balls to criticize the Pinelands Commission for “confiscation”?

And who can fail to see the huge fat elephant in the room – ahem… – the Gov.’s own serial and vindictive “abuse of authority”.

Whether that abuse of authority is measured by a record number of legislative vetoes; absolute failure to accommodate Legislative oversight; attacks on the Courts and judicial independence; over-reaching Executive Orders; relying on “Red Tape and Sandy “Czars” to assure unilateral control; unilaterally taking NJ out of RGGI, or the current mounting scandals and criminal investigations of Christie Administration abuses, there can be no doubt that Governor Christie has broken new ground in “gross abuse of power”.

[For the best descriptions of the Gov. style in this regard by national publications, see:

But the icing on the hypocrisy cake is how Christie portrayed the Pinelands Commission as selfish and self interested, for “helping themselves to funds dedicated for the benefit of many”.

Helping themselves? The Pinelands Commissioners are not paid – the raise was for staff. Those staff protect the Pinelands for the use and enjoyment of the many – including future generations.

By  doing so, the Gov. put himself on the side of the public, defender of the public interest from these selfish bureaucrats at the Commission.

That’s the nuanced riff of the Gov.’s budget speech attack line: “94 cents of every new dollar in spending goes to public employee  pensions and healthcare benefits”.

The same old attack against so called greedy teachers and public employees, who selfishly seek pay raises, pensions, and health benefits at the expense of taxpayers, while squeezing out needed spending on other important priorities.

It is divisive, nasty, and flat out wrong on the facts and policy.

If the Gov. cared about facts, he’d know that Pinelands staffers have been under a 4 year pay freeze. Their salaries are significantly lower than DEP pay scales, for virtually the same work.

The Commission has 23 unfilled positions under the Governor’s austerity budget. The Commission once had 4 PhD scientists, now it has none as professionals leave for higher pay at DEP and the private sector.

Pinelands science, planning, management, and overall natural resource protections have suffered by this shortsighted austerity approach.

All these inconvenient facts are ignored in the Gov.’s shameful attack on the Commission.

But, by playing on legitimate resentment of middle and working class people who are being crushed by the economy (i.e. the 99%), these demagogue tactics divert attention from the Gov.’s agenda and policies that benefit the wealthy and subsidize corporations (the 1%).

And they well serve the Gov.’s national political ambitions.

But that’s just how the Gov. rolls.

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Gov. Christie Vetoes Pinelands Commission Minutes – Kills Staff Raise

April 9th, 2014 No comments

Gov. Issues Letter Harshly Critical of Commission

Gov.’s Retaliation Sets Stage For Stacking Commission To Reconsider Pipeline

[Update: 4/10/14: NJ Spotlight story:

“This is round one in laying the political groundwork to replace commissioners and reverse the pipeline rejection,’’ said Bill Wolfe, New Jersey director of the Public Employees for Environmental Responsibility. “Obvious retaliation for pipeline vote.’’   ~~~ end update]

In another example of Gov. Christie’s retaliatory and vindictive nature, today the Gov. issued a letter vetoing the minutes of the Pinelands Commission, thereby killing a proposed 5% staff pay raise approved by the Commission on March 14. 

The Gov.’s letter attacks the Pinelands Commission in harsh terms for a “gross abuse of authority”:

pines veto1

pinjes veto2

While the veto ostensibly was focused and justified on budgetary concerns and larger collective bargaining issues, this letter is not about those relatively small potatoes.

This is about flexing the Gov.’s muscle, restoring his scandal sapped “Mojo”, and reversing the Commission’s rejection of the pipeline in January.

Keep in mind that since that vote, Senator Van Drew has severely criticized the Commission and mounted an aggressive campaign to force the Commission to reconsider the pipeline and approve it under a “waiver” provision.

van drew1Van Drew has said that Senate President Sweeney and Gov. Christie both support that strategy.

In addition to killing the well justified 5% staff raise, the Gov. has accomplished at least 4 other political objectives with this letter:

1) by criticizing the Commission for a “confiscation” of funds and a “gross abuse of authority”, the Gov. sets the stage and provided a cover story for replacement of Commissioners whose terms have expired.

Commissioners Jackson and Lloyd are Gubernatorial appointments whose terms have expired. Jackson voted NO on the pipeline. Lloyd was forced to recuse, but was a virtually certain NO vote.

Should Gov. Christie replace those two Commissioners,  he could swing a losing 7-7 tie vote to a winning 9-6 vote

The Gov. is now set to stack the Commission and reverse the Commission’s rejection.

Only the Democratically controlled Senate can block his replacement appointments by refusing to confirm them.

But, the Judiciary Committee was unwilling to block Christie Highlands Council appointments who publicly opposed the Highlands Act as unconstitutional and urged its repeal.

Plus, Senate President Sweeney has joined Senator Van Drew’s Campaign to force the Commission to reconsider the pipeline vote and issue approval under the “waiver” provision of the Comprehensive Management Plan. Sweeney controls the Judiciary Committee, and is likely to push through the Gov.’s appointees.

2) The Gov. has provided a harsh example of what happens to folks who defy him.

By this strong move, he sends a message that he is not made powerless by the scandal.

This fits the “Christie comeback – the Gov. has his Mojo back” meme his backers are spinning.

Christie will break the Pinelands Commission to provide fodder for the “Christie Comeback” spin.

3) The Gov. hates public employee unions.

This move sticks a finger in the eye of CWA, who represents pinelands staffers, and sends a hard line negotiating message on larger state employee contract negotiations..

4) The Gov. recently has touted the 2% cap he imposed on local government budgets.

The Gov. also demanded that the Democratic Legislature make the expiring 2% cap on arbitration settlements permanent.

This veto of the Pines 5% pay raise allows the Gov. to play to  his fiscal conservative base and reaffirm his conservative credentials and loathing of public employees and their unions.

It is truly a shame that the protections of the Pinelands, the integrity of the CMP,  and the independence of the Pinelands Commission ALL must be sacrificed for the tawdry political ambitions of scandal plagued Gov. Christie.

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