WolfeNotes.com

The Yes Men Visit the Pinelands

The Yes Men are one of my favorite outfits – their stunts are almost always perfectly conceived and executed.

So, with the above headline and lead, I’m really blowing a real Yes Man-like stunt.

What the hell, here goes:

Pinelands Commission Launches New Climate Initiative

New Lisbon, N.J., – December 10, 2015 – The Pinelands Commission is proud to announce the launch of a significant new climate initiative to protect the precious Pinelands from current and projected impacts of climate change.

Using the best available current science, the Commission today begins a planning process to amend the Pinelands Comprehensive Management Plan (CMP).

The overall goals of the climate initiative will be to assure that the Pinelands region achieves the statewide greenhouse gas emissions reductions goals set by the NJ Legislature in the Global Warming Response Act and promote a rapid transition to renewable energy, while preparing to adapt to unavoidable warming.

Elements of of the climate initiative include:

• baseline scientific characterization of ecosystems and resources most vulnerable to climate impacts
• promotion of maximum feasible energy efficiency for projects subject to CMP review
• developing a supportive regulatory framework for renewable energy development
• zero carbon planning, design, and build standards and retrofit requirements
• discouragement and phase out of fossil fueled infrastructure

Chairman Lohbauer issued the following statement:

Mark Lohbauer, Chairman, Pinelands Commission

The recent release of Pope Francis’ encyclical “Care for Our Common Home” followed by his US visit, brought home the moral imperative to act to respond to the climate crisis.

The ongoing Paris COP21 climate treaty negotiations has focused the world’s attention on the climate crisis.

The Pinelands Commission, as an institution of the world with a public mission, understands the scientific and moral imperatives to act.

The Pinelands are already suffering the effects of climate change – the southern pine beetle is just one visible example of that. Scientists warn that the entire forest ecosystem – and all the majestic plants and animals in it – are threatened by climate change, which will bring earlier springs, later winters, more frequent and intense heat waves, droughts, and storms and alter rainfall patterns. These changes will disrupt the water cycle, habitat, and ecosystem functions – from migration and mating to flowering of plants and pollination. Even the productivity and viability of the cranberry industry, the region’s legacy industry, is at risk.

We must respond aggressively to this growing crisis and become part of the collective solution.

Therefore, I am extremely pleased to announce the launch – however belated – of the Commission’s climate initiative. 

In light of the recent scientific presentation by State Climatologist Robinson and a review by Commission staff of the best available science with respect to current and projected impacts on Pinelands resources the Commission has a duty to protect pursuant to the Pinelands Protection Act and by the CMP, the Commission is convinced of the reality and urgency of the climate crisis.

Therefore, the Commission has decided to do its part to contribute towards NJ’s greenhouse gas emission reduction goals established by the Legislature in the Global Warming Response Act.

Accordingly, today we will adopt a Resolution that directs staff to initiate an open, participatory and transparent public planning process to develop necessary amendments to the CMP to address energy, climate and infrastructure policies to protect Pinelands resources, in light of the best available climate science.

We expect that the scientific development and planning phase to take no longer than 180 days before we initiate the formal CMP regulatory phase.

Pending formal adoption of these CMP amendments pursuant to the Administrative Procedures Act, the Commission will suspend technical review of all pending applications regarding large scale greenhouse gas emitting energy infrastructure.

We welcome your support and participation in our endeavor.”

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“any measurable changes (including calculable or predicted changes) to the existing water quality”

There is a very simple 2 step regulatory logic that needs to be more widely understood, advocated, and enforced by NJ DEP.

Step 1 (NJAC 7:9B-1.5 Statements of policy)

These Surface Water Quality Standards apply to all surface waters of the State.

This means exactly what it says – the SWQS apply to every surface water and to all activities that might impact water quality (“cause or contribute”), even if the activity is not regulated by a DEP permit program and even if there is no explicit linkage in the permit program rules that requires compliance with SWQS as a condition of permit approval.

There is explicit linkage to the SWQS in the Freshwater Wetlands rules – among many other things, those rules form the basis for the Clean Water Act’s Section 401 water quality certification.

N.J.A.C. 7:7A-7.2 Standard requirements for all individual permits    

[(a)]

(b) The Department shall issue an individual freshwater wetlands or open water fill permit only if the regulated activity:  [1. – 4.]

