WolfeNotes.com

The DEP held the first of 3 public hearings today in Morris Township’s Freylinghuysen Arboretum on the Christie DEP’s proposal to repeal and totally re-write the Water Quality Management Planning rules (WQMP). This was the only opportunity for north jersey residents to weigh in on the proposal.

About 50 people attended, but only 12 or so testified, all in strong opposition to the DEP’s proposed repeal and “streamlining” of current DEP Water Quality Management Planning (WQMP) rules that govern the location and capacity of sewer service areas and allowable density of septic systems.

No supporters of the proposal testified. They were lurking in the audience however, monitoring the debate.

These rules have long been controversial, given the significant implications for land use and water resources.

Those testifying in opposition to the DEP’s proposal included NJ Sierra Club, NJ Conservation Foundation, Highlands Coalition, Hackensack Riverkeeper. NY/NJ Baykeeper, Musconetcong Watershed Association, and citizen clean water advocates from Lake Hiawatha, Mendham, Denville, and Bordentown.

Notably absent were all the watershed management groups that have fought the numerous “sewer wars” and worked on implementing watershed planning and water quality initiatives, who have long defended strong WQMP rules, such as conservation groups and lands trusts, ANJEC, Environment NJ, Clean Water Action, NJ Audubon, American Littoral Society, Stonybrook Watershed Assc., Pinelands Preservation Alliance, Passaic River Coalition, and many, many, others.

Let’s hope they all get their people out at the next two hearings, scheduled as follows:

Tuesday, November 17, 2015
Time: 5:00 P.M. to 8:00 P.M.
Location: Gloucester County Clayton Complex 1200 Delsea Drive Clayton, NJ 08312

Monday, November 30, 2015
Time: 10:00 A.M. to 1:00 P.M.
Location: New Jersey Department of Environmental Protection

Public Hearing Room
401 E. State Street, 1st floor Trenton, NJ 08625

There were very strong words voiced in opposition –

Some called the proposal a “surrender”, that it would “eliminate important safeguards”, was a “deliberate attempt to favor private economic concerns over public clean water values”, was based on “horrible week kneed weasel words”, allowed builders to determine the presence of T&E, and created “unrealistic development expectations” that would force people to seek hardship waivers.

Julia Somers of the Highlands Coalition questioned who DEP was protecting and said “DEP had lost its way” and “forgotten it mission”. She blasted the DEP’s concern with protecting speculative investment values of farmlands.

Highlands advocates lambasted the proposal as weakening and circumventing Highlands Act and Regional Master Plan land use and water resource protections.

Several people criticized DEP’s elimination of various fundamental planning technical requirements, including no longer requiring consideration of environmentally sensitive areas, build out analyses, riparian buffers and steep slope protections, non-point source pollution controls, mandatory municipal zoning changes and septic pump out ordinances.

DEP’s proposed elimination of current requirements to consider available water supply in mapping sewer service areas and elimination of various municipal zoning and ordinance requirements triggered particular outrage: “that makes no sense at all” concluded Ms. Somers.

I testified in very general terms and will be writing in detail about the flaws in the proposal as soon as I can get my thoughts collected. I took offense to the Hearing Officer, Dan Kennedy (a licensed professional planner) asking if any press were present and referring them to DEP press officer who was there to spin. That’s the first time I’ve ever experience a hearing officer doing that in 30 years of practice. I said it was indicative of the Christie DEP’s elevation of spin over substance and escalating practice of misleading the public about complex regulatory rollback policies.

In the meantime, I encourage folks to spread the word, review the proposal for themselves and attend the next public hearing. The public comment period closes December 18.

We will need to reach out to US EPA and to legislators to request another legislative veto, as it appears that the Christie administration is fully committed to this rollback agenda and simply does not care what the public thinks.

[End Note: I failed to mention that Wilma Frey of NJCF presented strong testimony that highlighted several issues where the DEP proposed rule was weaker than and/or set up conflicts with the Highlands Regional Master Plan. Conflicts include DEP’s failure to recognize and incorporate in WQMP rules the RMP standards or methodologies on definitions of environmentally sensitive areas, capacity analysis, nitrate dilution, water deficits, and other important technical and planning policies. DEP not only created conflicts, but failed to establish adequate hierarchical and technical relationship between the WQMP and RMP or how conflicts would be reconciled. DEP swept all this under the rug and merely stated that they would “coordinate” with the Highlands Council.

