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Senate Bill Conflicts With 45 Years Of NJ Environmental Law And DEP Planning And Regulation

A 30 Year Old Gov. Florio’s Executive Order And DEP Regulations Memory Holed

Policy Of Bill Would Take NJ Back 30 Years

NJ Spotlight reported favorably today on a Senate bill (S421) that would seek to divert 75% of organic waste currently going to landfills to composting facilities. One of the goals would be to reduce methane emissions. Sounds good, right? WRONG!

The story is highly misleading for several reasons, most importantly for creating the false impressions that:

1) legislation is required to control methane emissions from landfills;

2) legislation is required to address the management of food waste by generators, solid waste haulers, and composting and disposal facilities;

3) goals (as “targets”, no less) focused on reducing disposal – as opposed to “source reduction”, i.e. reducing generation – are somehow progressive;

4) legislative “targets” are enforceable and self implementing without regulatory mandates and funding; and

5) the Murphy administration and DEP are responding aggressively to methane emissions from landfills as part of a climate strategy.

All of that is totally false.

• The bill is totally unnecessary – DEP already has comprehensive planning and regulatory authority and has failed to enforce it.
• The bill conflicts with and undermines  DEP’s 30 year old “source reduction” and solid waste management hierarchy policy that seeks to reduce generation of solid waste as the priority policy and puts DEP in charge of solid waste management and recycling (by private industry and county and local governments).
• The legislative “targets” in the bill have no teeth and no funding.  There are no sanctions, i.e. nothing happens when the targets are not met. That’s the legal and practical real world difference between aspirational goals as “targets” and “regulatory standards”.
• The Murphy DEP has done nothing – and this bill would not require that DEP do anything – to regulate methane emissions. Just the opposite: DEP has issued approvals for natural gas pipelines, compressor stations, an LNG export terminal, and power plants – all of which emit huge volumes of methane. The bill provides cover for all that.

Of course, this reality is exactly the opposite of the impression readers would get from reading the NJ Spotlight story.

Apparently, the NJ environmental “activists” are either technically incompetent or duped again, because they either don’t know all this or they do know it and are intentionally letting DEP off the hook by supporting the bill and not criticizing DEP’s failure to aggressively regulate and plan.

Since the 1975 passage of the NJ Solid Waste Management Act (“Act”), the NJ Department of Environmental Protection (NJ DEP) has had comprehensive regulatory authority over all aspects of solid waste planning and management – from the source of solid waste generation, to transporters, and to management and disposal facilities – particularly to regulate to protect public health and the environment from the landfill disposal of solid waste.

This DEP authority includes the power to restrict exactly what specific waste materials a landfill can legally accept for disposal, e.g. DEP could impose limits on organic waste in solid waste permits and in DEP solid waste regulations.

Current DEP solid waste management regulations implement that Act, and, among many other things, mandate that all existing and new landfills collect landfill gas (methane).

Here are just a few of many DEP regulatory requirements:

7:26-2A.4. General prohibitions and requirements

[(a) – (d)]

(e)  No sanitary landfill shall be operated in a manner that would result in the degradation of the ambient air quality beyond the standards established by the Department pursuant to N.J.A.C.7:27.

[(f) – (l)]

(m)  The owner or operator of an existing sanitary landfill shall be required to design in accordance with N.J.A.C. 7:26-2A.7(f)3 or 4, and after Departmental approval of the design, construct, operate and maintain, a gas collection, venting and monitoring system when gas is detected at the points set forth at N.J.A.C. 7:26- 2A.7(f)3 or4;

Did you get that?

Let me repeat it for our “activists” friends and NJ Spotlight reporter Tom Johnson (who clearly knows better):

The owner or operator of an existing sanitary landfill shall be required to design in accordance with N.J.A.C. 7:26-2A.7(f)3 or 4, and after Departmental approval of the design, construct, operate and maintain, a gas collection, venting and monitoring system

Gov. Florio was the first to set lofty and enforceable goals for solid waste management. (See Florio Executive Order #8, 4/6/90)

Florio established NJ’s first source reduction policy and material specific and enforceable numeric composting, recycling, and procurement goals (See Executive Order #91).