5. Will not cause or contribute to a violation of any applicable State water quality standard;    

There is also explicit linkage to the SWQS in the WQMP rules, which in turn capture many other rules that are linked to the WQMP rules.

The NJ SWQS are required under the federal Clean Water Act and are reviewed and approved by the US EPA. The NJ SWQS are enforceable by the US EPA and can not be changed without the review and approval of the US EPA.

People can appeal to US EPA when NJ DEP fails to enforce EPA approved State SWQS.

Step 2 (NJAC 7:9B-1.5(d)2.iii.)

Category One Waters shall be protected from any measurable changes (including calculable or predicted changes) to the existing water quality. Water quality characteristics that are generally worse than the water quality criteria, except as due to natural conditions, shall be improved to maintain or provide for the designated uses where this can be accomplished without adverse impacts on organisms, communities, or ecosystems of concern.

There are three distinct aspects of the SWQS: 1) the antidegradation policy (i.e. for C1 waters, no measurable change to existing water quality); 2) the mandate to protect all existing uses (all living things, in stream and their aquatic and aquatic dependent habitat, including State listed T&E aquatic and aquatic dependent species, are existing uses); and 3) the numeric and narrative water quality criteria designed to protect physical, chemical and biological integrity.

There it is.

Now hold DEP and the polluters and developers accountable to strict enforcement of that standard.

As previously noted, Devils Tea Table is a fine ramble.

We stopped by last weekend during a day of photographing the Category One Delaware tributaries that would be crossed by the PennEast pipeline (post on that forthcoming).

Tank Farm – Woodbridge, NJ

[Update below]

NJ Spotlight published a superb analysis and mapping exercise today, looking at vulnerabilities and risks from NJ’s industrialized coastline and riverfront areas –  read the whole story and look at the interactive maps:

• NEW JERSEY’S INDUSTRIAL COAST REMAINS VULNERABLE TO THE NEXT EXTREME STORM
• INTERACTIVE MAP: NJ’S POTENTIAL POLLUTION RISKS OVER THE COMING DECADES

I need to add a few observations about how these risks are being ignored or recklessly mismanaged by the Christie DEP.

First of all, if NJ had a climate adaptation plan, these kind of risks and vulnerabilities could be addressed comprehensively and necessary new safeguards could be developed.

But NJ is the only northeastern coastal state that lacks a climate adaptation plan.

The Christie DEP has simply ignored – and thereby denied – the reality of climate change and done very little to address increased risks associated with climate related phenomena, like sea level rise, more frequent and intense storms and flooding, and increased storm surge.

Instead of planning for adaptation to climate change, the Christie DEP has dismantled virtually all DEP planning functions – from the Water Supply Master Plan to Water Quality Management Planning to the planning necessary to implement the Global Warming Response Act and to comply with the Obama EPA’s Clean Energy Plan.

The Christie decapitation of the DEP planners and dismantling of planning was done mostly for ideological reasons and an animus to government planning and intervention in markets.

Second, in addition to dismantling DEP’s planning programs, on the regulatory front, the Christie DEP has followed Governor Christie’s “regulatory relief” policy.

The Christie DEP is anti-regulatory, and the Gov.’s Executive Order #2 (regulatory relief, rely on federal minimum standards, cost benefit analysis, etc) has put a brake on developing any new regulatory initiatives.

The DEP should be embarked on a systematic plan to strengthen current regulations that address management of hazardous chemicals and hazards wastes in vulnerable coastal and riverfront locations, including:

• the TCPA program that regulates “extraordinarily hazardous substances”
• the DPCC program that regulates storage of oil products
• the RCRA program that regulates treatment, storage, disposal and cleanup of hazardous wastes
• the landfill closure and site remediation programs, and
• update and enforce the permit requirements of the Pollution Prevention Act

But none of that work is underway.

[Even worse, Foundation funded non-profit groups are praising that State abdication under the guise of “municipal sustainability “.]

The Gov. has disparaged regulation with mindless slogans like “job killing red tape” and – with no evidence – claimed that DEP oversight is a huge drag on the economy.  

The Governor’s Executive Order #2 revised the regulatory process to give business lobbyists an inside track and “advanced notice of rules“, in order “to prevent unworkable, overly-proscriptive or ill-advised rules from being adopted.”