The proposal would repeal the following requirements, which requires a consistency determination by the Council and defers to the Highlands Council: (NJAC 7:38-1.1(k))

The Department shall approve a Water Quality Management Plan amendment only after receiving from the Highlands Council a determination of consistency with the Regional Master Plan to be incorporated by reference in (l) below, when adopted by the Highlands Council. Pending completion of the Regional Master Plan, the Department shall not approve a Water Quality Management Plan amendment for a project proposed in the planning area or preservation area without first obtaining a recommendation from the Highlands Council.

So, if there were a plan the Council opposed, they could kill it in two ways: either by not acting or by finding it inconsistent with the RMP.

That power is gone.

The DEP confirms this significant change in policy on mandatory Council consistency determination and deference to the Council on page 90, as follows:

The Department has determined that it is appropriate to seek input from the Highlands Council, although the final decision on any WQM plan amendment or revision rests with the Department.

[PS – in non-conforming towns in the Planning Area, the proposed Flood Hazard “riparian zone” rules would replace the current C1 buffers (SWRPA) along C1 streams – this weakens protections, as we documented in review of those rules. This is inconsistent with legislative intent under the Highlands Act because it weakens existing protections and will result in additional degradation of water quality. While the Act did not mandate 300 foot buffers in the Planning Area, it was enacted with the knowledge that DEP provided those buffers for exceptional C1 waters in the Planning Area.

[Update: 11/12/15 – I just got an email from Jenn Coffey of ANJEC. Although I’ve written tens of thousands of words on hundreds of issues, I don’t recall ever receiving an email from Ms. Coffey.

I’ll let readers judge the merits of the exchange:

Mr. Wolf, (sic)

I have been informed and confirmed  that in your recent WolfeNotes incorrectly states (sic) that ANJEC was absent from the recent WQMP hearing. ANJEC was present and is in the process of assessing the changes and impacts of the proposed rules. As you know, there are 2 addition (sic) hearing (sic) and more than a month before the comment period on the rule is closing. (sic)

I respectfully request that you correct your recent post.

Sincerely,

Jennifer M. Coffey

Executive Director

ANJEC

My reply:

My name is spelled Wolfe.

I spoke with Dave after the hearing.

Reading comprehension matters – ANJEC did not testify, and you will note that groups are categorized with respect to testimony – ANJEC’s testimony was notably absent. No fact error.

(had I been asked to clarify instead of correct and been given the respect of spelling my name correctly and – given I have no personal or organizational relationship to Coffey – at least a thank you for all the work I do for FREE, I might have responded differently).

No Rate or Revenue Caps on Private Corporate Entities

Austerity Driven Financial Crisis In Public Sector An Excuse To Privatize

Another Threat to Clean Water & Power Grab by Governor Christie

It has become increasingly obvious that, for many years, NJ has failed to invest in our antiquated water infrastructure and that those failures to invest have created multi-billion dollar financial deficits that will force significant rate increases across the State to generate funds to maintain and upgrade infrastructure to meet clean water standards.

Infrastructure deficits and likely significant water and sewer rate increases served as justification for passage of recent legislation to promote privatization of NJ’s water and sewer systems.

In the wake of passage of that law promoting privatization of public water and sewer systems, the Christie Administration now is quietly pushing a legislative initiative that would starve local sewer authorities of adequate revenues to provide clean water, creating financial crisis and making them ripe for privatization.

Yesterday, the Senate Budget and Appropriations Committee heard a bill (S72 [1R]) that would impose the Christie Administration’s 2% revenue cap on regional sewer authorities, and subject their budgets to oversight by the Governor’s Office: (Statement)

DEP Abdicates State Role In Water Quality Planning

The Market and Local Government Know Best

Tomorrow is the first of three public hearings on the Christie DEP’s proposed repeal and total re-write of the Water Quality Management Planning rules (AKA “sewer rules”).

I plan on writing a detailed series on these rules like I did on the Flood Hazard debacle – but for now, will just provide a short excerpt that really captures the essence of the Christie DEP’s views of planning, regulation, the free market and DEP’s role.