And he backed them up with enforceable DEP Statewide State Solid Waste Management Plan and DEP regulations, solid waste and recycling permits, and field enforcement.

State level disposal taxes ($30 million/year) and bond act money ($168 million) funded County and local programs to implement the goals, backed by BPU Orders.

Tom Johnson knows all this but omits it from his misleading cover story.

The bill takes NJ policy BACKWARDS by over 40 years.

Tom Johnson then falsely describes former DEP manager Gary Sondermeyer as an “advocate”.

That is false. Sondermeyer currently works for private industry. He previously was a longtime DEP manager.

I worked with Gary for many years at DEP and can tell you that he was a huge barrier to reforms we sought during the Florio administration. Gary was a champion of the incineration industry and an opponent of using DEP’s legal powers to direct County solid waste planning.

While it is environmentally preferable to divert organic waste from landfills, the primary goal must be to reduce generation, as would be the approach if the Murphy DEP enforced DEP’s 30 year old “source reduction” policy.

[End Note: I sent Senator Smith a note requesting that he withdraw the bill because it is unnecessary, undermines DEP’s legal authority, and conflicts with 40 years of law, policy, and practice. If he wants to do more on these issues, he should pass a Resolution expressing legislative intent and hold DEP oversight hearings to hold DEP accountable to failure to enforce current law.

Smith is playing right into the hands of the right wingers who attack the “administrative state” and seek to limit DEP discretion under false legal doctrines (e.g. “non-delegation doctrine” and the “major questions doctrine”) that would require specific legislative delegations before an agency could act to regulate.

I also sent this note to Doug O’Malley:

Doug – I’m sending you this because apparently you are not aware of DEP’s legal powers to plan for and regulate solid waste and the NJ history of gubernatorial and DEP leadership on the issue which the current DEP betrays. Tom Johnson knows all this so it’s obvious that he’s either over the hill or intentionally providing cover.

DEP Issues Self Congratulatory Press Release For Recognizing The Urban Heat Island Problem They’ve Ignored For 20 Years

Another Example Of Maximal Rhetoric And Minimal Content

Human Health Impacts 

Rising temperatures will increase heat stress, especially for vulnerable urban populations, such as the elderly and urban poor. Climate models predict an increase in the number of  days per year with temperatures above 90oF in the New York City metro area, with a potentially significant impact on human health due to heat stress… By the 2020s, climate change could result in an increase in summer heat-related mortality of 55% and a more than doubling in related mortality by the 2050s.  ~~~  (NJ DEP, 2004)

The Murphy DEP folks are shameless and they think we are stupid.

Just after DEP bowed to political pressure and abandoned a proposed rule to replace fossil powered boilers (the first step in electrification of buildings), and Gov. Murphy ran away from his Energy Master Plan (and climate commitments), in a transparent attempt to change the subject, last week the DEP issued another self congratulatory and substance free press release:

• NEW JERSEY INTERAGENCY COUNCIL TO RELEASE SERIES OF ACTION PLANS ON HOW TO STRENGTHEN CLIMATE RESILIENCE – PUBLIC INPUT WELCOME ON FIRST PLAN FOCUSING ON EXTREME HEAT; WEBINAR SET FOR FEBRUARY 9

TRENTON – New Jersey’s Interagency Council on Climate Resilience is seeking public input on how the state should address extreme heat priorities and concerns as part of the Interagency Council’s development of a series of plans outlining how state agencies will incorporate climate resilience into their policies, programs and regulations. …

Research summarized in the New Jersey Scientific Report on Climate Change (2020) and the Climate Change Impacts on Human Health & Communities addendum (2022) shows that New Jersey is warming faster than the rest of the Northeast and the world. During summer 2022, New Jerseyans experienced the third hottest statewide average temperature on record since data collection began in 1895. High temperatures — when heat index values exceed 90 degrees Fahrenheit for more than two or three days — are associated with immediate and long-term health concerns, diminished air quality, and increased pressures on food and water supplies.