That gives business lobbying groups like the Chamber of Commerce, NJ BIA, and Chemistry Council a virtual strangle hold and absolute veto over new regulations.

But the reality is actually worse than just ignoring these risks and the impacts and vulnerabilities of climate change.

DEP just proposed to weaken the flood hazed rules for landfills and contaminated sites and to grandfather industrial facilities from any new more stringent regulations – which is exactly the OPPOSITE of what they should be doing, as the NJ Spotlight story illustrates.  

Here is DEP’s justification for that reckless policy:

hazardous site investigation and cleanup activities and landfill closure activities often require grading and/or the placement of fill material, such as to construct a cap to prevent or reduce further groundwater contamination. In cases where these activities take place within flood hazard areas, the Department recognizes that it may not be possible or feasible to fully compensate for the volume of flood storage displacement necessitated by the activity.

In order to reduce the existing regulatory burden for these environmentally beneficial projects, the Department is proposing to exempt these projects from the flood storage displacement limitations of this section, provided several conditions are met to ameliorate any potential offsite impacts to flooding and the environment.” (page 187)

In addition to ignoring risks from hazardous waste sites and landfills, DEP is ignoring risks from industrial facilities that handle hazardous chemicals.

Instead of ratcheting down regulations to address these flood related risks, DEP if proposing to “streamline” regulatory requirements:

Permits-by-rule (N.J.A.C. 7:13-7)
The Department is proposing to recodify and amend two existing permits-by-rule and is proposing three new permits-by-rule to promote site monitoring and investigation activities, and activities related to the placement, storage and processing of hazardous substances.

A “Permit by rule” eliminates DEP review and public involvement (i.e. public hearing and public comment), essentially delegating compliance review to  the consultants that work for the polluters.

But DEP has gone way beyond procedural streamlining –

DEP proposed to GRANDFATHER (i.e. exempt) existing facilites from new regulatory requirements!

Permit-by-rule 52 (N.J.A.C. 7:13-7.52)
Existing N.J.A.C. 7:13-7.2(e)5, which authorizes the placement, storage, or processing of hazardous substances at a lawfully existing hazardous waste facility located in a regulated area, is proposed to be relocated to proposed N.J.A.C. 7:13-7.52 with amendments. The existing permit-by-rule limits the placement, storage, and processing of hazardous substances to “hazardous waste facilities,” which is defined at existing N.J.A.C. 7:13-1.2 to mean a “facility that is licensed by the State to receive, store and/or process hazardous substances, and which is operating in accordance with all applicable Federal, State and local laws.” However, any number of facilities may seek to place, store, and process such material, such as fuel distribution centers, automobile repair shops, and dry cleaners. The proposed permit-by-rule therefore addresses such facilities that were established prior to the adoption date of the existing chapter, have been in continuous operation since that date, and are operating in compliance with all Federal, State, and local requirements. The existing permit-by-rule references the proposal date of the existing chapter. However, in order to address facilities that lawfully began placing, storing, or processing hazardous substances in a regulated area between the proposal and adoption date of the chapter, the proposed permit-by-rule references the adoption date.

Under the proposed permit-by-rule, the footprint of the area in which the hazardous substances is stored within the riparian zone must not increase and no trees can be cleared, cut or removed in the riparian zone. This clarifies the Department’s intention regarding the permit-by- rule, which is to allow existing uses within the flood hazard area and riparian zone to remain, provided the size of the facility and the peak volume of material stored in the flood hazard area are not increased, while also preserving existing riparian zone functionality.”

Ignoring critical vulnerabilities and the mismanagement and deregulation of risks from hazardous waste sites, landfills and industrial facilities that store hazardous substances and hazardous wastes is just another good reason for the Legislature to veto the DEP’s proposed flood hazard rules.

The Resolution to veto these rules has passed the Senate (SCR 180) but is stalled in the Assembly.

We urge readers to call Assembly Speaker Prieto today and demand that he post ACR 249 for a vote before the session ends.