Basically, they turn back the clock on a more than 50 year evolution in NJ’s land use and water resource planning tradition – a total surrender to “the market”: (DEP proposal):

Notably, as evidenced in building permit data from the New Jersey Department of  Community Affairs, market conditions are resulting in development and redevelopment in urban centers, “first ring” suburbs, and other areas with preferred access to public transportation. Studies from the National Association of Realtors report that the next generations of home buyers/renters are seeking to reside closer to jobs and amenities in mixed use, higher density communities with better access to public transportation. The data also supports that the construction of multi-family homes (requiring centralized wastewater) is now a greater percentage of the construction market than single-family homes (typically on ISSDSs). Employers and developers are making investment and locational decisions based on these trends, and the Department anticipates that these investments and decisions will continue in the foreseeable future. These trends represent a positive trend for the environment. Redevelopment, rehabilitation, and infill development means that undeveloped areas are under reduced development pressure and may remain undeveloped longer or, perhaps, in perpetuity through other Department initiatives, such as the Green Acres or Blue Acres compensated land preservation programs, or through other land preservation techniques. 

My good friend, Bill Neil writes:

Why did I ever worry, and plead and petition?  The magic of the market, and good business common sense, took care of it all.  Why not just sunset all the regs, land air and water on Jan. 1, 2016?  DEP could be run with a staff of ten to issue “advisory” only bulletins of moral suasion.

Yup – and contrary to the 900 plus pages of obfuscation in the Flood Hazard rules, the DEP makes no effort to mask that radical abdication:

.. the Department has determined that it is an appropriate time to revise its regulatory approach to water quality management planning. This determination is also consistent with Governor Chris Christie’s Executive Order No. 2, which requires the Department and other State agencies to review their rules for redundancies.

The Department’s revised approach to water quality planning is based on the principle that “planning” involves the ability to consider a range of options to solve or avoid problems; planning should not be directive or rigid. As part of its revised approach, the Department is reducing the number of analysis required, and revising the timing of their required submission, simplifying the water quality planning process, and committing to providing assistance to local communities as necessary to address water quality issues within particular communities. The Department will no longer mandate that the WMP agencies conduct all of the analyses previously required as part of the WMP, or that local communities downzone or enact nonpoint source pollution prevention ordinances as a condition of WMP adoption. Determinations regarding the land use impacts of future development and the means to address wastewater treatment needs are more appropriate at the permitting stage, when detailed site specific information is available. While the information and analyses required under the existing 2008 rules are valuable, it is not necessary to require all of it during the planning process. At the planning stage, it is a more appropriate use of Department resources to focus on delineating sewer service areas and to work collaboratively with local governments to identify unmet capacity needs and to evaluate nitrate loads.

 This proposal signifies the end of an era of State land use and water quality planning – a total surrender to the market:

DEP has abandoned the State role to local government – and then DEP gutted all the local government ordinance and planning requirements! DEP says that all that planning was “too difficult”, that capacity based planning was to “directive” and “rigid”.

No need to consider environmentally sensitive areas or whether there is enough water supply or sewer capacity to serve new development in water and land planning – we can fix all those problems in our rubber stamp permit process!!!!!

More to follow as this debate unfolds.

Environmental Community The Latest Group To Manipulate Fear

President Bush lied about Iraq’s link to 9/11 to justify an illegal and immoral war of aggression that killed millions of people and will cost $4 trillion.

The National Security state has lied and exaggerated terrorist threats to illegally spy, vastly expand domestic surveillance, violate laws and eliminate Constitutional rights and privacy protections.

Bush shamefully used that same fear for partisan political purposes, see: Tom Ridge: I Was Pressured To Raise Terror Alert To Help Bush Win

Local police have used the terrorism threat to militarize police forces and expand military tactics in local policing.

Schools, libraries and virtually all public institutions have incorporated expensive and invasive monitoring and security systems, wasting vast amounts of money that should be put to better uses.

President Obama has expanded illegal wars, adopted a kill list, and launched drone assassinations across the world.

Politicians, racist, anti-Muslim nativists, gun nuts, and every kind of right wing paranoid faction have used terror as an excuse to wage a war of hatred and ignorance.