Notice how DEP cites studies released in 2020 and 2022, thereby creating the false impression that this is a new problem that they have taken leadership on. There’s a pattern here, see:

• Murphy DEP Issues Another Climate Science Report – And Does Nothing

This one is going the same way as the State Planning Commission’s “Guidance” on warehouse developments – it’s designed to create the appearance of leadership and action while doing absolutely nothing. Designed to fail.

Maximal rhetoric – minimal substance. That is the Murphy DEP’s motto.

Take credit for the work of others – and make it appear that you invented sliced bread – but take no political or personal risks and do no heavy lifting to actually get anything done. All process, no substance. That is the Murphy Administration and LaTourette DEP’s MO.

So let me break down this latest example.

After decades of scientific consensus on identifying a series of impacts of climate change, in a 2004 rule proposal that “first” regulated greenhouse gas emissions, the DEP finally “first” acknowledged the problem of the “urban heat island effect”.

Here is DEP’s 2004 scientific and legal basis for why GHG are “pollutants” subject to regulation under NJ State air pollution laws – from the 2004 rule proposal:

Air Quality Impacts

Rising ambient temperatures will exacerbate the formation of ground-level ozone, which will further challenge New Jersey attempts to meet national ambient air quality standards for protection of human health and welfare. Climate change models predict a significant increase in the number of days above 90oF, which will increase the frequency of high ozone days and enhance the secondary formation of PM 2.5 under these conditions…

Human Health Impacts 

Rising temperatures will increase heat stress, especially for vulnerable urban populations, such as the elderly and urban poor. Climate models predict an increase in the number of  days per year with temperatures above 90oF in the New York City metro area, with a potentially significant impact on human health due to heat stress (Kinney et al., Climate Change and Public Health, 2000). By the 2020s, climate change could result in an increase in summer heat-related mortality of 55% and a more than doubling in related mortality by the 2050s (New York Climate & Health Project, Assessing Potential Public Health and Air Quality Impacts of Changing Climate and Land Use, Columbia University, 2000). […]

Did you get that?

DEP documented huge increases in mortality – and that these deaths would be borne disproportionately by the poor and elderly.

So, did the Gov. and DEP declare an “emergency” and take immediate and bold action to reduce the risks? (I guess only exaggerated risks from black bears rises to an emergency with these cowards).

No, DEP did NOTHING FOR 20 YEARS.

Nothing. Despite the fact that greenhouse gas emissions were now legally regulated as “pollutants” and environmental laws and DEP regulations provided authority for DEP to not only regulate emissions, but to mandate “mitigation” of the impacts of greenhouse gas emissions.

DEP issued thousands of air pollution and land use permits over this 20 year period. Every single one of them could have included “mitigation” requirements to offset the impacts of development, including carbon emissions.

That kind of regulatory “mitigation” would include many things, including requirements to plant trees, design buildings, revise development plans, and acquire carbon “offsets” to mitigate carbon emissions and urban heat island effects

But while DEP did nothing to reduce emissions or mitigate the impacts of emissions, DEP did plenty to ignore, deny, downplay the problem and tell the public that they were aggressively responding – and the environmental groups either did nothing or praised DEP for that.

I wrote about that DEP failure a decade ago:

• Extreme Heat Compounds Injustice In Our Cities – Climate Change is Here

People living in urban areas, especially children, the elderly, and the poor, are most vulnerable to rising heat

In a 2014 followup, I urged that legislation be amended to begin to address the problem:

• Climate Change and Urban Forestry Must Be Part of NJ’s “Forest Stewardship” Program

2. Recognize urban “heat island” and related energy, clean air, public health, environmental justice, and aesthetic benefits of an urban forestry program

The basis for these recommendations is provided here:

• Two Key Words You Won’t Find in “Forest Stewardship” Bill

3. Establish an urban forestry program and set a time bounded numerical planting goal – 1 million trees in NJ’s cities.

Urban forestry is justified not only by science and public health, but by environmental justice, redevelopment, and aesthetic concerns.

