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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.