The FBI has classified animal rights and environmental activism as domestic terrorism.

The press has exploited terrorism for profit, to keep the Amercan public afraid and docile, and as an excuse to avoid real investigative reporting.

I can’t think of anything more ugly and that has done more harm than the way the concept of “terror” has been abused.

So, my head exploded twice today, when I noticed the terror card being played in additional arena’s.

Here is the spokesman for the North Dakota oil industry using terror to criticize Obama’s decision to kill the Keystone XL pipeline: (Bergen Record AP story)

“The most baffling part of this decision is that this administration would rather continue importing oil from countries that fund terrorism than from our very own resources and our Canadian allies,” Cutting said.

That is a disgraceful lie.

But the oilmen are not alone – unfortunately I have to call bullshit on NJ environmentalists for the same abuses to scare people about off shore LNG risks: (Bergen Record AP story)

“This is terribly dangerous,” said Jessica Roff, who traveled from Brooklyn to attend the hearing “It’s volatile, it’s dangerous, it’s a terrorist threat.”

The same sentiment was echoed by those who attended the public hearings in New Jersey…

“They call it Liberty Natural Gas, but with this project, it’s the opposite,” said Jeff Tittel, director of the New Jersey Sierra Club. “Patrick Henry famously said, ‘Give me liberty or give me death.’ With this proposal, we may get both. If there is a storm or accident, this is a giant bomb off our coast.”

It’s not just a press soundbite – but part of an organized campaign –

LNG tankers and facilities pose serious security risks, as they are vulnerable to terrorism and hijacking in the busiest port on the east coast and near JFK airport.

Just stop the terror fear mongering.

What is truly frightening and scientifically justified are fears of climate chaos.

If you want to really scare people, start educating the public about that.

Superfund decisions should be based on science & risk, not politics & economics

[Update: 11/9/15 – Small victory. The Senate Environment Committee held the bill today – many thanks to Acting Chair Linda Greenstein for listening to testimony (listen here). More to follow. ~~~ end update]

This might sound innocuous, or even a good idea, but it’s not: (Assembly statement)

The bill requires the Department of Environmental Protection (DEP) to prepare a report and conduct a public hearing prior to recommending a site for inclusion on the federal Superfund list.

Let me explain why. (I previously wrote about this legislation last March when it was considered by the Assembly).

Under the guise of providing transparency and additional public involvement in how the State DEP recommends to US EPA that specific NJ sites be listed under the federal Superfund program, tomorrow the Senate Environment Committee will hear proposed legislation (A2340/S2562) that would inject politics into whether DEP makes Superfund listing recommendations to EPA.

The bill grew out of DEP’s recommendations to US EPA that sites in Assemblyman Greenwald’s district be added to the Superfund list.

Greenwald and local officials opposed the DEP’s listing and apparently DEP made the recommendation to EPA without first consulting with local officials and Assemblyman Greenwald.

The legislation is Greenwald’s retaliation for that.

If you want to understand the kind of political and economic issues that Greenwald is advocating, just look at how he intervened and the arguments he made to block a US EPA proposed Superfund listing of the Troy Chemical site in Newark, more than 80 miles from his district. These concerns have little to do with better protections for public health and the environment – and note how Greenwald mentions his proposed legislation.

As I wrote: (wonks can read the full post to get all the details):

Greenwald wrote to EPA on March 18, 2013.  His attack was not limited to the EPA proposed Troy Chemical NPL listing, but also praised Troy Chemical, criticized the entire Superfund program as a “time consuming cost prohibitive process“, and mentioned his NJ State legislation. Greenwald wrote  [see EPA Administrative Record for full letter]:

Designating Troy’s Newark facility a Superfund site only would serve to hurt its current manufacturing employees, a segment of New Jersey’s workforce that is critically important to the state’s long term economic growth. Having recently been briefed on Troy’s current remedial efforts pertaining to its Newark property, I believe that this remedial effort must be allowed to continue without delay….