I demanded a commitment to plant a MILLION trees in NJ cities. (That million tree proposal got no support from Legislators or even environmental or environmental justice groups. None.)

And that million tree commitment I demanded was just for funding and planting by the DEP’s urban forestry program. Of course, DEP had regulatory power to “mitigate” far more than this.

So, after 20 years of neglect, one would think that DEP would issue a public apology for failure, not some Orwellian memory holed self congratulatory press release.

Just two weeks ago, DEP issued another press release and held an event in Trenton, using their environmental puppet friends to claim that planting just 1,000 trees in Trenton would be “transformational”. (We blasted that, citing NJ Spotlight’s story:

In Trenton, the city government will work with the New Jersey Conservation Foundation to plant 1,000 trees in neighborhoods that have few or no trees. The project, called Throwin’ Shade – Greening the Capital City, won a grant of almost $1.4 million, and aims to trap carbon, reduce the urban heat-island effect and reduce stormwater runoff.

“We believe this project can be transformative in our capital city where residents are experiencing disproportionate impacts of climate change,” said Jay Watson, the foundation’s co-executive director. “Urban neighborhoods are dealing with the heat-island effect that causes higher ambient temperatures than in suburban and rural areas.” 

Once again, a case of maximal rhetoric and minimal substance.

Even worse, not only is DEP attempting to erase the past and falsely claim leadership while doing virtually nothing.

The Murphy Administration’s Interagency Council on Climate Resilience has actually been a huge political and bureaucratic barrier to progress on climate action. They also have emphasized ineffective voluntary, market based, local, and non-regulatory policies and programs.

Let me offer just one example:

Back in 2014, the Pinelands Commission finally pledged to incorporate climate change in the Pinelands Comprehensive Management Plan (CMP) see this post:

the Pinelands Commission, in The Fourth Progress Report on Plan Implementation (September 2014), first directed staff to develop climate policies and amend the Comprehensive Management Plan (CMP) to address climate risks and impacts. (see Action Plan Table on p. 166):

“The Commission will evaluate what options are available to address climate change through the CMP and in cooperation with other agencies.”

But the Commission still has not delivered on that 2014 commitment. Why is that?

The Commission is a participant in the Murphy Administration’s  Interagency Council on Climate Resilience.

Politically, it is not permissible for the Commission to get out in front of the Governor or the Murphy administration on any climate issue.

As a matter of policy, Pinelands Commission regulatory mandates under the CMP are discouraged. That small bore incremental regulatory role is reserved exclusively for DEP.

So the Murphy Interagency Council has effectively blocked and slowed progress on climate by the Pinelands Commission, despite the fact that the Commission is an independent agency under law.

Of course, all this science, history and regulatory reality is obscured by the highly spun and misleading DEP press release.

That’s just how Commissioner LaTourette rolls.

Cindy Zipf Does Her Thing

Cindy also supported Christie Whitman’s Bush EPA confirmation, after 8 years of Whitman’s “Open For Business” environmental budget cuts, deregulation, privatization, regulatory rollbacks, suppression of science, and attacks on whistleblowers (yours truly) in NJ – a confirmation that paved the way for Whitman’s later 9/11 lies that a federal judge found “shocked the conscience”: (see page 154, Senate hearing transcript): 

PS – Cindy was not asked to testify.

Sierra Club And NJ Audubon Were Quoted In Support Of Deal In DEP Press Release

The Toms River Community Was Not Fooled And Blasted The Deal

Murphy DEP Commissioner Shawn Latourette repeatedly has used environmental groups to provide green cover and politically support Gov. Murphy’s policies and DEP initiatives.

Because environmental laws, regulations, and science are complex, if a DEP Commissioner is willing to do it – and environmental groups are willing to let him get away with it – it’s very easy to manipulate the media and public opinion.