[Update: A reader just emailed me a recent related USGS Study I have not read yet:

“Strategy to evaluate persistent contaminant hazards resulting from sea-level rise and storm-derived disturbances—Study design and methodology for station prioritization” ~~~ end update]

[Update #2 –  just scanned that USGS strategy document and had some concerns:

1) the approach is limited to contaminants that are “sediment bound” – that seems to exclude basic water quality parameters for water column sampling.

2) the 100 year flood event – elevations are used to define the area of concern – it should be the 500 year storm  given climate change predictions for more severe storms;

3) the facilities are limited to TRI database – that ignores toxic sites and landfills and other non-TRI facilities that store hazardous substances and wastes

One big example are RCRA and CERCLA impoundments in river flood hazard areas. A breach can cause a pretty massive problem – w almost had that occur on the Raritan during Irene.

Anyone know if this USGS strategy document is final? Is there a public comment opportunity?

We call for Martin to resign – DEP scientific integrity on the line

DEP Commissioner Bob Martin

I vaguely alluded to the resignation issue at the very end of a prior post that attempted to shame the firm where DEP Commissioner Martin spent his career and rose to partner, the corporate consulting firm Accenture.

In that post, I also gave Commissioner Martin an opportunity to distance himself from the Governor’s remarks, by challenging him to issue a public statement about DEP’s assessment of the climate science.

Martin declined.

So, today, let me be very clear and up front and take the resignation issue head on.

If the man had even a shred of integrity, DEP Commissioner Martin would resign. Here’s why.

On a national stage, Governor Christie claimed that climate change is not a crisis, because he has seen no evidence that climate change is a crisis. Note how Christie claims to not be aware of the science:

“What I am saying is that it’s not a crisis. The climate’s been changing forever … I just don’t buy that. I just don’t buy the fact that it’s a ‘crisis,’ I just don’t.”

Pressed to answer why, Christie again answered, “Because I don’t believe it is. I just don’t see that there’s any evidence that it’s a crisis.”

Asked which scientists supported his assertion, Christie said: “I didn’t say I was relying on any scientists. I don’t see evidence that it’s a crisis.”  (NJ.com)

Why does Governor Christie apparently lack scientific evidence about climate change?

This is not the first time that Gov. Christie has claimed he had no scientific evidence or advice on climate change.

Way back in the wake of Superstorm Sandy, Gov. Christie pulled exactly the same line. As WNYC reported:

“I know there are some folks at Rutgers who are looking at whether climate caused all this, but I certainly haven’t been briefed in the last year, year-and-a-half on this,” Christie told WNYC’s Bob Hennelly last month. ~~~  Christie Deep-Sixed Climate Change Prep

Governor Christie had not been briefed on climate change for over 2 years, even AFTER Sandy?

We called out that lie 3 years ago: ( see WNYC report)

That turned out to be a losing gamble, and one, critics say, that reflects a pattern in Christie’s term in office.

In his first year, Christie closed the Office of Climate Change and Energy which had been created and given top-level priority under Jon Corzine.

It was run by the Department of Environmental Protection (DEP). Its mission was to ready the state  to handle more severe storms, heat and rising sea levels.

“So none of this work is getting done,” said Bill Wolfe, a 30-year-veteran of DEP and now a harsh critic.

“And if you want to get something done, the DEP has all the tools to get something done and they’ve chosen not to use those tools for political reasons, reflecting the Governor’s priorities and Governor’s policy,” Wolfe said. “And they just don’t want to own up to that.”

DEP Commissioner Martin is in Christie’s Cabinet and he has the primary responsibility to advise the Governor about climate change science.

There are only 2 possibilities, and they both point to resignation. Either:

1. Martin, for over 5 years, has failed to provide scientific information to and brief the Governor on the climate issue, and thereby has grossly neglected his duty and responsibility on the most important issue facing the planet and therefore must resign. Or;

2. Governor Christie is flat out lying about the science and Martin has remained silent and let that lie stand.

Again that would mean Martin lacks the integrity and courage for the job and has failed to defend DEP’s scientific integrity as an institution, and therefore should resign.

So, what’s it going to be Commissioner Martin?

What kind of man would let his reputation be smeared like that?

What kind of man would not defend his scientists and institutional integrity?

[End note: of course, logically, there is a third possibility: i.e. that Bob Martin himself is ignorant of the climate science.

But how could that possibly be for a man who rose to partner in “the world’s largest business and technology consulting firm”? ~~~]