As an elected official I feel it is necessary to also mention that Troy is a good corporate neighbor to Newark. …

Additionally, I am the sponsor of legislation at the state level that would require the New Jersey Department of Environmental Protection to prepare a report and conduct a public hearing prior to recommending a site for inclusion on the federal Superfund list

As a State Assemblyman, Greenwald has little political influence on US EPA. Fortunately, EPA did the right thing a Troy Chemical and finalized the proposed Superfund listing that Greenwald opposed.

But as a leader of the Assembly Democrats (and former Budget Committee Chair), Greenwald wields significant power over NJ DEP, a power he has used to leverage DEP in the past.

The Superfund Listing Process is a Black Box

We’ve done a lot of work of the Superfund listing process, both at US EPA and at NJ DEP.

That effort including filing a Freedom of Information Act (FOIA) lawsuit against EPA to procure documents regarding the Superfund listing process in NJ.

We were disturbed by what we found (for details, see:

• TWENTY SEVEN NEW JERSEY SUPERFUND-ELIGIBLE SITES LEFT OFF LIST –EPA Still Reviewing Status of Unknown Number of Garden State Toxic Hotspots

Washington, DC — New Jersey already has the most Superfund sites of any state but could have many more according to U.S. Environmental Protection Agency documents obtained through a lawsuit by Public Employees for Environmental Responsibility (PEER).  More than a score of sites in New Jersey pose risks equal to or greater than Superfund-listed sites, yet these uncontrolled sites were not added to the Superfund National Priority List for clean-up by EPA.

Full Report:

• EPA DISCLOSES NINE MORE SUPERFUND-ELIGIBLE SITES IN NEW JERSEY – Thirty Five Sites Passed Over for Superfund Relief; One More Site Still Pending

Washington, DC — Days after revealing that it did not act on 27 Superfund-eligible sites in New Jersey, the U.S. Environmental Protection Agency now admits that there are nine more such sites, according to agency records surrendered in a lawsuit brought by Public Employees for Environmental Responsibility (PEER).  EPA is still considering Superfund listing for one site in Essex County but has decided not to list the other eight.

Full Report:

There is no doubt that the decision to recommend a site for Superfund listing has significant public health, environmental and economic implications for a community and that the DEP should have scientifically based reasons for making a listing recommendation and that the public should have a voice in those decisions.

There are dozens of towns in NJ that have sites that meet or exceed Superfund listing qualification in terms of risks to human health and the environment that are not being listed on Superfund or that DEP is not recommending to EPA for listing. Pompton Lakes is the poster child for that, where local officials and Dupont have blocked EPA Superfund oversight and RCRA enforcement.

This is especially critical because EPA has adopted a policy that essentially requires State support before EPA will list a site, so DEP can frustrate feral law by inaction.

Real Reforms Lacking

If Assemblyman Greenwald were serious about reforming the Superfund listing process and providing opportunities for the public to be aware of risks in their communities and participate in the process, he would include things like:

• require disclosure of all Superfund “Hazard Ranking Scores ” (HRS) at all NJ sites. An HRS is a point based system to estimate risks to human health and the environment. Sites that score greater than 28.5 are eligible for Superfund listing. The public has a right to know about these risks.

• require that DEP adopt and implement the “Remedial Priority System” (RPS), including direct DEP oversight of high risk sites, and disclose a list of risk based sites in NJ. The RPS was required by amendment to the Spill Act over 30 years ago, and more recently mandated by the 2009 Site Remediation reform Act. The legislature mandated that the RPS be adopted and implemented in DEP’s cleanup program by May, 7, 2010 (one year after enactment). DEP has flouted that legislative mandate for over 5 years.

• Include vapor intrusion pathway in DEP Report, risk screening, and risk assessment Here is EPA’s Federal Register Notice proposed revision of the Superfund revision to include vapor intrusion (Jan. 31, 2011):

http://www.epa.gov/superfund/sites/npl/a110131.pdf

• Provide a public petition process to request that DEP conduct a Preliminary Assessment, SIte Investigation, and Hazard Ranking Score This recommended amendment is based on existing federal CERCLA and EPA Superfund Guidance, that provides an opportunity for the public to nominate sites for EPA’s NPL consideration. See this link for that EPA Guidance, which can be used to draft this amendment. The EPA Guidance lays out the content requirements and review process for a petition.

http://www.epa.gov/superfund/programs/npl_hrs/papetition_oct02.pdf