I recently ran into that cynical game in the Pinelands, where the PPA and NJCF supported DEP’s logging scheme.

That game has been used multiple times to dupe the press and the public, most recently when Doug O’Malley (Environment NJ) and Anjuli Matos (Sierra Club) supported Gov. Murphy’s abandonment of the Energy Master Plan.

But that cynical strategy was exposed and blown up in Toms River.

As we recently revealed, the Friday before the DEP BASF Toms River settlement deal was announced to the public, DEP held a secret meeting with environmental groups to brief them and seek their support, see:

• Murphy DEP Provided A Secret Briefing With Hand Picked Environmental Leaders On The Controversial BASF Toms River Settlement, Days Before It Was Made Public

That secret meeting resulted in a Monday DEP press release, where DEP quoted environmental leaders supporting the plan:

“New Jersey Audubon enthusiastically supports this use of Natural Resources Damages to create forests and parks in Toms River. … NJDEP and BASF have worked together to clean up and restore a contaminated area for residents to enjoy. This project is particularly significant in that the funding is going directly back to the community that experienced the damages from contamination. said Alex Ireland, President and CEO of New Jersey Audubon.

“The Ciba Geigy historic settlement is great news for open space and preservation in Toms River,” said Taylor McFarland, Conservation Manager for the Sierra Club, New Jersey Chapter. “More importantly, it is a step in the right direction for the people who have been suffering from the contamination of The Ciba-Geigy Superfund Site for decades. ~~~ DEP Press Release 12/5/22

These people’s credibility is shot. (And Audubon has done no work on DEP’s toxic site cleanup program issues or at the Ciba Geigy site. Neither has Ms. McFarland of Sierra Club, who’s comments were a complete reversal in Sierra’s longtime real work there. The fact that Commissioner LaTourette used these people reveals his ignorance as well.)

And there is a huge crack in the facade of the DEP PR machine.

The people of Toms River and the Toms River Mayor and Council were not buying that DEP PR bullshit.

They were shut out of and blindsided by the DEP deal and – contrary to the spin of the Trenton environmental groups – they don’t think it’s remotely acceptable compensation or restoration of the harms from the Ciba Geigy site.

The Mayor and Council adopted a Resolution opposing the plan and the Toms River community vehemently opposed the deal at a public hearing last Thursday night.

Associated Press reporter Wayne Parry got the community opposition aspects of the story exactly right: (but he let DEP Commissioner LaTourette mislead again about NRD legal and economic issues. I’ve written about that previously so will not here. Hit the link and read the whole story)

• Town where child cancer rose blasts deal over polluted site

So, let’s hope that the Toms River episode exposes the rancid schemes of Murphy DEP Commissioner LaTourette and his faux green sycophants.

Let’s hope the NJ media reporters now see what’s going on and stop taking DEP and green groups statements at face value and regurgitation DEP and green groups spin.

What’s left of their credibility is shot.

Murphy DEP Commissioner Denies DEP’s Legal Covenant Not To Sue Chemical Giant BASF

Toms River Community Hammers Murphy DEP

8. The Department fully and forever releases, covenants not to sue, and not to otherwise take administrative action against BASF and its corporate officers, directors, employees, predecessors, parents, successors, and subsidiaries, for any and all of the Department’s causes of actions for Natural Resource Damages arising from discharges at or from the Site. ~~~  DEP – BASF Settlement Agreement

[Update – Letter to LaTourette Below]

As I predicted, the Murphy DEP got hammered by the people of Toms River last night, who blasted DEP for failure to consult with them before cutting a secret and dirty deal with corporate polluter BASF at the Ciba Geigy Superfund site.

We documented and explained the 10 biggest substantive flaws in the deal in this post:

• Ten Good Reasons Why The Murphy DEP’s BASF Toms River Superfund Site NRD Deal Is A Corporate Giveaway That Must Be Withdrawn

We blasted the DEP’s failure to consult with the community:

• Hometown Of Ciba-Geigy Childhood Cancer Cluster Nightmare Opposes Murphy DEP Sweetheart Deal With Corporate Polluter BASF

We exposed DEP’s disgusting political campaign to sell it to the public and media:

• Murphy DEP Provided A Secret Briefing With Hand Picked Environmental Leaders On The Controversial BASF Toms River Settlement, Days Before It Was Made Public

And we blasted Commissioner LaTourette’s clueless lack of empathy for the community and victims of the childhood cancer cluster, and for his denial of the childhood cancer cluster (which the media continue to deny and fail to acknowledge actually occurred. For example, today’s NJ Spotlight story alludes to the childhood cancer cluster by reference to a prior $13 million legal settlement for cancer):

• NJ Gov. Murphy Must Fire DEP Commissioner LaTourette For His Handling Of Toms River Ciba-Geigy – BASF Deal

Read the NJ DoH Report:

“The study found that prenatal exposure to two environmental factors in the past were associated with increased risk of leukemia in female children. These exposures were: 1) access to drinking water from the Parkway well field after the time that the well field was most likely to be contaminated, and 2) air pollutant emissions from the Ciba-Geigy chemical manufacturing plant.”

[Update: 1/28/23 – Wayne Parry’s AP story get the cancer cluster.]

If LaTourette wants to brag about anything, he should brag about the DEP laboratory chemists who isolated and identified the unregulated chemicals that caused the cancer cluster. But he doesn’t want to talk about unregulated chemicals, because the public would be outraged to learn of that and his friends in the chemical industry and big Pharma would have his head on a platter.

So, of course, we were not surprised that the Toms River community was outraged.

Watch the NJ Spotlight video of some of the community’s testimony.

But I was appalled to hear Murphy DEP Commissioner LaTourette flat out lie – not spin, lie – when he said this: (starting at time 2:20)

Make no mistake, nobody’s off the hook.

If he said that to a judge in a Court of law, he could be disbarred.

BASF is legally off the hook

The DEP settlement includes a very broadly worded “release” and “covenant not to sue” – in perpetuity (as forever).

DEP would provide BASF with a release and covenant not to sue, in perpetuity (See also Appendix A):

8. The Department fully and forever releases, covenants not to sue, and not to otherwise take administrative action against BASF and its corporate officers, directors, employees, predecessors, parents, successors, and subsidiaries, for any and all of the Department’s causes of actions for Natural Resource Damages arising from discharges at or from the Site.

For a DEP Commissioner to look the media and the public straight in the eye and flat out lie is grounds for firing. Period.

We again call on Gov. Murphy to fire his ass.

[Update: I just sent the below letter to Commissioner LaTourette with copies to Legislative leaders and media:

Dear Commissioner LaTourette:

I just watched NJ Spotlight video of your remarks regarding the Department’s proposed Natural Resource Damage settlement with BASF at the former Ciba Geigy Toms River Superfund site.

You claimed that BSF was not “off the hook”. You said (about time 2:30):

“Make no mistake, nobody’s off the hook”.

As you know, the DEP settlement includes a very broadly worded “covenant not to sue” – in perpetuity (as “forever”). A CNS legally lets BASF “off the hook”.

DEP would provide BASF with a broad covenant not to sue, in perpetuity (See also Appendix A):

“8. The Department fully and forever releases, covenants not to sue, and not to otherwise take administrative action against BASF and its corporate officers, directors, employees, predecessors, parents, successors, and subsidiaries, for any and all of the Department’s causes of actions for Natural Resource Damages arising from discharges at or from the Site.”

For a DEP Commissioner to look the media and the public straight in the eye and flat out lie is grounds for firing. Period. If that false statement were made in a court of law, it could be grounds for disbarment. 

This is not some minor disagreement about political spin and media commentary. Th CNS is a core legal pillar of the settlement. You are a licensed lawyer.

I demand that you correct the public record for you false statements to NJ Spotlight, apologize to the people of Toms River, and resign,

Bill Wolfe